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

February 23, 2012

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



(Super. Ct. No. 65946)

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

In re K.S. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 minor K.S. admitted to misdemeanor possession of a firearm by a minor (Pen. Code, § 12101, subd. (a)). He was declared a ward of the juvenile court and placed on probation. The juvenile court set a maximum term of confinement of six months, imposed three days' confinement in juvenile hall with three days' credit, ordered that the minor serve an additional 30 days on the electronic monitoring program (EMP), and imposed various fines and fees.

On appeal, the minor contends; (1) the disposition order improperly granted discretion to the probation officer to commit him to juvenile hall, (2) the juvenile court was not authorized to declare a maximum period of confinement or issue orders regarding his removal from custody, (3) various penalty assessments are unauthorized, and (4) the fine collection fee should be modified. We affirm the judgment.

We need not set forth the facts underlying this offense as they are unnecessary to the resolution of this appeal.

DISCUSSION

I

Improper Delegation of Authority

The dispositional form signed by the juvenile court reads in pertinent part: "If minor fails to complete . . . EMP . . . in a satisfactory manner, he/she may be returned to Court for further disposition JJC to serve the remaining as straight time." The box next to the phrase "JJC to serve the remaining as straight time" was checked and the other box was not checked.

The minor contends the juvenile court's order improperly delegates the authority to place him in juvenile hall to the probation department. He asserts the order allows him to be placed in juvenile hall without the court having first conducted a "particularized assessment" of his suitability for this disposition, a violation of his due process rights.

In order to increase the custody level of a ward, a petition must be filed pursuant to either section 777 of the Welfare and Institutions Code (a supplemental petition) (unless otherwise set forth, all subsequent statutory references are to the Welfare and Institutions code), section 602 (an original or subsequent petition) or by a combination of sections 602 and 777 (a unitary petition). (In re Michael B. (1980) 28 Cal.3d 548, 554; see id. at pp. 552-555.) Therefore, the minor could not be placed in juvenile hall after failing to complete EMP without a juvenile court hearing on the subsequent or supplemental petition. (§ 777 ["[a]n order changing or modifying a previous order by removing a minor from the physical custody of a parent . . . and directing . . . commitment to a county institution . . . shall be made only after a noticed hearing"].)

While a juvenile court cannot authorize a probation department to increase the minor's custody level without another petition and hearing, we do not read this order as authorizing such a procedure. Instead, the order simply notifies the minor that, as a possible consequence of his failure to complete EMP, he "may be returned" to juvenile hall. In the absence of evidence to the contrary, we presume the juvenile court was aware of and followed the applicable law. (In re ...


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