In re P.S. CA4/2

• Court: California Court of Appeal
• Decided: October 4, 2013
• Docket: E057953
• Status: Unpublished

Opinion

Filed 10/4/13 In re P.S. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re P.S., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, E057953 Plaintiff and Respondent, (Super.Ct.Nos. J244979 & v. DL043744)

P.S., OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Brian D. Saunders,

Judge. Affirmed.

Robert Booher, under appointment by the Court of Appeal, for Defendant and

Appellant.

 On transfer from the Superior Court of Orange County for disposition.

1 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Meagan J. Beale and William M.

Wood, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant P.S. (minor) appeals from the juvenile court’s declaration

of his maximum term of confinement in case No. DL043744. We find no error and

affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND

In San Bernardino County case No. J244979, minor admitted to committing an

attempted first degree residential burglary. (Pen. Code, §§ 459, 460, 664.) In return,

minor was declared a ward of the court and placed in the custody of his mother on

various terms and conditions of probation.

On November 18, 2012, minor was caught leaving the garage of a residence

located in Orange County with a knit glove, a screwdriver in his pant pocket, and some

crisp, paper clipped $2 bills in his sweatshirt pocket. The occupants of the residence

stated that various items were missing from their home, including an iPod touch, around

$140 in cash, a small safe, jewelry, and four $2 bills held together with a paper clip.

On December 12, 2012, in case No. DL043744, the Orange County District

Attorney’s office filed an amended petition charging minor with first degree residential

burglary (Pen. Code, §§ 459, 460, subd. (a)), receiving stolen property (Pen. Code, § 496,

subd. (a)), petty theft (Pen. Code, §§ 484, subd. (a), 488) and misdemeanor possession of

burglary tools (Pen. Code, § 466).

2 The jurisdictional hearing began on December 14, 2012. The receiving stolen

property charge was reduced to a misdemeanor and the People dismissed the petty theft

charge. Following testimony, the juvenile court found true the allegations that minor

committed a residential burglary, misdemeanor receiving stolen property, and

misdemeanor possession of burglary tools. The court also found the maximum

confinement period to be six years two months as follows: six years for the burglary

offense and two months (one-third the middle term) for the possession of burglary tools

offense; the court stayed the receiving stolen property charge pursuant to Penal Code

section 654. The matter was thereafter transferred to San Bernardino County where

minor resided for disposition.

The San Bernardino County Juvenile Court accepted the case on January 2, 2013.

On January 16, 2013, the San Bernardino County Juvenile Court continued minor

as a ward of the court and placed him on probation in the custody of his mother on

various terms and conditions. At that time, the court agreed with the prosecutor that the

Orange County Juvenile Court had set the maximum term of confinement at six years two

months. Later, the prosecutor said, “The correct max is 6 years, 10 months.” The court

probation officer replied, “Thank you,” and the proceedings were concluded. It appears

that the additional eight months was attributed to the attempted residential burglary

finding in the San Bernardino County proceeding, case No. J244979.

3 II

DISCUSSION

Minor contends that the juvenile court erred in setting the maximum term of

confinement at six years 10 months because the consecutive terms on the receiving stolen

property and possession of burglary tools offenses should have been stayed pursuant to

Penal Code section 654. He therefore requests that this court reduce the maximum term

of confinement to six years. The People respond that the court did not impose a

consecutive term on the receiving stolen property charge, and that this court should not

order any correction as to the possession of burglary tools offense. We are inclined to

agree with the People.

Penal Code section 654 prohibits multiple punishment for an indivisible course of

conduct even though it violates more than one statute. (People v. James (1977) 19 Cal.3d

99, 119; In re Joseph G. (1995) 32 Cal.App.4th 1735, 1743-1744.) Whether a course of

conduct is indivisible depends on the intent and objective of the actor. (People v. Latimer

(1993) 5 Cal.4th 1203, 1216; Neal v. State of California (1960) 55 Cal.2d 11, 19.) If all

the offenses were incident to one objective, the defendant may be punished for any one of

such offenses but not for more than one. (People v. Perez (1979) 23 Cal.3d 545, 551.)

When a court orders a minor removed from the physical custody of his parent or

guardian, and commits the minor to the Division of Juvenile Facilities, it is required to

specify the maximum term the minor can be held in physical confinement. (Welf. & Inst.

Code, § 731, subd. (c).) The maximum period of confinement for which a ward may be

committed may not exceed the maximum period of imprisonment that could be imposed

4 upon an adult convicted of the same offense. (Welf. & Inst. Code, § 731, subd. (c).)

Thus, when such a commitment is ordered, the principles relating to multiple punishment

under Penal Code section 654 apply to wardships. (In re Michael B. (1980) 28 Cal.3d

548, 556, fn. 3; In re Jesse F. (1982) 137 Cal.App.3d 164, 170.)

Initially, we note the record is clear that the Orange County Juvenile Court did

order the receiving stolen property charge stayed pursuant to Penal Code section 654. As

such, we reject minor’s claim that the court erred in failing to stay his sentence on the

receiving stolen property offense.

As to minor’s claim that the possession of burglary tools should have been stayed,

we find the issue is premature. The Penal Code section 654 issue is relevant only to the

issue of whether the juvenile court’s order calculating minor’s maximum theoretical

period of confinement must be corrected. However, minor was ordered on probation in

the home of his mother and was not ordered into an out-of-home commitment. Because

minor was not removed from his mother’s physical custody, there is no need to decide the

Penal Code section 654 issue or to correct the juvenile court’s order calculating minor’s

maximum theoretical period of confinement. (In re Danny H. (2002) 104 Cal.App.4th

92, 106 [only when a court orders a minor removed from the physical custody of his

parent or guardian is the court required to specify the maximum term the minor can be

held in physical confinement]; In re Joseph G., supra, 32 Cal.App.4th at pp. 1743-1744

[same].)

Thus, it is not necessary to reduce minor’s maximum term of confinement or

remand the case for a new disposition.

5 III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ P. J.

We concur:

McKINSTER J.

RICHLI J.