People v. M.B.

Opinion

WISEMAN, Acting P. J. We hold that Welfare and Institutions Code section 7331 allows a juvenile court to commit a ward to the Division of Juvenile Facilities2 for a violation of probation found pursuant to an allegation under section 777, subdivision (a)(2), where the offense for which the ward received the probation is a DJF-eligible offense under section 733 and [1475]no petition alleging a more recent non-DJF-eligible offense has been sustained. The judgment is affirmed.

FACTUAL AND PROCEDURAL HISTORIES

On March 6, 2006, M.B. admitted to one misdemeanor count of vandalism (Pen. Code, § 594, subd. (b)(1)) alleged in a section 602 juvenile wardship petition. The juvenile court sustained that count and dismissed two others. It found the maximum time of confinement to be one year and ordered probation.

On September 29, 2006, M.B. responded to another section 602 petition and admitted to one count of assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), one count of participating in a criminal street gang (Pen. Code, § 186.22, subd. (a)), and an allegation pursuant to section 777, subdivision (a)(2), that he violated the terms of his probation by means not amounting to a crime. The juvenile court sustained those counts and dismissed several others. It found a maximum confinement time of five years and ordered continued probation, to be served in part at the Larry J. Rhoades Kem Crossroads Facility.

On February 20, 2008, answering a third petition, M.B. admitted to a probation violation not amounting to a crime within the meaning of section 777, subdivision (a)(2). The court sustained the allegation and dismissed another charge. The court again found the maximum confinement time to be five years, but this time committed him to DJF.

DISCUSSION

Section 733 bars a juvenile court from committing a ward to DJF if: “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, unless the offense is a sex offense set forth in subdivision (c) of Section 290.008 of the Penal Code. This subdivision shall be effective on and after September 1, 2007.” (§ 733, subd. (c).)