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Filed 9/12/14 In re Elijah S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 Elijah S., a Person Coming Under the 

Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

ELIJAH S.,

Defendant and Appellant.

 A140145

 (Contra Costa County

 Super. Ct. No. J13-00815)

On July 29, 2013, the Contra Costa District Attorney (District Attorney) filed a 

delinquency petition pursuant to section 602 of the Welfare and Institutions Code

(Section 602), alleging that Elijah S., a minor, had committed misdemeanor petty theft 

(Pen. Code, §§ 484, 488) (Count 1) and engaged in misdemeanor public intoxication

(Pen. Code, § 647, subd. (f)) (Count 2).

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The charges stemmed from a May 14, 2013, 

incident in which the minor was detained by the police after attempting to steal two 

bottles of wine from a Safeway store in Pittsburg. At the time of his arrest, Elijah 

exhibited signs of intoxication, and preliminary screening indicated a blood alcohol 

concentration (BAC) of .122 percent. The minor was cited and released to the custody of 

his mother. On August 28, 2013, Elijah pled no contest to Count 1, and the petition was 

 

1 All statutory references are to the Penal Code unless otherwise specified.
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sustained as to that count. Thereafter, Count 2 was dismissed, and the minor was placed 

on home supervision pending disposition. 

While this first matter was still ongoing, the police received a report on August 6, 

2013, that two individuals were looking into car windows and checking the door handles 

of vehicles parked at the minor’s apartment complex in Concord. Later, upon 

questioning by the police, Elijah admitted that he had stolen several items from a parked 

car at the facility, including a wallet, credit cards, jewelry, and electronic devices. The 

minor reported planning to sell the stolen goods in order to buy “ ‘weed’ ” and alcohol. 

On September 25, 2013, the District Attorney filed a subsequent Section 602 petition 

alleging that the minor had engaged in two felonies in connection with this second 

incident: receiving stolen property (§ 496, subd. (a)) and grand theft from a person 

(§ 487, subd. (c)). 

On October 3, 2013, the District Attorney corrected the grand theft count in the 

subsequent petition to allege grand theft in an amount over $950 rather than grand theft 

from a person. (§ 487, subd. (a).) On October 8, 2013, the petition was further amended 

to include three misdemeanor charges: second degree burglary (§§ 459, 460, subd. (b));

theft in an amount over $950 (§ 487, subd. (a)); and receiving stolen property (§ 496, 

subd. (a)). On that same date, Elijah pled no contest to the three misdemeanor counts and 

the court dismissed the two felonies. Thereafter, on October 22, 2013, a dispositional 

hearing was held with respect to all four sustained misdemeanors at which Elijah was 

declared a juvenile court ward, removed from the custody of his mother, and ordered into 

out-of-home care.

Elijah’s sole contention on appeal is that the juvenile court erred by failing to 

calculate his maximum time of confinement (MTC) and his credits for time served on the 

record. He asks that the proceedings be remanded so that his MTC and secure custody 

credits can be determined by the juvenile court. The Attorney General concedes the error 

but asks that—rather than remanding the matter for further hearing—we simply order the 

juvenile court to prepare an amended dispositional order which specifies the correct MTC 

and notes the proper award of secure custody credits. We concur that the juvenile court 
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erroneously failed to specify the minor’s MTC and secure custody credits, and adopt a 

combination of both remedies suggested by the parties.

I. DISCUSSION

A. Maximum Time of Confinement (MTC)

When the juvenile court removes a minor from parental custody as the result of an 

order of wardship, Welfare and Institutions Code section 726 (Section 726) mandates that 

the court “must specify the maximum confinement term, i.e., the maximum term of 

imprisonment an adult would receive for the same offense.” (In re David H. (2003) 106 

Cal.App.4th 1131, 1133 (David H.); see also Welf. & Inst. Code, § 726, subd. (d); Cal. 

Rules of Court, rule 5.795(b) [if a minor is declared a ward and removed from parental 

custody “the court must specify and note in the minutes the maximum period of 

confinement under section 726”].)2 Section 726 permits the juvenile court, when 

calculating a minor’s MTC, to aggregate terms, both on the basis of multiple counts, and 

on previously sustained Section 602 petitions. (In re Adrian R. (2000) 85 Cal.App.4th

448, 454.) In particular, “[w]hen aggregating multiple counts and previously sustained 

 

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Specifically, Welfare and Institutions Code section 726, subdivision (d), provides in 

relevant part: “If the minor is removed from the physical custody of his or her parent or 

guardian as the result of an order of wardship made pursuant to Section 602, the order 

shall specify that the minor may not be held in physical confinement for a period in 

excess of the maximum term of imprisonment which could be imposed upon an adult 

convicted of the offense or offenses which brought or continued the minor under the 

jurisdiction of the juvenile court. [¶] As used in this section and in [Welfare and 

Institutions Code] Section 731, ‘maximum term of imprisonment’ means the longest of 

the three time periods set forth in paragraph (2) of subdivision (a) of Section 1170 of the 

Penal Code, but without the need to follow the provisions of subdivision (b) of Section 

1170 of the Penal Code or to consider time for good behavior or participation pursuant to 

Sections 2930, 2931, and 2932 of the Penal Code, plus enhancements which must be 

proven if pled. [¶] If the court elects to aggregate the period of physical confinement on 

multiple counts or multiple petitions, including previously sustained petitions adjudging 

the minor a ward within Section 602, the ‘maximum term of imprisonment’ shall be the 

aggregate term of imprisonment specified in subdivision (a) of Section 1170.1 of the 

Penal Code, which includes any additional term imposed pursuant to Section 667, 667.5, 

667.6, or 12022.1 of the Penal Code, and Section 11370.2 of the Health and Safety 

Code.”
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petitions, the maximum confinement term is calculated by adding the upper term for the 

principal offense, plus one-third of the middle term for each of the remaining subordinate 

felonies or misdemeanors.” (David H., supra, 106 Cal.App.4th at pp. 1133-1134; see 

also Welf. & Inst. Code, § 726; § 1170.1, subd. (a).)

In the present case, the parties agree that—although the juvenile court removed 

Elijah from his mother’s custody and ordered him into out-of-home care during the 

October 22, 2013, dispositional hearing—it did not specify the minor’s MTC in either its 

oral pronouncement or its written order as required by both statute and court rule. The 

Attorney General would have us calculate the MTC in this case at the appellate level and 

impose it on the juvenile court. If the calculation was simply a matter of mathematics, 

we would agree. However, the decision whether and how to aggregate multiple counts 

across various Section 602 petitions is discretionary with the juvenile court. (Welf. & 

Inst. Code, § 726, subd. (d) [stating “[i]f the court elects to aggregate the period of 

physical confinement on multiple counts or multiple petitions . . . ,” italics added]; see 

also In re Jesse F. (1982) 137 Cal.App.3d 164, 168 (Jesse F.) [Section 726 “gives the 

court discretion to run the terms consecutively or concurrently”].) Under these 

circumstances, we will not substitute our discretion for that of the trial court.

To aid the juvenile court on remand, though, we do provide the following 

guidance. First—as the Attorney General correctly admits—the juvenile court in this 

matter should not have sustained both the theft count and the receipt of stolen property 

count in the subsequent petition. (§ 496, subd. (a) [stating that “no person may be 

convicted both pursuant to this section [involving receipt of stolen property] and of the 

theft of the same property”]; People v. Ceja (2010) 49 Cal.4th 1, 4-5 (Ceja).) Here, the 

record clearly reflects that Elijah was charged with “receiving” the same property which 

he stole from the parked car. Under such circumstances, the adjudication for receiving 

stolen property should be set aside. (Ceja, supra, 49 Cal.4th at pp. 9-10.)

Second, section 654, which is applicable to delinquency proceedings, “forbids 

multiple punishment for separate indivisible crimes arising out of a single act which were 

the means and were incidental to the accomplishment of a single objective.” (People v. 
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Moore (1965) 234 Cal.App.2d 29, 32 (Moore); In re Jesse F., supra, 137 Cal.App.3d at 

pp. 170-171.) In the context of this case, section 654 is implicated because Elijah’s 

reason for the burglary of the car was clearly to commit the theft of the property inside it. 

(See Moore, supra, 234 Cal.App.2d at p. 32; compare People v. Wynn (2010) 184 

Cal.App.4th 1210, 1214-1216 [sentences for burglary and assault appropriate where trial 

court found separate objective for the two crimes].) Under such circumstances, the 

punishment for one of the charged offenses should have been stayed. (Compare Jesse F., 

supra, 137 Cal.App.3d at pp. 170-172.) Thus, on remand, when calculating Elijah’s 

MTC for the charges included in the subsequent petition, the juvenile court should stay 

the punishment for either the burglary or the theft count pursuant to section 654. 

(Compare Jesse F., supra, 137 Cal.App.3d at pp. 170-172.)

B. Secure Custody Credits 

Although Elijah was initially placed on home supervision during the pendency of 

these proceedings, the juvenile court ordered the minor detained on September 25, 2013, 

after he tested positive for marijuana prior to the court hearing on that date. Thus, as of 

the dispositional hearing on October 22, 2013, Elijah had been detained for 28 days. 

Because the period of physical confinement under the Juvenile Court Law may not 

exceed the maximum term of imprisonment for an adult convicted of the same offenses, 

predispositional custodial credits “must be given to the extent the minor’s total period of 

confinement would otherwise exceed the statutorily defined ‘maximum term of 

imprisonment’ for one convicted as an adult.” (In re Deborah C. (1981) 30 Cal.3d 125, 

140.)

Although the parties agree that Elijah is entitled to 28 days of predispositional 

custody credits, the minor asserts—based on In re J.M. (2009) 170 Cal.App.4th 1253 

(J.M.)—that he is additionally entitled to custody credits for the time he spent in juvenile 

hall after the dispositional hearing, but prior to placement. We agree with Elijah that 

J.M. stands for the proposition that he is entitled to credit for this interim custodial 

period—that is, the time between the dispositional hearing date and the date of his 

delivery into placement. (See id. at p. 1256.) However, we also adopt the Attorney 
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General’s position that, under the facts of this case, such interim credits need not be 

included as part of the dispositional judgment currently at issue on appeal. 

As a general matter, a judgment should reflect the situation in existence at the time 

it was entered, rather than events occurring after that date. (In re James V. (1979) 90 

Cal.App.3d 300, 304 [“an appeal reviews the correctness of a judgment as of the time of 

its rendition, upon a record of matters which were before the trial court for its 

consideration”].) Here, the dispositional order specified out-of-home care, but did not 

include a commitment order to any secure facility. Indeed, based on the record below, it 

appears likely that the minor was going to be placed in a group home or other nonsecure 

placement, which would not count as “physical confinement” for purposes of accruing 

additional custody credits. (In re Randy J. (1994) 22 Cal.App.4th 1497, 1503-1506.) 

Under such circumstances, any post-dispositional, interim credits would more 

appropriately be accounted for in connection with a subsequent commitment order to a 

secure facility or if the minor was otherwise remanded to custody, triggering the need for 

an updated calculation of custody credits earned.

II. DISPOSITION

The case is remanded to allow the juvenile court to calculate Elijah’s MTC in 

accordance with the views expressed in this opinion and to prepare an amended 

dispositional order specifying that MTC. The amended order should also reflect the 

minor’s entitlement to predisposition secure custody credits of 28 days. In all other 

respects, the judgment is affirmed.
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_________________________

REARDON, J.

We concur:

_________________________

RUVOLO, P.J.

_________________________

RIVERA, J.