In re K.L. CA2/6 ( 2022 )

Filed 8/17/22 In re K.L. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
In re K.L., a Person Coming 2d Juv. No. B319543
Under the Juvenile Court (Super. Ct. No. FJ57180)
Law. (Los Angeles County)
THE PEOPLE,
Plaintiff and Respondent,
v.
K.L.,
Defendant and Appellant.
K.L. appeals from the April 7, 2022 order of the
juvenile court terminating his placement home on probation and
ordering him placed at camp for a maximum confinement period
of 3 years 10 months. He contends the juvenile court erred
because it had already dismissed the Welfare & Institutions
Code, section 6021 petition then pending against him and there
was no pending probation violation petition. (§777.) K.L. further
contends the maximum confinement period set by the juvenile
court violates section 730, subdivision (a)(2) because it exceeds a
three-year commitment. Respondent correctly concedes both
errors. Because there was no pending section 777 petition and
the juvenile court dismissed the pending section 602 petition,
there was no basis for the April 7, 2022 camp placement order.
The order also sets an excessive maximum confinement period.
Accordingly, we reverse the order dated April 7, 2022.
FACTS
In three separate petitions under section 602, K.L.
was alleged to have committed a series of robberies between April
and August 2020. He admitted to one felony second degree
burglary (Pen. Code, §§459, 460, subd. (b)), one attempted second
degree robbery (Pen. Code, §§ 664, 211) and one misdemeanor
grand theft. (Pen. Code, § 487, subd. (c).) After the first section
602 petition was filed, the juvenile court ordered K.L. placed at
home on probation. When the second petition was filed in
October 2020, the juvenile court ordered K.L. detained in juvenile
hall. He remained at juvenile hall or in a short term residential
treatment program (STRTP) for the next 13 months. In August
2021, K.L.’s probation officer filed a section 777 petition alleging
that K.L. violated the conditions of his probation by using
fentanyl, fighting, and engaging in other misconduct while placed
at a STRTP. K.L. admitted the allegations. The trial court
ordered K.L. placed at a different STRTP. On November 8, 2021,
1All further statutory references are to the Welfare &
Institutions Code, unless otherwise stated.
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the juvenile court terminated its prior placement order and
ordered K.L. released to his mother on probation.
On December 16, 2021, a fourth section 602 petition
was filed alleging that K.L. committed six second degree
robberies. The section 602 petition was not accompanied by a
petition under section 777, alleging that K.L. violated the terms
of his probation in the prior three petitions. The court ordered
K.L. detained at juvenile hall.
The December 16, 2021 petition went to trial in April
2022. At no time prior to trial did K.L.’s probation officer or the
prosecutor file a section 777 probation violation petition. After
the prosecution rested its case in chief, the juvenile court found,
“I don’t believe the People have met their burden.” The juvenile
court based this finding on its determination that the victims’
identifications of appellant as one of the robbers were
problematic. It granted K.L.’s motion to dismiss all six counts
alleged in the petition. However, the court then found by clear
and convincing evidence that K.L. was “involved” in the robberies
and announced its intention to “send him to camp.” At a hearing
two days later, the juvenile court rejected K.L.’s contention that
no section 777 petition was pending. It entered the order placing
K.L. at camp for five to seven months with a maximum term of
confinement of 3 years 10 months.
DISCUSSION
Camp Placement Order
“An 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.” (§777.) In this case, the only
section 777 petition filed against K.L. was filed in August 2021
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and it related to his misconduct while placed at a STRTP. K.L.
admitted the allegations and continued in his placement at
another STRTP. On November 8, 2021, after receiving reports
that K.L.’s behavior had dramatically improved, the juvenile
court terminated its placement order and ordered K.L. returned
to the custody of his mother on probation.
No probation violation petition was pending when the
fourth section 602 petition was filed against K.L. in December
2021. After reviewing the prosecution’s evidence, the juvenile
court dismissed all six counts alleged in that petition. At that
point, there was no section 777 petition pending. The court had
no basis for ordering K.L. placed at camp. Its placement order
must be reversed.
Respondent asks us to reverse the placement order
“without prejudice to the People filing a section 777 notice based
on the December 14, 2021 robberies.” It is not necessary for us to
do so. If the People file a section 777 petition relating to K.L.’s
conduct on December 14, the juvenile court will need to
determine whether the petition complies with section 777 by
alleging “a violation of a condition of probation not amounting to
a crime.” (§ 777, subd. (a)(2).)
Maximum Confinement Period
In connection with the first three petitions filed
against him, K.L. admitted that he committed one second degree
burglary, one attempted second degree robbery and one
misdemeanor grand theft. On November 8, 2021, the juvenile
court placed K.L. at home on probation for each of these offenses.
Its April 7, 2022 order terminated the probation granted on
November 8, 2021, ordered K.L. placed at camp and set his
maximum confinement period at 3 years 10 months. The parties
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correctly agree this was error. Should further proceedings be
required, the maximum confinement period for the offenses
previously adjudicated against K.L. is three years.
Section 730, subdivision (a)(2) provides, “[a] court
shall not commit a juvenile to any juvenile facility for a period
that exceeds the middle term of imprisonment that could be
imposed upon an adult convicted of the same offense.” (Ibid.)
The middle term for both second degree burglary and attempted
second degree robbery is two years. (Pen. Code, §§ 213, subd. (b),
461, subd. (b), 1170, subd. (h)(1).) The term for misdemeanor
grand theft is one year. (Pen. Code, § 489, subd. (c)(1).)
Subordinate terms for felonies or misdemeanors consist of one-
third of the middle term. (§726, subd. (d)(3); Pen. Code, § 1170.2,
subd. (a).) Thus, the maximum confinement period for the
offenses previously adjudicated against K.L. is three years,
calculated as follows: two years (the mid-term for either felony),
plus eight months (one-third the mid-term for the other felony),
plus four months (one-third the term for misdemeanor grand
theft).
DISPOSITION
The order dated April 7, 2022 is reversed.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J. PERREN, J.*
*Retired Associate Justice of the Court of Appeal, Second Appellate District,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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Robert J. Totten, Commissioner
Superior Court County of Los Angeles
______________________________
Mary Bernstein, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, Gary A. Lieberman, Deputy Attorney
General, for Plaintiff and Respondent.