Ernest M., In re, Cr. 29069

• Decision Date: 22 July 1977
• Docket Number: Cr. 29069
• Citation: 71 Cal.App.3d 890,139 Cal.Rptr. 773
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of ERNEST M., a person coming under the juvenile court law. Kenneth F. FARE, Acting Chief Probation Officer, Plaintiff and Respondent, v. ERNEST M., Defendant and Appellant.

Page 773

139 Cal.Rptr. 773

71 Cal.App.3d 890

In the Matter of ERNEST M., a person coming under the juvenile court law.

Kenneth F. FARE, Acting Chief Probation Officer, Plaintiff and Respondent, v. ERNEST M., Defendant and Appellant.

Cr. 29069.

Court of Appeal, Second District, Division 5, California.

July 22, 1977.

Wilbur F. Littlefield, Public Defender, Los Angeles County, John J. Gibbons, Karen Atkins and Laurence M. Sarnoff, Deputy Public Defenders, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Howard J. Schwab and Beverly K. Falk, Deputy Attys. Gen., for plaintiff and respondent.

ASHBY, Associate Justice.

A petition was filed alleging appellant to be a person described by Welfare and Institutions Code section 602 in that on February 19, 1976, he was in the lawful custody of the probation officer of Los Angeles County in a county juvenile hall, and committed to a county juvenile home, ranch, camp, and forestry camp, to wit, Emergency Care Program at Rancho San Antonio, and did wilfully escape from custody in violation of Welfare and Institutions Code section 871. The petition was found true; appellant was ordered to remain a ward of the juvenile court, and was placed at Camp Paige. We treat the notice of appeal as from the judgment. (See In re Timothy N., 48 Cal.App.3d 862, 867, 121 Cal.Rptr. 880; In re William C., 70 Cal.App.3d 570, 577, 138 Cal.Rptr. 843.)

Welfare and Institutions Code section 871 provides:

'Any person under the custody of a probation officer in a county juvenile hall, or committed to a county juvenile home, ranch, camp, or forestry camp, who escapes or attempts to escape from such county juvenile hall, home, ranch, camp, or forestry camp, is guilty of a misdemeanor.'

Appellant's sole contention is that Rancho San Antonio, the institution from which he escaped, is not a county juvenile hall, nor a county juvenile home, ranch, camp, or forestry camp within the meaning of section 871.

Rancho San Antonio is a residential treatment facility operated by the Brothers of the Holy Cross of the Roman Catholic Church. It is widely used by the juvenile court as a 'suitable placement' facility. Currently all the young men placed there were placed by the counties of Los Angeles, Orange, or San Diego; there are no private placements. Its director is Brother Robert McCarthy.

The circumstances by which appellant was placed in custody at Rancho San Antonio are derived from the testimony below, and appellant's juvenile court file, of which we take judicial notice. (Evid. Code, §§ 452, 453, 459; People v. Hallman, 35 Cal.App.3d 638, 641, fn. 1, 110 Cal.Rptr. 891.) A petition under section 602 based upon a charge of motorcycle theft was sustained against appellant on January 19, 1976. On February 3, 1976, appellant was ordered placed in the custody of the probation officer for suitable placement at CEDU Foundation. The order provided that appellant remain at juvenile hall pending placement at CEDU. While appellant was awaiting an opening at CEDU, the probation officer authorized appellant's temporary placement at Rancho San Antonio, Emergency Care Program. ¹ Appellant entered Rancho San Antonio on February 18, 1976. Sometime shortly after lunch the next day, February 19, appellant disappeared. He had no permission to leave; Rancho San Antonio had no authority to release him because he was technically detained.

Appellant contends that Rancho San Antonio is not a 'county juvenile home, ranch, camp, or forestry camp' within the meaning of Welfare and Institutions Code section 871. (Italics added.) The establishment of such juvenile homes, ranches and camps is provided for in Welfare and Institutions Code sections 880--893. Rancho San Antonio does not appear to have the characteristics of such establishments, such as the vesting in the county of complete operation and authority for its administration (Welf. & Inst. Code, § 881), a director 'appointed by the probation officer, subject to confirmation by the board of supervisors' (Welf. & Inst. Code, § 882), or construction or operation with public funds. (See Welf. & Inst. Code, §§ 887, 891.)

The trial court took judicial notice that Rancho San Antonio was widely used by the court as a 'suitable placement' facility ² and concluded that the Rancho obviously met the standards of the probation department and therefore could be said to have been 'established in conjunction with the probation department' as provided in Welfare and Institutions Code section 882. ³

We need not determine, however, the validity of the theory suggested by the trial court. Section 871 refers to '(a)ny person under the Custody of a probation officer in a county juvenile hall, or committed to a county juvenile home, ranch, camp, or forestry camp, . . .' (Italics added.) Appellant was not 'committed' to Rancho San Antonio. Rather, he had been ordered placed at CEDU Foundation and was in the custody of the probation officer at juvenile hall pending placement. Detention at juvenile hall pending such placement is authorized by Welfare and Institutions Code section 737. The probation officer merely provided for the temporary detention of appellant at Rancho San Antonio ...