In re Matthew M.

Filed 7/3/07 In re Matthew M. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

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

James H. Dippery, Jr., 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, Stephen G. Herndon and Susan J. Orton, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Matthew M., a minor, admitted allegations, contained in three separate juvenile wardship petitions (Welf. & Inst. Code, 602),^[1]that he carried a concealed firearm while he was an active participant in a criminal street gang (Pen. Code, 12025, subd. (b)(3)); committed that offense for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further or assist in criminal conduct by gang members (Pen. Code, 186.22, subd. (b)(1)); carried concealed on his person a dirk or dagger (Pen. Code, 12020, subd. (a)); in committing that offense, violated probation granted in a prior wardship proceeding; possessed a firearm, after having been previously adjudicated of a felony (Pen. Code, 12021, subd. (a)(1)); and violated probation in committing that offense.

Following the subsequent disposition hearing, the juvenile court ordered appellant committed to the California Youth Authority, which is now known as the Department of Corrections and Rehabilitation, Juvenile Justice (DCRJJ). The court declared appellants maximum period of physical confinement (MPPC) to be nine years four months, consisting of three years for carrying a concealed firearm; five years for the accompanying gang enhancement; and eight months on each of the two remaining offenses.

On appeal, appellant contends the juvenile court erroneously failed to exercise its discretion under section 731, subdivision (b) (section 731(b)) in setting the MPPC. We will affirm.

DISCUSSION^[2]

In order to address appellants contention, we find it useful to examine the interplay between sections 726 and 731. Section 726, subdivision (c) provides, in pertinent part, that [i]f 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 (the longest term imposed for any of the offenses) and subordinate terms (one-third of the middle term imposed for each other offense).

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.

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. (Id. 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 four months--is equal to the section 726 maximum term of imprisonment for the offenses upon which the court based the MPPC. Three years is the upper term for carrying a concealed firearm; five years is the prescribed term for a gang enhancement where the underlying felony is a serious felony as defined in Penal Code section 1192.7, subdivision (c); and eight months is one-third of the midterm for a each of the two other offenses upon which the MPPC was based. There is also no dispute as to the principles summarized above, and therefore the court had the discretion to declare an MPPC of less than nine years four months. Finally, there is no disagreement that [f]ailure to exercise a discretion conferred and compelled by law constitutes a denial of a fair hearing and a deprivation of fundamental procedural rights, and thus requires reversal. (People v. Penoli (1996) 46 Cal.App.4th 298, 306.) The parties part company, however, on the question of whether the court exercised its section 731(b) discretion.

Appellants contention that the court failed to do so is without merit. That contention is premised, in turn, on the claim that reversal is mandated absent a clear showing in the record that the court was aware of, and exercised, its discretion under section 731(b). This is incorrect. It is not required that the record demonstrate the court exercised its discretion. Rather, to establish error, appellant has the burden of affirmatively showing that the court failed to exercise its discretion. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [ A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown ]; People v. Penoli, supra, 46 Cal.App.4th at pp. 305-306 [[o]rdinarily, of course, a trial courts reasons for ruling in a particular manner are not reviewable on appeal, but [a]n exception is made . . . when the courts comments unambiguously disclose that it failed to pass on the merits of the issue [citation], or that its ruling embodied, or rested upon, a misunderstanding of the relevant law] (italics added).) He has not met that burden; there is nothing in the record that affirmatively shows the court was unaware of and/or failed to exercise its discretion.

Indeed, the record indicates the contrary. After stating the maximum confinement time for each offense, the court stated: Based on the lack of success in rehabilitating this young man and his chronic use of controlled substances and his fascination with possession of illegal weapons, the Court sets the maximum confinement time as nine years and four months. These references to facts and circumstances relating to appellant suggest 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).

On this record, appellant has not established error.

DISPOSITION

The judgment is affirmed.

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^*Before Harris, Acting P.J., Cornell, J., and Kane, J.

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

^[2] Because the facts of the instant offenses are not relevant to the issues raised on appeal, we will forgo a recitation of those facts.