Opinion
NOT TO BE PUBLISHED.
APPEAL from a judgment of the Superior Court of Los Angeles County No. PJ43587, Morton Rochman, Judge.
Sarvenaz Bahar, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, Acting P. J.
Minor E.L. appeals from a judgment adjudicating him a ward of the court under Welfare and Institutions Code section 602. In his initial brief on appeal, minor’s counsel stated he found no arguable issues and asked the court to conduct its independent review under People v. Wende (1979) 25 Cal.3d 436 (Wende). Thereafter, counsel filed a supplemental brief raising a single issue dealing with predisposition credits. In response to the supplemental brief, the People filed their respondent’s brief addressing only the credit issue. Minor in turn filed a supplemental brief. We have conducted our Wende review and have found no arguable issues on appeal except for the predisposition credit point addressed in the supplemental briefing. We modify the predisposition credit so that the minor’s credit is six days rather than two and, as modified, affirm the judgment
FACTUAL AND PROCEDURAL BACKGROUND
This appeal arises out of two separate petitions filed in the juvenile court. The hearing on both petitions took place on September 21, 2009. We describe separately the underlying incidents.
A. The October 28, 2008 petition
On October 28, 2008, a petition was filed alleging that minor had committed the crime of battery on school property under Penal Code section 243.2. Witness C.S. testified that on August 7, 2008, she was a high school student returning to the gym at the end of her physical education class when minor and three other boys grabbed her. They lifted C.S. by her arms and legs and carried her into the boys’ locker room. Minor grabbed one of her legs. Before anything else occurred, one of the boys alerted the others to the presence of a teacher, and the boys “just dropped” C.S. and ran away. C.S. knew the minor’s last name and identified him in court as one of the four boys who had grabbed and carried her. C.S.’s testimony was corroborated by a teacher present at the scene.
B. The April 21, 2009 petition
On April 21, 2009, a petition was filed alleging that minor had committed a residential burglary under Penal Code section 459. Witness K.C. testified that on April 16, 2009, she had returned home to find that her front door lock had been broken, the apartment had been ransacked, and a number of items were missing. Most, if not all, of the missing property belonged to her son who lived with her. Shortly thereafter, she received information that minor, who lived nearby, might have been responsible for the theft. She approached minor at his residence, accused him of the break-in, and asked for the return of the property. After first denying his involvement and then being advised that law enforcement was on its way, minor admitted his participation and returned some of the missing items. Other property, he said, had been sold. A neighbor friend of K.C.’s also testified and corroborated the essential parts of K.C.’s testimony.
C. Disposition
Following the hearing, the court sustained both petitions. The burglary was deemed a felony, and minor was placed in a suitable facility with various probation terms. The court set the maximum period of confinement at six years, four months. He received predisposition credit of two days.
DISCUSSION
A. Wende Review
As we have observed, appointed counsel filed an opening brief which did not raise any arguable issues and requested that we independently review the record pursuant to Wende. On April 1, 2010, we advised minor that his counsel had advised us she had found no arguable issues and that minor had 30 days within which personally to submit any contentions or argument he wished us to consider. Minor did not file a brief. Except as discussed in the ensuing section, we have examined the entire record and are satisfied that appointed counsel has fully complied with her responsibilities and that no other arguable issues exist. (Wende, supra, 25 Cal.3d at p. 441.)Substantial evidence supported the juvenile court’s decision to sustain each petition. (In re Roderick P. (1972) 7 Cal.3d 801, 809; In re Brandon G. (2008) 160 Cal.App.4th 1076, 1079-1080.)
B. Minor is Entitled to Four Additional Days of Predisposition Credit.
We authorized counsel to file a supplemental brief on April 29, 2010, in which she raised a single issue on the amount of predisposition credits to which minor was entitled. According to counsel, minor was taken into custody on April 17, 2009, and released to his mother on April 22, 2009, thus entitling him to six days of credit. The court, however, gave him only two days credit.
In their respondent’s brief, the People agree that minor received two days credit. The People do not formally take a position on whether minor is entitled to four additional days’ credit; instead, they argue that this court ought not to consider the issue. Rather, this court should remand the case to the trial court for a determination of any additional predetermination credits.
In a declaration filed with the court as part of the request to file a supplemental brief, minor’s counsel stated that she had spoken to the clerk of the juvenile court, who had reported that the court believed it had no jurisdiction to entertain a motion to correct credits because of the pendency of the appeal. The Attorney General seems to accept that the clerk made the statement. We have no reason to disbelieve the representation but point out there is nothing in either the clerk’s or reporter’s transcript that reflects any conversation, nor did the parties file a settled statement. Our decision does not consider this information, which is not part of the record.
The People’s position is founded primarily on Penal Code section 1237.1 (section 1237.1) which precludes a criminal defendant from raising an error in the calculation of presentence custody credits if the defendant has not previously raised the error with the trial court. Minor counters that, by its express terms, section 1237.1 applies only to adult criminal matters.
Section 1237.1 provides: “No appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court.”
The only published case that has addressed whether section 1237.1 applies to juvenile matters is In re Antwon R. (2001) 87 Cal.App.4th 348 (Antwon). There, the Court of Appeal held that section 1237.1 was not applicable to wardship proceedings as juveniles are neither “defendants” nor are they “convicted, ” the terms used in the statute. Antwon relied heavily on the Supreme Court’s decision in In re Joseph B. (1983) 34 Cal.3d 952 (Joseph B.) which held that 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.)
The application of adult criminal statutes to juvenile wardship proceedings is not a simple task. (See generally, In re Damien V. (2008) 163 Cal.App.4th 16, 20-26 [application of gang penalties to juveniles].)
The People argue persuasively that much appellate time and cost could be avoided if parties were to first address the credit issue with the trial court. (See generally, People v. Scott (1994) 9 Cal.4th 331, 348-356; People v. Acosta (1996) 48 Cal.App.4th 411, 428.) We agree, especially since the record on appeal concerning credits often may be incomplete. In Antwon itself, the appellate court suggested that it would have calculated the credit itself if it had been provided with “enough information, ” but since the record was incomplete the court remanded the matter to the trial court. (Antwon, supra, 87 Cal.App.4th at p. 353.)
The somewhat unsatisfactory answer to the People’s point is that the statute, as interpreted by Antwon and by analogy to Joseph B., simply does not apply to juvenile wardship proceedings. The People and minor both agree that no published case has disagreed with Antwon. Antwon is nearly 10 years old. Section 1237.1 was enacted in 1995 (stats 1995, c. 18 (Assem. Bill No. 354, § 2), and has remained unchanged. Given that the Legislature could have amended section 1237.1 after Antwon to include juvenile wardship dispositions or could have added a comparable provision to the Welfare and Institutions Code, we see no reason to disturb Antwon’s holding.
Finally, the People suggest that if we are going to entertain the predisposition credit issue, the record is not altogether clear that minor is entitled to four additional days’ credit. We disagree. The juvenile court petition filed by the People on April 21, 2009, states that the “minor was taken into custody by LAPD - Foothill Area, # 091609921, on 04/17/2009, at 07:15 pm. Minor is Detained. The present whereabouts of minor is Sylmar Juvenile Hall.” The petition itself strongly supports that minor was in custody on April 17, 2009. The clerk’s transcript reflects the minor’s release to mother on April 22, 2009, the date of his first appearance since his detention. Probation records also corroborate these dates. 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 paragraph 29 of the court’s order of September 21, 2009, to reflect that minor is entitled to six days of predisposition credits. In all other respects, the judgment is affirmed.
WE CONCUR: GRIMES, J. O’CONNELL, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.