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In Re Christopher M., A Person Coming Under the Juvenile Court v. Christopher M

December 7, 2010

IN RE CHRISTOPHER M., A PERSON COMING UNDER THE JUVENILE COURT LAW. THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
CHRISTOPHER M., DEFENDANT AND APPELLANT.



The opinion of the court was delivered by: Kline, P.J.

In re Christopher M. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Christopher M. was found to have committed first degree robbery and first degree burglary, with an enhancement on each count for personal use of a firearm, and committed to a program at juvenile hall. He contends the true finding on the enhancement attached to the burglary count must be reversed because the enhancement does not apply to the offense of burglary. He further contends the juvenile court erred in its calculation of his maximum term of confinement and his custody credits. We agree with these contentions.

STATEMENT OF THE CASE

Appellant was first adjudged a ward of the court (Welf. & Inst. Code, § 602) on March 6, 2008, on the basis of a sustained petition alleging misdemeanor trespass.*fn1 He was placed on probation, to reside at home.

On April 18, 2008, appellant was charged with violating probation by being suspended from school for disruptive behavior. On May 9, he was additionally charged with violating probation by having gang graffiti in his bedroom. Appellant admitted the two violations on May 13, and was detained in juvenile hall. On May 28, he was released to his mother and placed on electronic monitoring for 30 days.

On October 20, appellant was charged with violating probation by failing to enroll in school. He was arrested on December 17, after marijuana plants were found in his home, and another probation violation was charged. On December 23, the violation for growing marijuana was sustained and the violation for failing to enroll in school was dismissed. Appellant was detained in juvenile hall, where he had been in custody since his arrest. On January 8, 2009, he was committed to the Orrin Allen Youth Rehabilitation Facility (OAYRF) for 90 days. His maximum period of custody was stated to be six months, and he was given 23 days of credit.

On March 4, 2009, appellant was charged with violating probation because he had been removed from OAYRF for throwing urine-soaked sandals at another resident. He admitted the violation and 24 days were added to his commitment. He was subsequently released from OAYRF on May 1, 2009. As of that date, he had served 159 days in custody.

On July 2, appellant was charged with violating probation by testing positive for cocaine. On the same date, a supplemental petition was filed under Welfare and Institutions Code section 602, subdivision (a), alleging two felony counts, first degree robbery in concert (Pen. Code,*fn2 § 211/212.5, subd. (a)/213, subd. (a)(1)(A)) of Shawn Johnson, and first degree burglary (§ 459/460, subd. (a)) of Shawn Johnson. An enhancement for personal use of a firearm pursuant to section 12022.53, subdivision (b), was alleged in connection with each count. The prosecution gave notice that it would seek to aggregate the prior sustained trespassing charge. Appellant was detained in juvenile hall.

On October 20, appellant admitted the July 2 probation violation and disposition was deferred pending determination of the supplemental petition. A contested jurisdictional hearing resulted in the court sustaining the allegations of the supplemental petition, and appellant was detained in juvenile hall pending disposition. After a contested dispositional hearing, on March 19, 2010, appellant was continued as a ward and committed to the Youthful Offender Treatment Program (YOTP) at juvenile hall, with a maximum custody time of 30 years six months and 262 days of custody credit.

Appellant filed a timely notice of appeal on April 16, 2010.

STATEMENT OF FACTS*fn3

At approximately 8:15 a.m. on July 1, 2009, a 911 operator received a call in which he did not speak to a specific individual but heard an argument in the background and someone saying, "I'll get the money." About three and a half minutes later, the operator initiated a call which was answered by Shawn Johnson. Johnson said three Hispanics, two males and a female, armed with a rifle with a clear clip, had just kicked in the door to the apartment where he was staying and were outside in front of the house with a black Lexus and a green ...


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