In re Devin H. CA1/2

Filed 12/20/13 In re Devin H. CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

In re DEVIN H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. DEVIN H., A137854 Defendant and Appellant. (Contra Costa County Super. Ct. No. J1201281)

Appellant minor Devin H. was originally declared a ward of the court under Welfare and Institutions Code section 602 at age 13 in Napa County on January 21, 2009, for threatening a teacher and using obscenity at school. (Pen. Code, §§ 71, 415.5, subd. (a).) He has had numerous sustained petitions for delinquent behavior amounting to a probation violation since then. (§ 777.)1 A second section 602 petition was sustained in Contra Costa County on September 7, 2012, based on Devin’s plea of no contest to receiving stolen property (Pen. Code, § 496, subd. (a)) and resisting arrest (Pen. Code, § 148, subd. (a)). After several more probation violations, on January 23, 2013, he was sent to the Youthful Offender Treatment Program (YOTP), a locked facility in Contra Costa County Juvenile Hall. The sole issue on appeal is whether the maximum term of

1 Undesignated statutory references are to the Welfare and Institutions Code.

1

confinement was properly calculated at 53 months, or whether instead it should have been set at 49 months. We conclude there was an error in the calculation and modify the dispositional order accordingly. BACKGROUND Devin H. has been involved in the juvenile justice system since shortly before his 14th birthday. His first section 602 petition in Napa County stemmed from threatening a fellow student and making offensive sexual suggestions, shouting profanities at the principal, breaking school rules by riding his skateboard in the school bus area, and threatening to hit a female teacher. He was declared a ward and released to the custody of his mother, but he thereafter demonstrated persistent problems adjusting to school rules, eventually being suspended from a middle school and two high schools. He used profanities toward a teacher and violated the dress code within days after being placed on probation. In May 2009, he made threatening remarks with gang overtones to other students and was suspended from middle school. In February 2010 he was suspended from high school three times for possession of marijuana, harassing another student, and defiance of school rules, including using profanity and racial slurs in class. He violated probation again on August 19, 2011, by being involved in a campus disruption, with a resulting suspension. On June 24, 2012, at age 17, Devin was detained in San Francisco for skateboarding on a crowded street during the Gay Pride Parade. He shouted profanities at the officer who detained him and refused to identify himself or his parents. On August 30, 2012, Devin was arrested in Hercules with two other minors near a residence that had just been burglarized. Devin had the victim’s credit card in his pocket but claimed he had found it on the ground. A section 602 petition was filed in Contra Costa County on September 4, 2012, alleging first degree residential burglary, a felony (Pen. Code, §§ 459, 460), receiving stolen property as a felony (Pen. Code, § 496, subd. (a)), resisting arrest during the June 24 incident (Pen. Code, § 148, subd. (a)(1)), and giving false information to a peace officer in June (Pen. Code, § 148.9, subd. (a)).