In re Destiny G. CA5

Filed 4/30/15 In re Destiny G. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

In re DESTINY G., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, F069847

Plaintiff and Respondent, (Super. Ct. No. 13CEJ600144-1V)

v. OPINION DESTINY G.,

Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Kimberly J. Nystrom-Geist, Judge. Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Cornell, Acting P.J., Poochigian, J. and Franson, J.

The sole issue on this appeal is whether appellant Destiny G. was awarded the correct amount of precommitment custody credit.1 We conclude she was given one day too many and modify the judgment accordingly. FACTS AND PROCEDURAL HISTORY While at a party sometime prior to February 20, 2013, Destiny stabbed another girl in the chest and abdomen three times with a knife during an argument. As a result, a wardship petition was filed pursuant to section 602, and, on April 24, 2013, Destiny admitted an allegation she committed assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)). On July 8, 2013, Destiny was declared a ward of the court, the offense was declared to be a felony with a maximum confinement time of four years, and Destiny was given credit against that term for 143 days already spent in confinement. A commitment to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ) was stayed; Destiny was committed to the Juvenile Justice Campus (JJC) for 180 days, and placed on probation on condition,

1 Penal Code section 1237.1, which prohibits a criminal defendant from raising an error in the calculation of presentence custody credits as the sole issue on appeal unless he or she first presents such claim in the trial court, does not apply to juvenile proceedings. (In re Antwon R. (2001) 87 Cal.App.4th 348, 350-352.) Welfare and Institutions Code section 800, subdivision (b)(5) gives the People the right to appeal the imposition of an unlawful disposition order in juvenile proceedings. In criminal proceedings, failure to award the legally mandated amount of presentence custody credits constitutes an unauthorized sentence that can be corrected whenever discovered (People v. Gisbert (2012) 205 Cal.App.4th 277, 280; see People v. Scott (1994) 9 Cal.4th 331, 354), and so may be raised by the People on a defendant’s appeal (see, e.g., People v. Fitzgerald (1997) 59 Cal.App.4th 932, 934; People v. Walkkein (1993) 14 Cal.App.4th 1401, 1411). By analogy, the People may respond to Destiny’s claim of calculation error with their own such claim, and Destiny does not contend otherwise. Further statutory references are to the Welfare and Institutions Code unless otherwise stated.