In re J.D. CA6

Filed 4/18/14 In re J.D. CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

In re J.D., a Person Coming H039960 Under the Juvenile Court Law. (Monterey County Super. Ct. No. J47224)

THE PEOPLE,

Plaintiff and Respondent,

v.

J.D.,

Defendant and Appellant.

On appeal, minor J.D. challenges the juvenile court's order committing him to the California Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF) on the most recently sustained juvenile wardship petition. That petition alleged that, on or about April 28, 2013, minor had committed attempted murder (Pen. Code, §§ 187, 664). (See Welf. & Inst. Code, §§ 602, subd. (a), 725, subd. (b), 800.)1 Minor fully admitted that allegation and the additional allegations that he had committed the offense for the benefit of, at the direction of, and in association with a criminal street

1 All further statutory references are to the Welfare and Institutions Code unless otherwise specified. 1

gang (Pen. Code, § 186.22, subd. (b)(1)(C)) and, in the commission of the offense, he or another principal intentionally and personally discharged a firearm (Pen. Code, § 123022.53, subds. (c) & (e)(1)). Attempted murder is a section 707, subdivision (b), offense. (See § 707, subd. (b)(12).) Minor had previously admitted a prior petition's allegations that, on or about May 15, 2013, he committed four specified offenses, none of which were section 707, subdivision (b), offenses. Thus, the attempted murder was not minor's most recent offense. Section 733 provides in pertinent part: "A ward of the juvenile court who meets any condition described below shall not be committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities: . . . [¶] (c) The ward has been or is adjudged a ward of the court pursuant to Section 602, and the most recent offense alleged in any petition and admitted or found to be true by the court is not described in subdivision (b) of Section 707 or subdivision (c) of Section 290.008 of the Penal Code" (hereinafter section 733(c)). Minor now contends that (1) "the most recently committed offense rather than the most recent petition filed determines whether a ward may be committed to" the DJF and (2) the juvenile court abused its discretion by ordering him committed to the DJF. In light of the Supreme Court's recent decision in In re D.B. (April 3, 2014, S207165) ___ Cal.4th ___ [2014 Cal. LEXIS 2468] (D.B.), we conclude that minor was ineligible for commitment to the DJF and reverse. I Procedural History Previous Petition A juvenile wardship petition, filed May 17, 2013, alleged that, on or about May 15, 2013, minor committed four crimes: (1) first degree residential burglary (Pen. Code, § 459), (2) misdemeanor vehicle tampering (Veh. Code, § 10852),