1 Filed 4/3/14 In re F.K. CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento)

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In re F.K., a Person Coming Under the Juvenile Court Law. C073827

THE PEOPLE, Plaintiff and Respondent,

v. F.K., Defendant and Appellant. (Super. Ct. No. JV134443)

The San Francisco County Juvenile Cour t found F.K. (the minor) was described by Welfare and Institutions Code section 602 1 in that he committed second degree robbery (Pen. Code, §§ 211/212 .5, subd. (c)), assault by mean s likely to produce great

1 Further undesignated statutory references are to the Welfare and Institutions Code.2 bodily injury (Pen. Co de § 245, subd. (a)(4)), and provided false identification to a police officer, a misdemeanor (Pen. Code § 148. 9, subd. (a)). The San Francisco court transferred the case to San Mateo County fo r disposition, where the minor was already a ward of the juvenile court. The case was transferred to Sacramento County for disposition after the minor’s father moved to Sacramento. The juvenile c ourt adjudged the minor a ward of the court, set the maximum term of confinem ent at seven years 10 months, 2 ordered the minor to serve 93 days in juvenile hall with 93 days of credit, and a pproved placement at the Glen Mills facility in Pennsylvania. The minor timely appeals. He contends the juvenile court in San Francisco erred in declining to dismiss the petition pursuant to California Rules of Court, rule 5.774(d). 3 He further contends the juvenile court in Sacramento erred in failing to stay the term for the assault charge pursuant to Penal Code section 654. We agree with the second contention and shall modify the judgment accordingly. FACTUAL AND PROCED URAL BACKGROUND The Crimes On the night of December 19, 2012, Andr ew Wu was walking through a park in San Francisco when he was approached by a group of five people. A member of the group approached and asked to borrow Wu’s cell phone. When Wu refused, the person grabbed him by the jacket while two others punched and kicked him, taking his cell phone, keys, wallet, and jacket. Wu reported the attack to the police, who arrived within a few minutes. The police tracked the stolen phone to a bus eight blocks from the park. The minor and his

2 This maximum term enco mpassed charges from other pe nding petitions not relevant here.

3 Further undesignated rule references are to the California Rules of Court.3 two codefendants were in the back of the bus ; Wu’s phone was fou nd close to where the three were sitting. One of the three was we aring Wu’s jacket. The minor gave a false name when the police asked for identification. Wu identified the thr ee as his assailants. Relevant Proceedings The section 602 petition was filed on Dece mber 21, 2012. The court ordered the minor detained pending pretrial at his in itial appearance on Decemb er 24, 2012. On January 3, 2013, the minor a ppeared for the pretrial conference and the court set a contested jurisdiction hearing fo r January 15, 2013--a date with in 15 judicial days of the court’s initial detention order, as the minor did not waive time. On January 14, 2013, the People moved to continue the jurisdiction hearing because the complaini ng witness was unavailable to test ify until January 19, 2013. The juvenile court continued the jurisdiction hear ing to January 22, 20 13, finding good cause to do so, but denied the minor’s request for release. At the beginning of the hearing held on January 22, 2013, the minor moved for release and dism issal of the petition pursuant to rule 5.774(d). The court released the minor, but denied his motion to dismiss.
I
Motion to Dismiss The minor contends the juvenile court e rred in denying his motion to dismiss the petition. Because the court did not hold the jurisdic tional hearing within 15 judicial days of the court’s December 24, 2012, order di recting the minor’s detention, the minor concludes the court was required to dism iss the petition pursuan t to rule 5.774(d). The minor further asserts the court e rred in continuing the hearing because absence of a witness is not a valid ground to continue the he aring under rule 5.776(b) or (c). Thus due to the lack of “proper grounds for a continuance,” the minor argues, rule 5.774(d) mandated dismissal due to his cont inued detention beyo nd 15 judicial days.4 A. The Law Rule 5.774 governs the setting of jurisdic tion hearings. If a minor is not detained, the rule requires the jurisdiction hearing “must begin within 30 calendar days from the date the petition is filed.” (Rule 5.774(a).) If a minor is detained, the jurisdiction hearing “must begin within 15 judicial days from the date of the order of the court directing detention. If the child is rele ased from detention before the jurisdiction hearing, the court may reset the jurisdiction hear ing within the time limit in (a).” (Rule 5.774(b).) The remedy for failing to abide by these rules is clear. “Absent a continuance under rule 5.776, when a jurisdiction hearing is not begun within the time limits of (a) and (b), the court must order the petition dismissed. Th is does not bar the f iling of another petition based on the same allegations as in the or iginal petition, but the child must not be detained.” (Rule 5.774(d).) Continuances are governed by rule 5.7 76. The juvenile court may grant a continuance “only on a showing of good cause and only for the time shown to be necessary.” (Rule 5.776(a).) Written notice for the continuance must be filed and served on the parties at least two court days before the scheduled hearing, and, absent a waiver of time, a minor may not be detained “b eyond the statutory time limits.” (Rule 5.776(a)(1).) If the juvenile court grants the continuance, the supporting facts must be stated in the order. (Rule 5.776(a)(2).) Coun sel’s failure to object to the continuance implies consent. (Rule 5.776(a)(3).) The court must grant a continuance of no more than seven days for the appointment of counsel, to enable counsel to be acquainte d with the case, or to determine whether the minor’s parent, adult relative, or guardian can afford counsel. (Rule 5.776(b).) The court may grant a continuance of no more than seven days “to enable the petitioner to subpoena witnesses if the child has made an extrajudicial admission and denies it, or has previously indicated to th e court or petitioner an intention to admit the5 allegations of the petition, and at the tim e set for jurisdiction hearing denies the allegations.” (Rule 5.776(c).)
B. Analysis Initially, we note that the minor appears to argue that his continued detention from January 15 until January 22 manda ted dismissal of the petition regardless of the propriety of the “good cause” finding for the continuanc e granted on January 14. We address this undeveloped argument only to note that th e minor presents no authority supporting the notion that dismissal is the remedy for detention be yond 15 judicial days when a continuance is secured for good cause. Nor do we see any authority supporting the notion that dismissal is mandatory, or even warranted, under this circumstance.
In In re Kerry K. (2006) 139 Cal.App. 4th 1, cited by the minor in purported support of his argument, we found error in the juvenile court’s failure to release the minor from custody despite continuing the jurisd iction hearing for go od cause beyond the statutory limits on detention. ( Id. at p. 4.) We did not opine on the remedy for this prolonged detention, much less hold that the remedy was dismissal. Although we declined to dismiss th e case as moot despite the minor’s release subsequent to his filing of the writ petition, we concluded only that the minor was entitled to release , not that the continuance itself was improper and no t that dismissal was required. ( Id. at pp. 4-5; see also In re Maurice E. (2005) 132 Cal.App.4th 474, 479 ( Maurice E .) [because the minor “failed to seek immediate writ relief from his extended detention, as he might have done [citation], the propriety of having kept [the minor] at j uvenile hall until October 25 is now moot”].) As we discussed ante , the juvenile court originally set the jurisdiction hearing for the detained minor within 15 judicial days of the December 24, 2012, detention order and then continued the case while s till within that tim eframe, finding what it deemed to be “good cause” to do so. Ru le 5774(d) requires that absent a continuance under rule 5.776, when the court does not begin the jurisdiction hearing with in the requisite timeframe--6 here 15 judicial days as the minor was detained--the court must order the petition dismissed. Here, because the court did continue the hearing before its 15 judicial days to do so had expired, the only question remaini ng is whether the continuance was for good cause as authorized by rule 5. 776. If so, the juvenile court did not err when it declined to dismiss the petition, because rule 5774(d) was not violated. Rule 5.776(a) allows a continuance “on a showing of good cause. ” This tracks the language of section 682, which states in pertinent part: “A continuance shall be granted only upon a showing of good cause and onl y for that period of time shown to be necessary by the moving party at the hearing on the motion.” (§ 682, subd. (b).) Neither section 682 nor the identical provision in rule 5.776(a) contain any language limiting the definition of “good cause.” We disagree with the minor’s contentio n that good cause fo r continuing a petition is limited to the grounds specified in rule 5.774(b) and (c), which we have set forth ante

. Section 700, which establishe s procedures for the beginning of a hearing on wardship proceedings and appointin g counsel for the minor, requires in pertinent part: “The court shall continue the hearing fo r not to exceed seven days, as necessary to make an appointment of counsel, or to enable counsel to acquaint himself or herself with the case, or to determine whether the parent or guard ian or adult relative is unable to afford counsel at his or her own expense, and shall continue the hearing as necessary to provide reasonable opportunity for the minor and the parent or guardian or adult relative to prepare for the hearing.” This is the statutory source for rule 5.774(b). Section 701 is the statutory source for rule 5.774(c), governing the standard of proof and the admissibility of evidence at a wardship hear ing; it provides in pertinent part: “When it appears that the minor has ma de an extrajudicial admission or confession and denies the same at the hearing, the cour t may continue the hearing for not to exceed seven days to enable the prosecuting attorney to subpoena witnesses to attend the hearing to prove the allegations of the petition.”7 While sections 700 and 701 identify particular instances of good cause, each speaking to a specific set of circumstance s concerning the subject matter of that particular statutory provision, they do not, either on their own or as applied through rule 5.774(b) and (c), limit the broader definition of good cause. Clearly, a juvenile court may continue a jurisdiction hearing pursuant to section 682 and ru le 5.776(a) for good cause-- the definition of which is not limited by the specific statutory pr ovisions and their individual illustrations of good cause described by 5.774( b) and (c). (See Maurice E,

supra, 132 Cal.App.4th at p. 481 [applying nearly identic al predecessor to rule 5.776, former rule 1486, and reaching the same conclusion].) The language and statutory sources of rule 5.774(a), (b), and (c) make cl ear that the grounds for continuing a hearing under (b) and (c) are not the sole sources of good cause for a continuance under rule 5.774(a). Neither the text nor the context of those provisions purports to limit the definition of “good cause.” (See Maurice E. , supra , at pp. 479-480.) Good cause for a continuan ce to obtain a witness’s test imony requires the moving party to show the exercise of due diligence to secure the witness’s attendance, that the expected testimony is material and not cumula tive, that the witness’s attendance can be obtained within a reasonable time, and that th e facts to which the witness would testify could not otherwise be proven. (See People v. Howard (1992) 1 Cal.4th 1132, 1171.) Here, the juvenile court continued the heari ng to secure the appearance of the victim, whose testimony was material, not cumulativ e, and constituted facts that could not otherwise be proven. The People contacted the victim two court days after the first hearing date was set to determine his ava ilability for January 15 and 16, 2013. The following day, the People learned that the vi ctim was out of the country and would not return until January 18, 2 013, and could not testify until the following day. Because the People established good cause for the continuance, the juvenile court was within its discretion to continue the hearing. (See Maurice E. , supra , 1328 Cal.App.4th at p. 481 [applying abuse of discretion standard] .) Accordingly, the juvenile court did not err when it declined to di smiss the petition pursuan t to rule 5.774(d).
II Penal Code section 654 The minor contends the juvenile court erre d when it failed to st ay the term for the assault charge when calculating the maximum sentence at the disposition hearing. The People concede error, and we agree with the parties. A. The Law Penal Code section 654 pr ecludes imposition of multiple punishments for conduct that violates more than one criminal statute but that constitutes an indivisible course of conduct. ( People v. Perez (1979) 23 Cal.3d 545, 551-552 .) “Whether [Penal Code] section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations .] Its findings will not be reversed on appeal if there is any substantia l evidence to support them. [Citations.] We review the trial court’s determ ination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]” ( People v. Jones (2002) 103 Cal.Ap p.4th 1139, 1143.) “[W]here multiple criminal acts are co mmitted, a defendant can be separately punished only for those that are independent violations committed in pursuit of different criminal objectives. [Citation.] . . . [¶] . . . [¶ ] [W]hen a defendant is responsible for both an assault and robbery, he can be punished fo r both crimes if the assault was not incident to the robbery and was motivated by a separa te criminal objective [citation], but if the assault was committed in order to accomplish the robbery, then th e defendant can be punished for only one of the crimes. [Citations.]” ( People v. Martinez (1984) 150 Cal.App.3d 579, 606, disa pproved on other grounds in People v. Hayes (1990) 52 Cal.3d 577, 628, fn. 10.)9 B. Analysis Here, there is no evidence the minor had an y prior relationship with the victim or any reason to assault him other than to ro b him. The minor in itiated the encounter by asking the victim for his cell phone. When he declined, the minor and the others beat the victim until they were able to take his cell phone and other property by force--that is, they beat him so that they could rob him. Because the assault charged in the December 21, 2012, petition was committed solely to effectuate the charged robbery, th e term for assault by me ans likely to produce great bodily injury should be stayed pursuan t to Penal Code section 654. The assault charge was a subordinate term with a middle te rm of three years (Pen. Code, § 245, subd. (a)(4)); thus it constituted one year of the minor’s seven-year 10-month maximum term. We will modify his maximum te rm to six years 10 months. DISPOSITION The disposition order is modified to stay imposition of the term for the Penal Code section 245, subdivision (a)(4) assault ch arged in the December 21, 2012, petition pursuant to Penal Code section 654, for a ma ximum term of confinement of six years 10 months. As modified, the judgment is affirmed . The juvenile court is directed to amend its disposition order accordi ngly and to provide the amended order to the relevant authorities.

DUARTE , J.

We concur:

RAYE , P. J.

MURRAY , J.