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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


September 19, 2011

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

(Super. Ct. No. JV124883)

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

In re J.M.

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

The Fresno County Juvenile Court found that minor J.M., age 16, was described by Welfare and Institutions Code section 602 in that he committed grand theft from a person. (Pen. Code, § 487, subd. (c).) Because the minor was a resident of Sacramento County, the matter was transferred there for disposition. Following preparation of a social study report, the Sacramento County Juvenile Court continued the minor as a ward of the court, continued his placement in a group home, and reinstated his wardship status on terms and conditions including a period of community service.

The minor contends, and the Attorney General concedes, the matter must be remanded to the Sacramento court to determine in its discretion whether the grand theft is a felony or a misdemeanor. We shall remand for further proceedings.

FACTS

The facts of the minor's offense are not at issue and may be briefly stated. In November 2009, the 14-year-old victim was a student at a Fresno high school. As the victim walked toward a restroom, the minor approached him from behind, spoke some words, passed him, and then turned to address him. The minor asked the victim if he had money, and the victim said no. The minor then asked the victim whether he had a telephone. The victim answered in the affirmative but explained that it was broken. Upon further questioning, the victim explained that the broken telephone was in his pocket. The minor attempted to touch the telephone in the pocket but the victim moved away. The minor next asked the victim if he could see the telephone. In response, the victim removed the telephone from the pocket. At that point, the minor "snatched" the telephone from the victim's hand and walked away.

DISCUSSION

I

The minor contends, and the Attorney General concedes, the matter must be remanded to the Sacramento County Juvenile Court with directions to determine in its discretion whether the grand theft offense is a felony or a misdemeanor. We accept the Attorney General's concession.

The minor's offense, grand theft from a person, is an alternate felony misdemeanor, commonly called a "wobbler." (Pen. Code, §§ 487, subd. (c), 489, subd. (b).) Welfare and Institutions Code*fn1 section 702 states in relevant part: "If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony." "The requirement is obligatory: ' . . . section 702 means what it says and mandates the juvenile court to declare the offense a felony or misdemeanor.' [Citations.]" (In re Manzy W. (1997) 14 Cal.4th 1199, 1204.) "[N]either the pleading, the minute order, nor the setting of a felony-level period of physical confinement may substitute for a declaration by the juvenile court as to whether an offense is a misdemeanor or felony. [Citation.]" (Id. at p. 1208.) Because the Fresno County Juvenile Court had not made the determination during its jurisdictional proceedings, the Sacramento County Juvenile Court had a duty to do so at disposition. (Cal. Rules of Court, rules 5.790(a)(1), 5.795(a) (rule).) Accordingly, we shall remand the matter to the Sacramento court with directions to designate the offense a felony or misdemeanor.

II

The minor contends the Sacramento County Juvenile Court erred at disposition by failing to set the maximum period of confinement as required by section 726, subdivision (c), and rule 5.795(b). We agree.

Section 726, subdivision (c) provides: "If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court."

Rule 5.795(b) provides: "If the youth is declared a ward under section 602 and ordered removed from the physical custody of a parent or guardian, the court must specify and note in the minutes the maximum period of confinement under section 726."

"Section 726(c) deals with 'the maximum term of confinement in juvenile wardship cases generally,' while section 731(b) deals with 'juvenile court discretion in setting the maximum term of confinement in [Department of Juvenile Facilities (DJF)] cases.' [Citation.] Thus, even when a minor is not committed to the [DJF], section 726(c) requires the juvenile court to specify that the minor may not be confined for a period in excess of the maximum term of imprisonment which could be imposed on an adult convicted of the offense that brought the minor under the jurisdiction of the juvenile court. By its express terms, however, section 726(c) applies only '[i]f the minor is removed from the physical custody of his or her parent or guardian . . . .'" (In re Ali A. (2006) 139 Cal.App.4th 569, 573.)

In this case, the Sacramento County Juvenile Court continued the minor in his group home; he was not returned to parental custody or committed to DJF. Thus, the court was required to comply with section 726, even though it had no duty to comply with section 731. (See In re Ali A., supra, 139 Cal.App.4th at p. 573.) The Attorney General's briefing, which deals primarily with section 731, may be understood to acknowledge at least implicitly that the court was required to comply with section 726. Because it did not do so, we shall direct the court on remand to comply with section 726.*fn2 The court shall also address the issue of predisposition custody credit.

DISPOSITION

The true finding on the grand theft allegation is affirmed. The matter is remanded to the Sacramento County Juvenile Court to determine in its discretion whether the grand theft offense is a felony or a misdemeanor and to determine the minor's maximum confinement time and his entitlement to predisposition custody credit.

We concur: RAYE , P. J. MAURO , J.


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