In Re Phillip A.

California Court of Appeal Sep 2, 1980 No. Crim. 38249Published

Before: Hastings

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Holding. The court held that while a juvenile may be incarcerated for violating a probation condition prohibiting the possession of marijuana, the court failed to provide adequate notice by not labeling the petition as a supplemental petition under Welfare and Institutions Code section 777.

Issues

Whether time in custody may be imposed for a marijuana possession violation when obedience to all laws is a condition of probation.
Whether a recommitment on an original wardship petition is valid absent the filing of a supplemental petition under Welfare and Institutions Code section 777.

Disposition. remanded

Quotations verified verbatim against the opinion

“when obedience of all laws has been imposed as a condition of probation for a Welfare and Institutions Code section 602 ward, time in custody may be imposed for a violation of that condition by possession of less than an ounce of marijuana.”

“due process requires that we err on the side of caution where it is reasonably arguable that adequate notice was not given in a juvenile court proceeding.”

[1006]

Opinion

HASTINGS, J.

Petitioner was declared a ward of the court (Welf. & Inst. Code, § 602) on October 20, 1978, after he admitted alleged acts of battery. On November 6, 1978, he was ordered placed in a camp community program. On April 17, 1979, having completed the camp program petitioner was returned to court. It was ordered that he remain a ward of the court, subject to various terms and conditions of probation, including of course that he obey all laws. He was released to his mother’s custody.

On April 25, 1980, a Welfare and Institutions Code section 602 petition was filed alleging violations of Education Code section 44812 (insulting and abusing a teacher), Penal Code sections 71 (threatening a school official) and 415.5 (disturbing the peace of a school), and Health and Safety Code section 11357, subdivision (b) (possession of less than an ounce of marijuana). This petition was not denominated a supplemental petition, but it was filed under the same case number as the previous petition.

At a hearing held May 22, 1980, the marijuana charge was found to be true. The remaining charges were dismissed and the matter was continued for a disposition hearing. A probation report, prepared for that hearing, recommended that petitioner be placed home on probation on various conditions, one of which being that he spend 30 days in juvenile hall. (See

In re Ricardo M.

(1975) 52 Cal.App.3d 744 [125 Cal.Rptr. 291].)

The court declined to follow the recommendation, indicating that it intended to order camp commitment for petitioner. Upon argument being made that time in custody could not be imposed for the marijuana offense because an adult convicted of a similar offense could not be incarcerated,

the court directed that petitioner be committed to the camp community program on the original (1978) wardship petition.

The within petition for writ of habeas corpus challenges the validity of that order. Petitioner argues first that it was improper to impose time in custody for the Health and Safety Code section 11357, subdivision (b) violation regardless of whether the commitment was made pursuant

In Re Phillip A.

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HASTINGS, J.

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