In re Eduardo B.

Filed 4/12/07 In re Eduardo B. CA5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Peter A. Warmerdam, Juvenile Court Referee.

Patricia A. Andreoni, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr. , Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Eduardo B., a minor, admitted allegations contained in two separate juvenile wardship petitions (Welf. & Inst. Code, 602)^[1]that he committed violations of Penal Code sections 12020, subdivision (a)(4) (carrying a dirk or dagger concealed on ones person)^[2]and 215 (carjacking). At a disposition hearing covering both offenses, the court ordered appellant committed to the Department of Corrections and Rehabilitation, Juvenile Justice (DCRJJ), formerly known as the California Youth Authority (CYA), and declared his maximum period of physical confinement (MPPC) to be nine years eight months, consisting of nine years on the carjacking and eight months on the weapon offense.

On appeal, appellant contends the court erroneously (1) failed to exercise its statutory discretion in setting the MPPC, and (2) failed to exercise its discretion under section 702 to determine whether the weapon offense was a felony or misdemeanor. We will find merit in the second of these contentions, and remand for further proceedings.

FACTUAL BACKGROUND

Instant Offenses^[3]

On August 6, 2006, City of Modesto police officers investigating a report of a carjacking made contact with a male subject (victim) who told them the following. Two male juveniles approached him while he was washing his car. One of them pulled out a handgun and told the victim to get out of the way, at which point the two juveniles got into the victims car and drove off.

Thereafter, City of Modesto police officers and Stanislaus County sheriffs deputies located the victims car and initiated pursuit. During this pursuit, the victims car reached speeds of 70 to 80 miles per hour while traveling through a residential section of Modesto. At one point, the stolen vehicle bore down on a stopped police patrol vehicle and suddenly swerved when it was approximately 15 to 20 feet away to avoid a collision. Shortly thereafter, the stolen vehicle collided with a parked vehicle. Appellant and another minor fled the scene on foot, but were later apprehended. The victim, who was brought to the place appellant was being detained, identified appellant as one of the two juveniles who took his car. When apprehended, appellant, who had several gang tattoos, admitted being a gang member.

On May 22, 2006, City of Delano police officers observed appellant riding his bicycle in the opposing lane of traffic[,] . . . without a helmet. The officers stopped appellant, and in a search of appellants person, found a knife and gang-related paraphernalia.

Prior Offenses

Appellant was initially adjudged a ward of the court in April 2004, after he admitted an allegation that he committed a misdemeanor violation of Vehicle Code section 10851, subdivision (a) (unlawful taking or driving of a vehicle). In October 2004, appellant admitted allegations that he committed second degree burglary (Pen. Code, 459 & 460, subd. (b)) and violated his probation by twice testing positive for controlled substances. In November 2004, the court ordered appellant committed to Camp Erwin Owen (CEO). In March 2005, appellant admitted allegations that he failed the program at CEO, and the court ordered appellant committed to Kern Crossroads Facility.

DISCUSSION

Declaration of MPPC

Appellant contends the court erroneously failed to exercise its discretion under section 731, subdivision (b) (section 731(b)) in setting the MPPC.

In order to address this contention, we find it useful to examine the interplay between sections 726 and 731. Section 726, subdivision (c) provides, in pertinent part, that 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. (Emphasis added.) This subdivision goes on to provide, subject to exceptions not relevant here, as follows: the maximum term of imprisonment, as that phrase is used in section 726, is, for a felony, the longest of the three periods prescribed for the offense; the maximum term of imprisonment for a misdemeanor is the longest term of imprisonment prescribed by law; and where the court elects to aggregate confinement periods for multiple felony offenses, the maximum term of imprisonment must be specified in accordance with the formula set forth in Penal Code section 1170.1, i.e., the sum of the principal term (Pen. Code,  1170, subd. (a)(1)) (the longest term imposed for any of the offenses) and subordinate terms (ibid.) (one-third of the middle term imposed for each other offense). Subordinate misdemeanor terms are calculated as one-third of the maximum term for such offenses. (In re Eric J. (1979) 25 Cal.3d 522, 536.)

Section 731 pertains to commitments to the DCRJJ. Section 731(b) has long provided that a minor may not be committed to the DCRJJ for a period in excess of the maximum period of imprisonment for an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court. And effective January 1, 2004, that statute was amended to add the following sentence: A minor committed to [the DCRJJ] 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. ( 731(b).)

Thus, taken together, sections 726 and 731 require the juvenile court to make two distinct determinations when committing a minor to the DCRJJ. First, [s]ection 726 directs the juvenile court to determine the maximum term of imprisonment by choosing the longest period of incarceration applicable to an adult offender . . . . ( 726 subd. (c).) (In re Carlos E. (2005) 127 Cal.App.4th 1529, 1538.) Second, while retaining this requirement, section 731 requires, in addition, that the court set a maximum term of physical confinement in [the DCRJJ]. (Ibid.) Further, as this court held in Carlos E., section 731 requires that in making the latter determination, the court exercise its discretion, based upon the facts and circumstance of the matter . . . which brought . . . the minor under the jurisdiction of the juvenile court. (Ibid.) The maximum term of confinement under section 731(b) may not be more than the maximum term of imprisonment under section 726, but it may be less. (In re Carlos E., supra, 127 Cal.App.4th at p. 1542.) The First and Third District Courts of Appeal came to the same conclusions in In re Sean W. (2005) 127 Cal.App.4th 1177 and In re Jacob J. (2005) 130 Cal.App.4th 429, respectively. These holdings represent a major departure from the prior, long-established rule that a minors maximum period of physical confinement was necessarily the maximum term that could be imposed on an adult offender. (In re Carlos E., supra, 127 Cal.App.4th at pp. 1534-1537.)

There is no dispute that the MPPC declared by the court--nine years eight

months--is equal to the section 726 maximum term of imprisonment for the offenses upon which the court based the MPPC; nine years is the upper term for carjacking, and eight months is one-third of the midterm for a felony violation of Penal Code section 12020, subdivision (a)(4). There is also no dispute as to the principles summarized above, and that therefore the court had the discretion to declare an MPPC of less than nine years eight months. The parties part company, however, on the question of whether the court exercised that discretion.

Appellant bases his claim that the court did not exercise its section 731(b) discretion, in turn, on the claim that there is nothing in the record showing the court was aware it had such discretion. And appellant bases that claim on the following statement by the court at the disposition hearing: The available confinement time is nine years and eight months, less 61 days of credit for time served. Appellant asserts that the court simply calculated the maximum confinement time as the maximum adult sentence, with no further comment.

Appellants argument, however, ignores the fact that moments later, the court stated, Based on the seriousness of the offense, which leads to this commitment, the prior failures of the young man and rehabilitative efforts, the Court does set the maximum period of confinement at nine years and eight months. The courts references to available confinement time and maximum period of confinement indicate the court understood it had two distinct determinations to make. And the courts references to facts and circumstances relating to appellant--the seriousness of the carjacking offense and appellants past rehabilitative failures--indicate the court was aware of the discretion granted by the statute. As indicated above, prior to the 2004 amendment to section 731(b), the maximum term of imprisonment and the MPPC were necessarily the same, regardless of the facts and circumstances of the matters which brought or continued the minor under the jurisdiction of the juvenile court. The court would have no occasion to consider facts and circumstances in the context of setting the MPPC other than in the exercise of its discretion under section 731(b). Thus, the record, in our view, demonstrates that the court was aware of, and in fact exercised, that discretion.

Section 702

Appellant contends the court was unaware of, and failed to exercise, its discretion under section 702 to determine whether the weapon offense was a felony or misdemeanor, and that therefore remand is required. The People concede the point.

Carrying a concealed dirk or dagger may be punished as either a felony or misdemeanor. (Pen. Code, 12020, subd. (a).) Section 702 provides, in relevant part: If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony. The language of [section 702] is unambiguous. It requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemeanor in the case of an adult. (In re Manzy W. (1997) 14 Cal.4th 1199, 1204.) Thus, California Rules of Court, rules 5.778(f)^[4]provides, in relevant part: (f) Findings of the court ( 702) [] On an admission or plea of no contest, the court shall make the following findings noted in the minutes of the court: . . . [] (9) In a section 602 matter, the degree of the offense and whether it would be a misdemeanor or felony had the offense been committed by an adult. If any offense may be found to be either a felony or misdemeanor, the court must consider which description applies and expressly declare on the record that it has made such consideration and must state its determination as to whether the offense is a misdemeanor or a felony. These determinations may be deferred until the disposition hearing. And rule 5.790(a) provides in relevant part: At the disposition hearing: [] (1) If the court has not previously considered whether any offense is a misdemeanor or felony, the court must do so at this time and state its finding on the record. If the offense may be found to be either a felony or a misdemeanor, the court must consider which description applies and must expressly declare on the record that it has made such consideration and must state its finding as to whether the offense is a misdemeanor or a felony.

At the disposition hearing, the court, after noting that the instant weapon offense was charged as a felony and that carjacking is one of the felonies listed is section 707, subdivision (b), stated, Both counts again are felonies. As the People concede, it appears the court was simply reiterating that the counts, . . . which appellant had admitted . . . , were charged as felonies. (Emphasis added.) The court did not explicitly state it had considered whether the offense in question, as committed by appellant, was a misdemeanor or a felony.

Further, the juvenile court did not at any time refer to its discretion to declare the offense a misdemeanor, and neither the prosecution, defense counsel nor the probation officer pointed out to the court that it had such discretion. Accordingly, as the People also concede, the courts error was prejudicial. (In reManzy W., supra, 14 Cal.4th at p. 1209 [in determining whether remand is necessary, [t]he key issue is whether the record as a whole establishes that the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement limit].)

DISPOSITION

The matter is remanded to the juvenile court. The court is directed to make the findings and declarations required by statute and rule of court with respect to appellants violation of Penal Code section 12020, subdivision (a)(4). If the court finds the offense to be a misdemeanor, the MPPC shall be vacated and the court shall declare a new MPPC.^[5] In all other respects, the judgment is affirmed.

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^*Before Vartabedian, Acting P.J., Harris, J., and Gomes, J.

^[1] Except as otherwise indicated, all statutory references are to the Welfare and Institutions Code.

^[2] We refer to this offense as the weapon offense.

^[3] Our summary of the facts of the instant offenses is taken from the report of the probation officer, which is, in turn, based on law enforcement agency reports.

^[4] All rule references are to the California Rules of Court.

^[5] As indicated above, the MPPC declared by the court assumes that the weapon offense was a felony.