# In re Ernesto L.

> California Court of Appeal · July 27, 2022

URL: https://www.frixlaw.com/law-library/cases/7361388

## Case

- **Court:** California Court of Appeal
- **Decided:** July 27, 2022
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Filed 7/27/22 (unmodified opn. attached)
CERTIFIED FOR PARTIAL PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

In re ERNESTO L., a Person
Coming Under the Juvenile Court
Law.

THE PEOPLE,
A162151
Plaintiff and Respondent,
v. (Alameda County
Super. Ct. No. JV-024273-08)
ERNESTO L.,
Defendant and Appellant.
ORDER MODIFYING OPINION
AND DENYING REHEARING

[NO CHANGE IN JUDGMENT]

BY THE COURT:
It is ordered that the written opinion filed on July 12, 2022, is modified
so that footnote 10 reads as follows:

On February 17, 2022, nearly a year after this appeal was taken,
Ernesto's appellate counsel filed a motion to expedite the appeal and the
related habeas proceeding. We granted the motion, even though counsel had
filed four omission letters, each requiring a record augmentation; requested

1
and obtained two extensions of time to file the opening brief; and filed an
opening brief of over 100 pages. Although some of the delays were caused by
circumstances outside counsel’s control, some were not.

This modification does not change the judgment. (Cal. Rules of Court,
rule 8.264(c)(2).) The petition for rehearing is denied.

Dated:

_________________________
Humes, P.J.

In re Ernesto L. A162151

2
Filed 7/12/22 (unmodified opinion)
CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

In re ERNESTO L., a Person
Coming Under the Juvenile Court
Law.

THE PEOPLE,
Plaintiff and Respondent,
v. A162151
ERNESTO L.,
(Alameda County
Defendant and Appellant. Super. Ct. No. JV-024273-08)

Ernesto L. appeals from a juvenile court dispositional order committing
him to the Division of Juvenile Justice (DJJ) after he admitted to committing
assault with a firearm. He raises numerous claims, but the principal one
involves his entitlement to precommitment credits. Generally, if a minor is
removed from a parent’s physical custody after being adjudged a ward of the
court, the dispositional order must “specify that the minor may not be held in
physical confinement for a period in excess of the middle term of
imprisonment” that could be imposed on an adult convicted of the same

Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
*

opinion is certified for publication with the exception of parts II.C. and II.D.

1
offense. (Welf. & Inst. Code, § 726, subd. (d)(1).)1 But if a minor is committed
to DJJ in particular, the juvenile court has discretion, “based upon the facts
and circumstances,” to set an even lower maximum term of physical
confinement. (§ 731, subd. (b).) The question presented here is whether the
court may elect to apply precommitment credits against the theoretical
maximum term under section 726—which we will refer to as the “maximum
exposure term”—and not the actual maximum term set under section 731—
which we will refer to as the “maximum custodial term.”
Relying on In re A.R. (2018) 24 Cal.App.5th 1076 (A.R.), the only
published appellate case on the subject at the time, the juvenile court applied
Ernesto’s precommitment credits, which totaled over two years, against the
maximum exposure term of 14 years, 8 months, not the maximum custodial
term of three years. In the published portion of this opinion, we disagree
with A.R. and hold that when a minor is committed to DJJ, a juvenile court
must apply the minor’s precommitment credits against the maximum
custodial term.2 Because the record establishes the juvenile court would have
set a higher maximum custodial term had it realized Ernesto’s credits would
apply against that term, we remand for the court to re-set a maximum
custodial term and apply the credits against it. 3

All further statutory references are to the Welfare and Institutions
1

Code unless otherwise noted.
2We publish our holding because of our disagreement with A.R.,
although we recognize that most juveniles can no longer be committed to
DJJ, which is set to close on June 30, 2023. (§ 736.5, subds. (b)–(c), (e).)
3In light of this disposition, we need not reach Ernesto’s claims that
the juvenile court lacked the power to modify its original dispositional order.
We would reject those claims in any event because, among other reasons, the
juvenile court modified the dispositional order before it entered the DJJ
commitment order. (See, e.g., § 775 [any order of juvenile court pertaining to
“any person subject to its jurisdiction may at any time be changed, modified,

2
In the unpublished portion of this opinion, we disagree with Ernesto
that the juvenile court erred by committing him to DJJ under section 602.3
and by relying on prior misdemeanors when calculating the maximum
exposure term. We also accept the Attorney General’s concessions that the
maximum exposure term must be reduced and that Ernesto’s number of
precommitment credits must be updated, and we modify the judgment
accordingly. Otherwise, we affirm the judgment as modified. 4
I.
FACTUAL AND PROCEDURAL
BACKGROUND
The issues on appeal do not require a detailed discussion of the
underlying facts. After several gang-related shootings in and around Union
City, officers from various jurisdictions formed a plan to arrest suspects they
believed were using a stolen car. 5 The night of June 18, 2018, officers located
the car and followed it in unmarked cars as it traveled throughout the area.
The car began circling a Union City neighborhood associated with the
suspects’ rival gang, and the officers decided to execute a “Vehicle
Containment Technique,” in which one police vehicle “stops in front of the
suspect vehicle and reverses into the suspect vehicle’s front bumper” while a
second police vehicle “simultaneously closes in on the suspect vehicle from

or set aside”]; cf. People v. Karaman (1992) 4 Cal.4th 335, 344–345 [trial court
lacks jurisdiction to modify prison sentence once judgment is executed, which
occurs when commitment document is delivered to custodial officer].)
4By separate order, we deny Ernesto’s petition for writ of mandate or
habeas corpus, which raises many of the same claims presented in this
appeal. (In re Ernesto L., A164425.)
The facts in this paragraph are drawn from the probation
5

department’s dispositional report.

3
behind until the bumpers are locked and the suspect vehicle is securely
contained between both officer vehicles.”
Two Fremont police officers initiated the technique when the suspects’
car was stopped at a stop sign. Occupants of the suspects’ car immediately
started shooting at the officers, neither of whom was hit. Ernesto, who had
not been identified as a suspect in the gang-related shootings, and two other
minors, who had been, were ultimately apprehended after exiting the car and
attempting to escape.
Later that month, the Alameda County District Attorney’s Office filed a
wardship petition alleging that the juvenile court had jurisdiction over
Ernesto, who was then 16 years old, under section 602, subdivision (a). Two
years later, after several amendments, the operative petition was filed. It
alleged that Ernesto committed the same four felonies against both officers,
for a total of eight counts: attempted murder of a peace officer, attempted
murder, assault with a firearm, and shooting at an occupied motor vehicle. 6
Numerous gang and firearm enhancements were also alleged. 7 Finally, the
petition gave notice of 2015 and 2017 findings that Ernesto committed a

6 These counts were alleged under Penal Code sections 187,
subdivision (a), and 664, subdivision (e) (attempted murder of peace officer),
187, subdivision (a), and 664, subdivision (a) (attempted murder), 245,
subdivision (a)(2) (assault with firearm), and 246 (shooting at occupied
vehicle).
7 Gang enhancements were alleged under Penal Code section 186.22,
subdivision (b)(1) (as to the counts of attempted murder and assault with a
firearm), (b)(4) (as to the counts of shooting at an occupied vehicle), and (b)(5)
(as to the counts of attempted murder of a peace officer). Firearm
enhancements were alleged under Penal Code sections 12022.5,
subdivision (a) (personal use of a firearm, as to the counts of assault with a
firearm), and 12022.53, subdivision (c) (personal and intentional discharge of
a firearm, as to all four counts of attempted murder).

4
misdemeanor, and it sought a hearing on whether he should be transferred to
criminal court.8
In October 2020, Ernesto admitted one count of assault with a firearm
and the accompanying allegations that he personally used a firearm and
committed the crime for the benefit of a gang. In accepting the plea, the
juvenile court advised Ernesto that he faced a maximum penalty of 14 years,
8 months in a locked facility. The court then dismissed the remaining counts
and enhancements, and the prosecution withdrew its motion to transfer
Ernesto to criminal court.
A contested dispositional hearing was held over several days in late
2020, with the prosecution seeking commitment to DJJ and Ernesto seeking
placement in a county facility, Camp Sweeney, and then in his aunt’s care
out-of-state to avoid gang influences. Ernesto had performed very well in
juvenile hall, but evidence was introduced that he did not qualify for
placement at Camp Sweeney because he was already 19 years old and was
not planning to transition back to the local community.
On January 12, 2021, the juvenile court ordered Ernesto committed to
DJJ and “fixe[d] the maximum period of confinement at three years.” After
noting it had “discretion to set a higher or lower confinement time,” the court
explained it “[chose] this as the maximum period of confinement based upon
all the facts and circumstances and offenses of the minor, including the
severity of the offense, the minor’s previous performance on probation,
relatively high probability of recidivism in the next year, and the minor’s

8 The 2015 finding was under Vehicle Code section 10851,
subdivision (a) (joyriding), and the 2017 finding was under Penal Code
section 626.10, subdivision (a) (possession of weapon on school grounds).
Ernesto was on probation when he committed the instant offense.

5
performance while detained at juvenile hall for the current offense.” The
court then stated, “Credit for time served is 969 days.”
The following day, the prosecutor informed the juvenile court and
Ernesto’s trial counsel by email that she had learned “DJJ rejects youth who
have less than [one] year to serve.” The prosecutor indicated that if Ernesto’s
969 days of credits were applied against the three-year maximum custodial
term the court had set, he would have only 126 days left to serve. The
prosecutor also provided a brief she had filed in Ernesto’s co-participant’s
case in which she suggested that the court lacked authority to order a
“commitment that would essentially be only a ‘paper commitment.’ ”
At a hearing on January 14, the juvenile court noted the prosecutor had
“brought some new information” to light about the DJJ commitment and set
the matter for January 21, giving Ernesto’s counsel a week to respond. The
court directed “the clerk not to prepare the commitment order until that
hearing.”
Before the January 21 hearing, the prosecutor emailed the juvenile
court and Ernesto’s counsel to inform them that under A.R., supra,
24 Cal.App.5th 1076, “the [j]uvenile court may apply a youth’s credit ONLY
to their maximum exposure time pursuant to . . . [section] 726 and not to the
DJJ maximum term of confinement set by the court pursuant to . . .
[section] 731.” The prosecutor asked the court to “supplement the record for
. . . [Ernesto’s] disposition to clarify how [it] intended the credits to be
applied” and argued that the court should apply the precommitment credits
only to the maximum exposure term, not to the maximum custodial term.
At the January 21 hearing, the juvenile court stated its understanding
that DJJ “need[ed] clarification as to whether . . . [the precommitment credits
applied] against the maximum time or . . . against the three years.” The

6
court then indicated its “intention was . . . that [Ernesto] would do three
years” in DJJ, not serve only 90 to 120 days there, as such a short time would
not “allow [him] to materially benefit from [DJJ] services.” After hearing
argument from the parties, the court concluded that its January 12
dispositional order was “ambiguous as to where the credits should be applied”
and that it had the authority to clarify the order. The court then “appl[ied]
the [credits] towards the maximum term of confinement of 14 years and 8
months as previously stated.”9
On January 25, 2021, the superior court filed Ernesto’s commitment to
DJJ, which specified that his “maximum period of imprisonment” (i.e., his
maximum exposure term) was 14 years, 8 months, his “maximum period of
confinement” (i.e., his maximum custodial term) under section 731 was three
years, and he had 969 days of precommitment credits. Those credits were
updated to 1,005 days on February 9. DJJ accepted Ernesto on February 25,
and he filed a notice of appeal on March 2. He was transported from juvenile
hall to DJJ on June 8.10
II.
DISCUSSION
A. The Law Governing Physical Confinement of Wards
We begin with an overview of sections 726 and 731, which together
govern the physical confinement of minors committed to DJJ. Section 726

9 Although the juvenile court had not specified the maximum exposure
term at the January 12 dispositional hearing, it advised Ernesto of that term
before taking his plea.
10 On February 17, 2022, nearly a year after this appeal was taken,
Ernesto’s appellate counsel filed a motion to expedite the appeal and the
related habeas proceeding. We granted the motion, even though counsel had
already substantially delayed the case by filing four omission letters, each of
which required a record augmentation; obtaining two extensions of time to
file the opening brief; and filing an opening brief of over 100 pages.

7
governs the confinement of any minor who “is removed from the physical
custody of the minor’s parent or guardian as the result of an order of
wardship made pursuant to Section 602,” and section 731 further governs the
confinement of any such minor who is committed to DJJ. (§§ 726,
subd. (d)(1), 731, subd. (b).) Both statutes limit how long in total a minor
may be physically confined. (Ibid.)
As this division has explained, “prior to 1976 the confinement of both
adult and juvenile felons was subject to an indeterminate system ‘which gave
courts or administrative agencies broad discretion to set each individual term
of confinement on the basis of various factors, including the circumstances of
the offense and the offender’s progress toward rehabilitation.’ ” (In re A.G.
(2011) 193 Cal.App.4th 791, 799 (A.G.).) In 1976, the Legislature enacted the
determinate sentencing law for adults, under which “for any particular felony
the [sentencing] court must select among one of three sentence terms.”
(Ibid.) Although “the Legislature left unchanged the indeterminate system
for juvenile offenders,” it amended sections 726 and 731 to address People v.
Olivas (1976) 17 Cal.3d 236, which held “that equal protection prohibits the
confinement of a minor for a period of time longer than the sentence that
would be imposed on an adult for an equivalent crime.” (A.G., at p. 800.)
Both statutes now “provide[d] for the first time that any juvenile court order
for an offender’s physical confinement . . . must expressly be limited in
duration to the ‘maximum term of imprisonment’ . . . for an adult convicted of
the same offense or offenses.” (In re Jovan B. (1993) 6 Cal.4th 801, 818,
italics omitted.) This “maximum term of imprisonment” referred to “the
longest of the triad of determinate sentences plus any proven enhancements.”
(A.G., at p. 800.)

8
Two further statutory amendments are relevant here. First, in 2003,
section 731 was amended to preserve “[t]he provision prohibiting the
confinement of a minor for longer than the maximum term of imprisonment
. . . , but the following sentence was added immediately following: ‘A minor
committed to . . . [DJJ] also may not be held in physical confinement for a
period of time in excess of the maximum term of physical confinement set by
the court based upon the facts and circumstances of the matter or matters
which brought or continued the minor under the jurisdiction of the juvenile
court, which may not exceed the maximum period of adult confinement as
determined pursuant to this section.’ ” (A.G., supra, 193 Cal.App.4th at
pp. 800–801.) This language conferred on juvenile courts the “ ‘discretion to
impose less than the adult maximum term of imprisonment when committing
a minor to [DJJ].’ ”11 (In re Christian G. (2007) 153 Cal.App.4th 708, 714.)
Second, both sections 726 and 731 were recently amended to provide that a
minor may not be held in physical confinement for longer than the middle
term of imprisonment under the determinate sentencing law. (Stats. 2021,
ch. 18, §§ 7–8; Stats. 2020, ch. 337, § 28.)
Thus, section 726 currently provides that if a minor is removed from a
parent’s physical custody, “the order shall specify that the minor may not be
held in physical confinement for a period in excess of the middle 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

11 This maximum custodial term “ ‘is not a determinate term, it is the
ceiling on the amount of time that a minor may be confined in [DJJ] . . . . The
[Board of Juvenile Hearings] retains the power . . . to determine the actual
length of confinement at or below the ceiling set by the juvenile court’ ”
subject to various “ ‘rules and regulations,’ ” including age limitations on
confinement in DJJ. (A.G., supra, 193 Cal.App.4th at p. 801; see § 1771.)

9
juvenile court.” (§ 726, subd. (d)(1).) This period includes the midterm for a
given offense plus enhancements, and in calculating it the juvenile court may
“aggregate the period of physical confinement on multiple counts or multiple
petitions, including previously sustained petitions adjudging the minor a
ward within Section 602.”12 (§ 726, subd. (d)(2)–(3).) “Physical confinement”
includes “placement in a juvenile hall . . . or in any institution operated by
[DJJ].” (§ 726, subd. (d)(5).)
Section 731 currently provides that a minor committed to DJJ “shall
not be confined in excess of the term of confinement set by the committing
court. The court shall set a maximum term based upon the facts and
circumstances of the matter or matters that brought or continued the ward
under the jurisdiction of the court and as deemed appropriate to achieve
rehabilitation. The court shall not commit a ward to [DJJ] for a period that
exceeds the middle term of imprisonment that could be imposed upon an
adult convicted of the same offense.” (§ 731, subd. (b).)
B. A Minor’s Precommitment Credits Must Be Applied Against the
Maximum Custodial Term Under Section 731.
With this background in mind, we turn to Ernesto’s claim that the
juvenile court was required to apply his precommitment credits against the

12 The provisions of section 726 addressing what time may be added to
an offense’s midterm in calculating the maximum period a juvenile may be
physically confined are part of the statute’s definition of “maximum term of
imprisonment.” (§ 726, subd. (d)(1)–(2).) Although the definition purportedly
applies to that phrase “[a]s used in [section 726] and in Section 731” (§ 726,
subd. (d)(2)), that phrase no longer appears in section 726, subdivision (d)(1),
or section 731 as a result of the recent amendments to refer to the “middle
term of imprisonment” instead. Neither party raises the issue, so for
purposes of this opinion we will assume this was a drafting error and that
section 726’s definition of “maximum term of imprisonment” actually defines
the term “middle term of imprisonment” in both statutes.

10
maximum custodial term, not the maximum exposure term. This claim
presents a question of statutory interpretation we review de novo, “seeking,
as always, to ascertain the Legislature’s intent so as to give effect to the law’s
purpose.” (In re Corrine W. (2009) 45 Cal.4th 522, 529.)
In 1979, our state Supreme Court held that “[i]n order to carry out the
mandate of section 726 . . . that a juvenile ‘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 same offenses,” a
juvenile must receive precommitment credits for the time spent in custody
before the dispositional order is entered. (In re Eric J. (1979) 25 Cal.3d 522,
536 (Eric J.); In re Antwon R. (2001) 87 Cal.App.4th 348, 352.) The Eric J.
minor was committed to the California Youth Authority, DJJ’s predecessor.
(Eric J., at p. 535.) He argued that he was entitled to precommitment credits
under Penal Code section 2900.5 (section 2900.5), which provides for
presentence custody credits in criminal proceedings. (Eric J., at p. 535.) The
Supreme Court found it unnecessary, however, to decide whether that statute
applies directly to juveniles. (Eric J., at pp. 535–536; In re Randy J. (1994)
22 Cal.App.4th 1497, 1503–1504.) Rather, adopting the reasoning of an
earlier Court of Appeal decision, Eric J. concluded that precommitment
confinement had to be credited to comply with section 726’s requirement that
a juvenile “not be held in physical confinement” for longer than the
“maximum term of imprisonment” an adult could receive for the same
offense. (Eric J., at pp. 535–536, citing In re Harm R. (1979) 88 Cal.App.3d
438, 445.) In other words, Eric J. held that section 726’s limit on a minor’s

11
time in physical confinement applies to both precommitment and
postcommitment confinement.13
At the time Eric J. was decided, section 731 echoed section 726 in
providing that a minor committed to what is now DJJ “may not be held in
physical confinement for a period of time in excess of the maximum period of
imprisonment which could be imposed upon an adult” for the same offenses,
but section 731 did not yet convey discretion on a juvenile court to set a
maximum custodial term lower than the maximum exposure term. (Stats.
1978, ch. 380, § 165.) Thus, sections 726 and 731 used to impose the same
limit on physical confinement: an adult’s maximum term of imprisonment for
the same offenses. But in amending section 731 to give courts discretion to
set a lower maximum custodial term, the Legislature added language
providing that “ ‘[a] minor committed to the [DJJ] also may not be held in
physical confinement for a period of time in excess of the maximum term of
physical confinement set by the court’ ” when exercising that discretion. (A.G.,
supra, 193 Cal.App.4th at pp. 800–801, italics added.) In its current form
section 731 provides that “[a] ward committed to [DJJ] shall not be confined
in excess of the term of confinement set by the committing court.” (§ 731,

13 Citing Eric J., Antwon R. explained that “[b]ecause an adult would be
entitled to presentence custody credit under . . . section 2900.5, [section 726]
has been interpreted to mean that an equivalent amount of time must be
subtracted from a minor’s maximum period of physical confinement.” (In re
Antwon R., supra, 87 Cal.App.4th at p. 352.) Relying on Antwon R., Ernesto
suggests that the reason precommitment credits must be applied against the
maximum custodial term is because “[a]n adult’s maximum middle term
would be calculated after application of . . . section 2900.5 presentence
credit.” We disagree that Eric J.’s holding depended on section 2900.5 or that
the “middle term of imprisonment” under section 726 means the middle term
of the sentencing triad after precommitment credits are applied. Rather,
Eric J.’s point was simply that section 726 imposes a ceiling on how long a
juvenile can be physically confined in total, not just after commitment.

12
subd. (b).) Thus, although section 726 still limits a minor’s physical
confinement based on what an adult’s “term of imprisonment” would be,
section 731 further limits a minor’s physical confinement based on the “term
of confinement set by the committing court,” which is “a possibly lower ceiling
set by the relevant ‘facts and circumstances.’ ” (In re Julian R. (2009)
47 Cal.4th 487, 499.)
Applying Eric J.’s logic to the current statutory scheme, we conclude
that when a minor is committed to DJJ, section 731 requires the juvenile
court to apply the minor’s precommitment credits against the actual
maximum custodial term the court imposes, not the theoretical maximum
exposure term. As we have said, Eric J. interpreted former section 726’s
directive that a minor “ ‘not be held in physical confinement’ ” for longer than
a certain period to refer to both precommitment and postcommitment
physical confinement. (Eric J., supra, 25 Cal.3d at p. 536.) Likewise, we
interpret section 731, subdivision (b)’s directive that a minor “not be
confined” for longer than the maximum custodial term set by the court to
refer to both precommitment and postcommitment physical confinement.
Therefore, Ernesto’s precommitment credits for time spent in juvenile hall
should have been credited against the three-year maximum custodial term,
since under section 731 Ernesto could not “be confined in excess of” three
years total.
A.R. is the primary authority on which the People rely in arguing the
juvenile court was not required to apply Ernesto’s precommitment credits
against the three-year maximum custodial term. In A.R., the juvenile court
committed the minor to DJJ with a maximum custodial term of seven years,
less than the 12-year maximum exposure term, but applied the minor’s
precommitment credits to the 12-year term. (A.R., supra, 24 Cal.App.5th at

13
pp. 1079–1080.) The Fourth District Court of Appeal concluded this was
proper, holding that precommitment credits can be applied to the maximum
exposure term instead of to the lower maximum custodial term. (Id. at
pp. 1082–1083.) After explaining that section 726 governed the application of
precommitment credits, the Fourth District concluded that the juvenile
court’s disposition satisfied that statute, since “the [m]inor’s seven-year
maximum term remained lower than the maximum that could have been
imposed upon an adult.” (A.R., at pp. 1083–1084.)
But A.R. assumed that “ ‘[a] juvenile’s entitlement to predisposition
custody credit is determined by [section] 726,’ ” without accounting for
section 731’s effect when the juvenile is committed to DJJ. (A.R., supra,
24 Cal.App.5th at p. 1083, quoting In re Emilio C. (2004) 116 Cal.App.4th
1058, 1067.) To support the quoted proposition, Emilio C. cited Eric J., but
Eric J. does not establish that a minor’s entitlement to precommitment
credits is based exclusively on section 726. As explained above, when Eric J.
was decided, section 731 repeated section 726’s limit on physical confinement
to an adult’s maximum term of imprisonment for the same offense and did
not permit a juvenile court to set a lower maximum custodial term. Thus,
although section 731 also applied to the Eric J. minor, the Supreme Court
had no reason to analyze the statute separately from section 726 because
they said the same thing.
In contrast, when A.R. was decided, section 731 provided not only that
“a ward committed to DJJ cannot be held longer than the ‘maximum period of
imprisonment’ applicable to an adult” but also that “ ‘[a] ward committed to
[DJJ] also may not be held in physical confinement for a period of time in
excess of the maximum term of physical confinement set by the court based
upon the facts and circumstances.’ ” (A.R., supra, 24 Cal.App.5th at p. 1083,

14
italics added, quoting former § 731, subd. (c).) Thus, while A.R. correctly
observed that the juvenile court’s application of precommitment credits
against the 12-year term did not violate section 726 (A.R., at pp. 1083–1084),
in our view the dispositional order in that case was inconsistent with former
section 731 because it allowed the minor to be physically confined at DJJ for
up to seven years without regard to the minor’s precommitment physical
confinement.
To comply with section 731’s mandate that “[a] ward committed to
[DJJ] . . . not be confined in excess of the term of confinement set by the
committing court,” the minor’s precommitment credits must be applied
against the “maximum term [the court sets] based upon the facts and
circumstances” under that statute—i.e., the maximum custodial term.
(§ 731, subd. (b).) Once the juvenile court here set Ernesto’s maximum
custodial term at three years, it was required to apply his precommitment
credits to that term.
Ernesto claims that the proper disposition is to order his immediate
release because “with all of his credits for time served, [he] has served more
than three years in confinement.” The Attorney General concedes that by the
time Ernesto was transferred to DJJ, he had accrued 1,125 days of
precommitment credits for the time spent in juvenile hall. Since three years
is equal to 1,095 days, Ernesto had already spent more than three years in
physical confinement before he ever got to DJJ.
The record, however, leaves no doubt that the juvenile court intended
for Ernesto to spend a significant period of time at DJJ to permit him to
benefit from its services. Once the prosecutor informed the court that DJJ
would not accept Ernesto if he had less than a year to serve, as would be the
case if his precommitment credits were applied against the three-year term,

15
the court purported to apply those credits against the maximum exposure
term. Although this approach was inconsistent with the holding we
announce in this decision, it appears that the court would have set a higher
maximum custodial term under section 731 had it realized that the term had
to include the time Ernesto had spent in juvenile hall. Accordingly, we
conclude it is appropriate to remand the matter for the court to reconsider the
three-year term in light of our holding that Ernesto’s precommitment credits
must be applied against it.
C. The Maximum Exposure Term Is Incorrect, and Ernesto’s
Precommitment Credits Must Be Updated.
Ernesto also claims the maximum exposure term is incorrect and his
precommitment credits must be updated to reflect the full time he spent in
juvenile hall. Although we disagree with him that the juvenile court erred by
including eight months based on his prior misdemeanors, we accept the
Attorney General’s concession that the maximum exposure term must be
reduced to reflect the middle term for assault with a firearm. 14 We also agree
with the parties that Ernesto’s precommitment credits must be updated.
1. Correction of the maximum exposure term
As mentioned above, the juvenile court specified that Ernesto’s
maximum exposure term was 14 years, 8 months. The parties agree that this
term appears to be the sum of the upper term of four years for assault with a
firearm (Pen. Code, § 245, subd. (a)(2)), ten years for the gang enhancement
(id., § 186.22, subd. (b)(1)(C)), and four months each for the two prior

14 Elsewhere in his briefing, Ernesto claims that a juvenile court need
not specify a maximum exposure term if it sets a lower maximum custodial
term under section 731. Assuming, without deciding, that this is correct, we
still address the correct calculation of the maximum exposure term since the
juvenile court must take that term into account on remand when setting the
maximum custodial term.

16
misdemeanors (id., § 626.10, subd. (a); Veh. Code, § 10851, subd. (a); see
Eric J., supra, 25 Cal.3d at pp. 537–538), with the firearm enhancement
stayed because it cannot be imposed in addition to the gang enhancement
(see People v. Rodriguez (2009) 47 Cal.4th 501, 508).
When the dispositional order was entered in January 2021, section 731
had recently been amended to provide that a juvenile “court shall not commit
a ward to [DJJ] for a period that exceeds the middle term of imprisonment
that could be imposed upon an adult convicted of the same offense.” (Former
§ 731, subd. (c); Stats. 2020, ch. 337, § 28.) Section 726, on the other hand,
still provided that a minor removed from parental custody could “not be held
in physical confinement for a period in excess of the maximum term of
imprisonment which could be imposed on an adult convicted of the offense or
offenses which brought or continued the minor under the jurisdiction of the
juvenile court.” (Former § 726, subd. (d)(1), italics added.) As of May 2021,
section 726 was amended so that it also limits physical confinement to “the
middle term of imprisonment” that could be imposed on an adult for the same
offense. (§ 726, subd. (d)(1); Stats. 2021, ch. 18, § 7.)
Ernesto claims, and the Attorney General concedes, that the maximum
exposure term is incorrect because it is based on the upper term of four years
for assault with a firearm instead of the middle term of three years. (See
Pen. Code, § 245, subd. (a)(2).) We agree that the maximum exposure term
must be reduced by a year, whether because the amendment to section 731
was already in effect when the dispositional order was entered or because the
amendment to section 726 was retroactive as an ameliorative change in the
law under In re Estrada (1965) 63 Cal.2d 740.
Ernesto also claims that the juvenile court erred by aggregating his
prior misdemeanor offenses in setting the maximum exposure term. Under

17
section 726, a juvenile court has discretion “to aggregate terms on the basis of
previously sustained section 602 petitions in computing the maximum period
of confinement.” (In re Adrian R. (2000) 85 Cal.App.4th 448, 454; § 726,
subd. (d)(1), (3).) According to Ernesto, because he was not removed from
parental custody when the misdemeanor findings were originally sustained,
“there was no custody time available to be aggregated with the current
offenses.”
The juvenile court’s reliance on the prior misdemeanors in calculating
Ernesto’s maximum exposure time was proper under the plain terms of
section 726. The statute provides that if the minor is removed from a
parent’s “physical custody . . . 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 longer than an adult would be for the same
“offense or offenses which brought or continued the minor under the
jurisdiction of the juvenile court.” (§ 726, subd. (d)(1), italics added.) The
statute also provides that “[i]f 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 exposure term must be calculated under Penal
Code section 1170.1, subdivision (a). (§ 726, subd. (d)(3), italics added.)
Thus, section 726 clearly contemplates that the court may include time for
offenses the minor was previously found to have committed, so long as the
petitions alleging those offenses have not been dismissed. (See In re
Bryant R. (2003) 112 Cal.App.4th 1230, 1237–1238; In re Dana G. (1983)
139 Cal.App.3d 678, 680.) Ernesto is correct that the court did not set a
maximum exposure term when it originally sustained the previous petitions,
as he was not removed from a parent’s custody either time. But nothing in

18
section 726 prevented the court from thereafter—when entering the order
that did remove him from parental custody—including time for the
misdemeanors in the maximum exposure term.
2. Modification of the precommitment credits
When the dispositional order was entered on January 12, 2021, Ernesto
had accrued 969 days of precommitment credits for the time spent in juvenile
hall since his arrest. The juvenile court updated his credits to 1,005 days as
of February 9, but he was not transported to DJJ until June 8. The parties
agree he was entitled to credits for all the days he spent in physical
confinement before being transported to DJJ, for a total of 1,125 days. (See
In re J.M. (2009) 170 Cal.App.4th 1253, 1256 [precommitment credits include
any time served in secure facility before actual placement].) Thus, we modify
the judgment to reflect the accurate number of credits.
D. The Juvenile Court Did Not Err Under Section 602.3.
Finally, Ernesto claims the juvenile court erred by concluding that
section 602.3, which governs the placement of minors who personally use
firearms during violent felonies, required it “to impose further custodial
confinement.” (Boldface and capitalization omitted.) He also claims that
even if further confinement was mandated, the court abused its discretion by
committing him to DJJ instead of juvenile hall. We are not persuaded on
either count.
1. Additional facts
After entering his plea, Ernesto filed a brief requesting placement in
Camp Sweeney and then in his aunt’s care out-of-state, as his mother still
“live[d] in the middle of gang territory” and returning to her home would not
help him stay away from negative influences. The brief noted Ernesto’s many
successes in juvenile hall, including participation in several programs,

19
excellent behavior, and earning of a high school diploma, and explained how
the proposed placement would permit him to continue this positive trajectory.
The brief also argued against commitment to DJJ, focusing on its “ ‘culture of
physical violence and gang conflict’ ” and the danger of contracting COVID-
19.
The probation department’s dispositional report, in contrast, concluded
that DJJ “appear[ed] to be the most appropriate recommendation.” The
report noted that Ernesto “was deemed not suitable for Camp Sweeney”
based on his age and other factors and that he “was deemed ineligible for out-
of-home placement due to his age and the fact that he has already earned a
high school diploma.” It was also reported that Ernesto scored a 19 on the
Youth Level of Service/Case Management Inventory (YLS), “an actuarial
measure of risk for recidivism,” which placed him “in the High Category for
re-offending within the next year.” His “highest-ranking [c]riminogenic risk
factors [were] Offenses/Dispositions, Family/Parenting, and
Leisure/Recreation.” (Emphasis omitted.)
The report continued by observing that “Ernesto ha[d] shown [he was]
amenable to services when in a controlled locked environment,” and “DJJ
offer[ed] a range of rehabilitative services” that would permit him to “achieve
rehabilitation prior to the expiration of the juvenile court’s jurisdiction.” In
addition, Ernesto, who had expressed that his “ultimate goal [was] to become
a firefighter,” would have the opportunity to participate in DJJ’s conservation
camp. The conservation camp could benefit him by not only “teaching him
firefighting” but also providing him with “Gang Awareness programming.”
In line with the probation department’s recommendation, the
prosecution filed a memorandum arguing that Ernesto should be committed
to DJJ. The memorandum explained that he had been deemed unsuitable for

20
Camp Sweeney, and a probation officer had determined that there were “no
other less restrictive placements that would be suitable or effective for [him]
due to his age.” The memorandum also noted a defense psychologist’s opinion
that Ernesto would “ ‘likely benefit from placement in a structured facility
that provides mental health treatment, rehabilitation, academics[,] and
vocational opportunities.’ ” Finally, the memorandum expounded upon the
available opportunities at DJJ, including Counterpoint, the gang intervention
program; a journaling program that would “complement [his] interest[] in
writing”; the conservation camp, which if successfully completed could lead to
a firefighting job; and other vocational and educational programs.
The prosecution’s memorandum also observed that because of his
offense Ernesto had to be placed “in a juvenile hall, ranch, camp, or with
[DJJ]” under section 602.3, subdivision (a). Ernesto then filed a brief arguing
that section 602.3 did not apply to him because he did not commit a
qualifying offense. He also argued that even if the statute did apply, under
In re F.D. (2012) 207 Cal.App.4th 886 (F.D.) the juvenile court had discretion
to commit him to juvenile hall for a further term or deem the statute satisfied
based on his precommitment credits.
The juvenile court concluded that section 602.3 applied to Ernesto
because he “admitted to using a firearm during the commission of a violent
felony as described in [Penal Code section] 667.5[, subdivision (c)],” and the
statute had not been “nullified” by recent juvenile justice reform. The court
also stated the statute required Ernesto to “be placed at juvenile hall, ranch,
camp, or . . . [DJJ].” The court found that “Ernesto will benefit from a
highly[]structured, secured environment,” noting that “despite over two years
of juvenile hall programming, [his] YLS score remains relatively high at a
19.” And the court found that he would benefit “from the programming at

21
[DJJ]” in particular, observing, “Ernesto can further his goals of becoming a
firefighter at DJJ’s Pine Conservation Camp. He will also benefit from such
programs as formalized substance abuse counseling, victim awareness
counseling, mental health counseling, and the Counterpoint program.”
2. Even if the juvenile court misunderstood its discretion
under section 602.3, directing it to reconsider whether to
impose additional physical confinement would be futile.
Section 602.3, subdivision (a), provides, “Notwithstanding any other
law and pursuant to the provisions of this section, the juvenile court shall
commit any minor adjudicated to be a ward of the court for the personal use
of a firearm in the commission of a violent felony, as defined in subdivision (c)
of Section 667.5 of the Penal Code, to placement in a juvenile hall, ranch,
camp, or with [DJJ].” This provision’s “apparent purpose” is “to limit judicial
discretion in firearm use cases prosecuted in juvenile courts.” (People v.
Thomas (2005) 35 Cal.4th 635, 643.) Although Ernesto argued otherwise
below, it is uncontested on appeal that he committed a qualifying offense
under section 602.3. (See Pen. Code, § 667.5, subd. (c)(8) [violent felonies
include “any felony in which the defendant uses a firearm which use has been
charged and proved as provided in . . . [Penal Code] Section 12022.5”].)
Ernesto claims the juvenile court misunderstood the scope of its
discretion because it incorrectly believed that imposing a “time-served or
minimal term[]” would not satisfy section 602.3. He relies on F.D., in which
the Fifth District Court of Appeal interpreted an analogous provision, former
section 707, subdivision (d)(5). (F.D., supra, 207 Cal.App.4th at p. 889.)
Section 707, subdivision (d)(5), which was later repealed by
Proposition 57, provided that if a prosecutor elected to file a section 602
petition instead of criminal charges against a minor and the minor was
adjudged a ward, the minor had to “be committed to placement in a juvenile

22
hall, ranch camp, forestry camp, boot camp, or secure juvenile home pursuant
to Section 730, or in any institution operated by [DJJ].” (Former § 707,
subd. (d)(5); Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of
Prop. 57, § 4.2, p. 145.) In F.D., the juvenile court imposed probation and
ordered the minor to serve 30 days in juvenile hall with credit for 30 days
served. (F.D., supra, 207 Cal.App.4th at pp. 888–889.) F.D. held that
although section 707, subdivision (d)(5), “appear[ed] on its face to require
confinement as part of the disposition” for a minor who could have been
charged in criminal court, it did not have to decide whether “probation alone
[was] an unauthorized disposition.” (F.D., at pp. 889–890.) Instead, F.D.
concluded that a “time-served disposition[]” was sufficient, rejecting the
People’s position that a minor had to serve time in custody after disposition
to satisfy the statute. (F.D., at pp. 890–891.)
We need not decide whether F.D.’s reasoning applies to section 602.3
and the juvenile court would have been authorized to impose on Ernesto the
time he already served in juvenile hall. “Generally, when the record shows
that the trial court proceeded with sentencing on the erroneous assumption it
lacked discretion, remand is necessary so that the trial court may have the
opportunity to exercise its sentencing discretion at a new sentencing
hearing.” (People v. Brown (2007) 147 Cal.App.4th 1213, 1228; see In re
Sean W. (2005) 127 Cal.App.4th 1177, 1181–1182.) If, however, “ ‘ “the record
shows that the trial court would not have exercised its discretion even if it
believed it could do so, then remand would be an idle act and is not
required.” ’ ” (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) Here, the
juvenile court made it abundantly clear in rejecting Ernesto’s section 602.3
arguments, as well as in making other comments at the dispositional
hearing, that it found it was in Ernesto’s best interest to be committed to

23
DJJ. Accordingly, even if the court misunderstood the scope of its discretion
under section 602.3, we need not direct it to reconsider whether to impose
additional physical confinement.
3. The juvenile court did not abuse its discretion by
committing Ernesto to DJJ instead of juvenile hall.
Ernesto also claims that even assuming section 602.3 required
additional physical confinement, the juvenile court abused its discretion by
committing him to DJJ instead of having him remain in juvenile hall. We are
not persuaded.
A placement decision is reviewed for an abuse of discretion, and the
factual findings supporting that decision are reviewed for substantial
evidence. (In re Carlos J. (2018) 22 Cal.App.5th 1, 5.) In choosing a
placement, the juvenile court must “take into account” several factors,
including “[t]hat the setting is the least restrictive or most family-like
environment that is appropriate for the child and available” and “[t]hat the
setting is the environment best suited to meet the child’s special needs and
best interest.” (Cal. Rules of Court, rule 5.790(h)(3)(B), (D); see Carlos J., at
p. 6.) To sustain a minor’s commitment to DJJ, there must be substantial
evidence “ ‘supporting a determination that less restrictive alternatives are
ineffective or inappropriate’ ” and “ ‘demonstrating . . . a probable benefit to
the minor by a [DJJ] commitment.’ ” (Carlos J., at p. 6; In re Teofilio A.
(1989) 210 Cal.App.3d 571, 576.)
Ernesto does not challenge the evidence that DJJ would benefit him,
instead arguing “there was no substantial evidence that allowing [him] to
remain in juvenile hall ‘would be ineffective or inappropriate.’ ” He observes
that “[i]t was undisputed that [he] had stellar performance in juvenile hall
and that he had substantially matured and made great gains in his
education, attitude, and mental health status.” In light of this success, he

24
disputes that his high YLS score supported a DJJ commitment, noting that
the score was due to “static factors,” like his previous offenses and family
history, “that would not change regardless of his placement.” He also argues
that the “leisure/recreation factor” was outside his ability to change, as it is
based on the availability of “ ‘organized activities’ ” and he “made excellent
use of his time” while in juvenile hall.
Ernesto’s focus on his YLS score is misplaced. Even if we put aside the
fact that he describes the YLS factors based on information outside the
record, that score constituted substantial evidence that he had a high risk of
reoffense, regardless of how much personal control he had over the factors on
which he scored highest. Accordingly, the juvenile court could reasonably
rely on the score to conclude that a more restrictive placement was
warranted. And although Ernesto had done well at juvenile hall, there were
opportunities particular to DJJ that promised to benefit him even more. For
example, the conservation camp was in close alignment with his personal
goals, and it offered experience and training in a profession that could help
him transition to a productive life in the community. In addition, DJJ offered
gang programming that was not available at juvenile hall, which was
especially important since it was generally agreed that Ernesto remained
vulnerable to gang involvement. In short, there was substantial evidence to
support the conclusion that DJJ was the most appropriate available
placement for him.
III.
DISPOSITION
The ruling that Ernesto’s precommitment credits apply only to the
maximum exposure term under section 726 is reversed. The dispositional
order is modified to reflect that Ernesto’s precommitment credits total
1,125 days, and the maximum exposure term under section 726 and the

25
maximum custodial term under section 731 are vacated. The matter is
remanded to the juvenile court with directions to set a maximum custodial
term consistent with this decision and apply Ernesto’s precommitment
credits against that term. The court shall prepare an amended commitment
order reflecting the changes to the dispositional order and forward a certified
copy of the amended commitment order to DJJ. The judgment is otherwise
affirmed as modified.

26
_________________________
Humes, P.J.

WE CONCUR:

_________________________
Margulies, J.

_________________________
Banke, J.

In re Ernesto L. A162151

27
Trial Court:

Superior Court of the County of Alameda

Trial Judge:

Hon. Scott Jackson

Counsel for Defendant and Appellant:

Amanda K. Roze, under appointment by the Court of Appeal

Counsel for Plaintiff and Respondent:

Rob Bonta, Attorney General

Lance E. Winters, Chief Assistant Attorney General

Jeffrey M. Laurence, Senior Assistant Attorney General

Donna M. Provenzano, Supervising Deputy Attorney General

Amit Arun Kurlekar, Deputy Attorney General

In re Ernesto L. A162151

28

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7361388. Public record. Not legal advice.