IN RE: ANTHONY J. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Minor Anthony J. (minor) appeals from the disposition order of the juvenile court, contending that the court failed to award the correct predisposition custody credits.   The Attorney General concedes that minor is correct.   We agree with the parties, and order the minute order corrected.

PROCEDURAL BACKGROUND

On May 5, 2010, minor admitted count 1 of a two-count petition.   Although our record does not contain a copy of that petition, the probation report indicates that count 1 alleged minor committed an attempted robbery.  (Pen.Code, §§ 664, 211.)   The juvenile court placed minor home on probation and awarded him 23 days of predisposition custody credits.

On October 5, 2010, the district attorney's office filed a second petition, alleging minor committed an assault by means likely to produce great bodily injury.  (Pen.Code, § 245, subd. (a)(1).)   On October 26, after hearing testimony, the juvenile court sustained the petition.¹  During argument regarding the proper disposition, the deputy district attorney reminded the court that minor was on probation when he committed the assault and recommended that he be sent to camp.

The court stated the following:  “The court is going to deem this a 245, subsection (A), paragraph (1).   According to the witness, there were two kicks to the head.   And he went to the hospital for treatment.   The court will go ahead and deem this matter a felony in this matter.   So that makes the maximum confinement time now to be four years combined in the petition.”   The court ordered minor suitably placed and awarded 26 days of predisposition custody credits.

DISCUSSION

Seizing on the court's statement that maximum confinement time was “now to be four years combined in the petition,” minor contends the court intended to aggregate the maximum term of confinement with the earlier petition.   The Attorney General notes that the court did not expressly state it was aggregating the two petitions, however, he admits minor's interpretation is reasonable.   We agree.   There would have been no reason for the court to use the words “combined in the petition” if it did not intend to aggregate the two cases when determining the maximum term of confinement.   That being the case, we agree with the parties that the court was then required to award minor predisposition custody credits for time served on both petitions.  (In re Eric J. (1979) 25 Cal.3d 522, 536.)   In addition to the 26 days of custody credits awarded on October 5, minor is entitled to the 23 days of custody credits awarded on May 5 with respect to the first petition.

DISPOSITION

The superior court clerk is directed to correct the minute order to reflect that minor is awarded 49 days of predisposition custody credits.   In all other respects, the disposition order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Given the nature of the appeal, a summary of the evidence is not necessary..  FN1. Given the nature of the appeal, a summary of the evidence is not necessary.

EPSTEIN, P.J. WILLHITE, J.