In re D.M. CA1/4

Filed 11/26/14 In re D.M. CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

In re D.M., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent, A140905 v. (Sonoma County D.M., Super. Ct. No. 37574-J) Defendant and Appellant.

D.M. appeals from a dispositional order committing him to an out-of-home placement following the juvenile court’s findings on three Welfare and Institution Code,1 section 602 petitions and several probation violation petitions (Welf. & Inst. Code, § 777). He contends that the juvenile court abused its discretion in finding that an out-of- state placement was in his best interests. He also argues that the misdemeanor grand theft finding must be reversed because amended Penal Code section 487 requires that the stolen property be worth more than $950 and the petition erroneously stated the threshold value of the stolen property was $400. The Attorney General concedes the error. We vacate the grand theft finding and conclude that the court’s findings on the out-of-state placement issue must be reversed. 1 Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.

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I. FACTUAL BACKGROUND In January 2013, the district attorney’s office filed three section 602 petitions alleging respectively that defendant committed misdemeanor battery on his stepfather (Pen. Code, § 242); possessed marijuana on school grounds (Health & Saf. Code, § 11357, subd. (e)); and committed misdemeanor grand theft (Pen. Code, § 487, subd. (a)). Defendant admitted the misdemeanor battery and grand theft allegations. The misdemeanor grand theft charge was based on defendant’s theft of a cell phone, laptop, and camera from an acquaintance. The court dismissed the marijuana possession allegation. On March 13, 2013, the court committed defendant to the juvenile hall for a period of 18 to 25 days followed by community detention for 30 to 35 days. Defendant’s performance on community detention was unsatisfactory. On April 23, 2013, the probation department filed a section 777 petition alleging that defendant violated a court order by failing to appear for chemical testing and not attending counseling. Defendant admitted that he failed to attend a counseling program; the court continued defendant on community detention, but committed him to an additional 35 to 40 days in juvenile hall. The court dismissed the chemical testing allegation. On May 13, 2013, the probation department filed a second section 777 petition alleging that defendant missed a chemical testing appointment and failed to comply with community detention rules. On June 5, 2013, the court ordered that defendant undergo a psychological evaluation. On June 6, 2013, the probation department filed a section 778 petition to modify the court’s previous orders to request that defendant be screened for the Assertive Community Treatment (ACT) program. On June 12, 2013, the court found defendant suitable for the ACT program. On October 3, 2013, another section 777 petition and a section 602 petition were filed alleging that defendant was arrested for receiving stolen property, a cell phone. Defendant admitted that he committed the offense of receiving stolen property. The court ordered that defendant be detained in juvenile hall. The court was concerned that defendant’s mother did not have a permanent and stable residence and noted that it might