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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE


December 29, 2010

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

Contra Costa County Super. Ct. No. J0601918

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

In re A.M. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

A.M. appeals from a juvenile court dispositional order. He challenges only the total custody credits he received in connection with a placement in the Youthful Offender Treatment Program (YOTP). The juvenile court credited him with 468 days. A.M. contends he should have been credited with 477 days. The Attorney General contends A.M. stipulated to the credit, alternatively, urges a remand, and absent that, asserts A.M. should be credited 475 days. We agree with A.M. and order the disposition order modified to give him 477 days of predisposition custody credits.

BACKGROUND

We recite only the facts relevant to the issue raised on appeal. On May 2, 2008, a subsequent delinquency petition (Welf. & Inst. Code, § 602, subd. (a))*fn1 alleged A.M. escaped from his probation officer during transport and subsequently escaped from a peace officer after remand. On May 19, 2008, he pled no contest to the first allegation, the second was dismissed, and he was committed to youth camp.

On December 19, 2008, his probation officer filed a section 777 probation violation notice alleging, inter alia, A.M. failed to follow camp rules and engaged in disruptive behavior, including participating in a fight with rival gang members. On January 12, 2009, he admitted a probation violation, and was committed to the camp for an additional 30 days.

On June 15, 2009, his probation officer filed another section 777 probation violation notice alleging A.M. was taken into custody for getting into a fight after his court-ordered curfew. On July 6, 2009, he admitted a probation violation, and was placed on electronic monitoring for 30 days, following which his camp parole was to be unsuccessfully terminated.

On October 13, 2009, his probation officer again filed a section 777 probation violation notice alleging, inter alia, A.M. tested positive for THC and admitted marijuana use and failed to regularly attend school. On November 2, 2009, his probation officer filed yet another section 777 probation violation notice alleging A.M. had left home and his whereabouts were unknown. A bench warrant was issued for his arrest. He was arrested April 18, 2010.

On May 4, 2010, A.M. admitted the allegations of the October 13, 2009, probation violation notice. The November 2, 2009, notice was dismissed, and he was ordered placed in the YOTP. The court set his section 726, subdivision (c), maximum time of confinement at three years four months, and awarded 468 days' secure custody credit. A.M. filed a timely notice of appeal on May 20, 2010.

DISCUSSION

The Attorney General initially contends A.M. stipulated to the custody credits he received and thus cannot challenge the credits on appeal. However, this is not a case where the parties agreed to specific custody credits as part of a negotiated disposition. Rather, at the outset of the disposition hearing, the court identified the total credit calculation in the probation report--468 days--and asked if both parties "accepted" the calculation. Both parties replied in the affirmative. No other mention was made of the credits. As the Attorney General acknowledges, both parties mistakenly accepted the total in the probation report, since it was incorrect. We do not view this mistaken acceptance as a binding stipulation foreclosing A.M. from seeking to correct the total credit calculation on appeal.

The Attorney General alternatively contends we should remand the matter to the juvenile court. The Attorney General first suggests Penal Code section 1237.1 requires that a request to correct custody credits be made to the trial court before the issue can be the sole basis for an appeal.*fn2 As the Attorney General acknowledges, the only published case that has addressed whether Penal Code section 1237.1, applies to juvenile matters is In re Antwon R. (2001) 87 Cal. App. 4th 348 (Antwon R.). In Antwon R., the Court of Appeal held section 1237.1 was not applicable to juvenile proceedings, as juveniles are neither "defendants" nor are they "convicted," the terms used in the statute. (Antwon R., at pp. 350-353.) Antwon R. relied heavily on the Supreme Court's decision in In re Joseph B. (1983) 34 Cal.3d 952 (Joseph B.), which held Penal Code section 1237.5--dealing with appeals following guilty and nolo contendere pleas--did not apply to juvenile proceedings. "By its terms, Penal Code section 1237.5 does not apply to minors. The statute refers to defendants who stand convicted upon a guilty or nolo contendere plea. Further, minors charged with violations of the Juvenile Court Law are not 'defendants.' They do not 'plead guilty,' but admit the allegations of a petition. Moreover, 'adjudications of juvenile wrongdoing are not "criminal convictions." ' [Citation.]" (Joseph B., supra, at p. 955, italics omitted.) Antwon R. is now nearly 10 years old, and Penal Code section 1237.1, which was enacted in 1995 (stats 1995, ch. 18, § 2 (Assem. Bill No. 354)), has remained unchanged. Given that the Legislature could have amended section 1237.1 after Antwon R. to include juvenile wardship dispositions or could have added a comparable provision to the Welfare and Institutions Code, we see no reason not to follow Antwon R.'s holding, which permits A.M. to challenge his total credits in the first instance on appeal.

The Attorney General secondly contends remand is appropriate because of "lack of clarity" in the record as to A.M.'s credits. We disagree. To begin with, the Attorney General concedes A.M. is entitled to at least 475 days of secure custody credits, and only disputes credit for the time A.M. was taken into custody on June 4, 2009, for fighting. The Attorney General notes the prosecutor dismissed the new charges and thus contends the custody time was not attributable to a probation violation. However, as A.M. points out, his probation officer filed a section 777 probation violation notice in connection with the incident, as well as for violating curfew, and A.M. subsequently admitted the curfew violation. A.M. was therefore entitled to credit for these additional two days he was in custody. Under the circumstances, we have "enough information" to correct the predisposition credits. (Antwon, supra, 87 Cal.App.4th at p. 353.)

DISPOSITION

The juvenile court is directed to correct its order of May 10, 2010, to reflect that A.M. is entitled to 477 days of predisposition custody credits. In all other respects, the judgment is affirmed.

We concur:

Margulies, Acting P. J.

Dondero, J.


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