Filed 8/20/26 In re Sergio M. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re SERGIO M., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE, D086210
Plaintiff and Respondent,
v. (Super. Ct. No. JJL001050)
SERGIO M.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County,
William D. Quan, Judge. Reversed and remanded.
Richard Jay Moller, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Arlene A. Sevidal, Assistant Attorney General, Matthew
Mulford and Arlyn Escalante, Deputy Attorneys General, for Plaintiff and
Respondent.
I. INTRODUCTION
Sergio M. appeals from the juvenile court’s order of wardship following
a true finding that he committed attempted murder and second degree
robbery. His appointed appellate counsel filed an opening brief raising no
arguable issues pursuant to People v. Wende (1979) 25 Cal.3d 436 and
Anders v. California (1967) 386 U.S. 738. We asked for supplemental
briefing about whether the trial court erred by setting the maximum term of
confinement as seven years to life for the attempted murder in the absence of
an express finding that the attempted murder was willful, deliberate, and
premeditated. After reviewing the parties’ supplemental briefing, we
conclude the maximum term of confinement is unauthorized, and we remand
for a new disposition hearing. We find no other arguable issues on appeal.
II. BACKGROUND
In 2024, Sergio M. shot Victor Tamayo in the thigh during a planned
robbery. The Imperial County District Attorney’s Office filed a juvenile
wardship petition under Welfare and Institutions Code section 602, alleging
that Sergio M. committed willful, deliberate, and premeditated attempted
murder (Pen. Code,1 §§ 664, subd. (a), 187, subd. (a); count 1) and robbery
(§ 211; count 2).
During the People’s closing argument at the jurisdictional hearing, the
trial court incorrectly stated that the petition did not allege premeditation in
count 1. The prosecutor agreed and asked the court to conform the petition to
proof.
The trial court found both counts true, determining that Sergio M.
came within the definition of Welfare and Institutions Code section 602.
Regarding the attempted murder, the trial court stated,
1 All further undesignated statutory references are to the Penal Code.
2
I think the People have proven the case beyond a
reasonable doubt; and, therefore, the court will find that
the allegations of the petition as to count 1 for attempted
murder, I am not going to allow for the amendment to
prove. I think it needs to be alleged and proven. Because
of that, I think — though the intent to kill is clear — I
think, therefore, the allegations in the attempted murder
charge in count 1 will be found to be true beyond a
reasonable doubt.
A probation officer recommended that the trial court set the maximum
time of confinement as seven years to life for count 1, plus one year for
count 2.2 The probation officer’s report referenced the willful, deliberate, and
premeditation allegation.
At the disposition hearing, the trial court stated,
We looked at the facts of this case and from the
evidence that was presented at trial, it’s almost as if there
was this conspiracy, or it seemed like it, in order to have
this robbery take place and to then scare the individual,
but it turned out different in terms of the shooting.
That, almost to the court, noting the plan that was in
place from what the evidence has shown, almost like
setting him up. And that is conduct that the court cannot
look away from. I do think that the only plan is Secure
Track.
The trial court declared Sergio M. a ward of the court and committed
him to the Imperial County Juvenile Hall Secure Track. The trial court set
the maximum time of confinement at one year for the robbery count, and
2 The probation report refers to the S.M.’s disposition variously as
“8 years to life” or “7 years to life [¶] [plus] 1/3 of the middle term of 3 years
(1 year)”.
3
seven years to life for the attempted murder,3 with a 5-year baseline term.
Sergio M.’s timely appeal followed.
III. DISCUSSION
A. The Parties’ Arguments
Sergio M. argues that his life sentence is unauthorized because the
trial court did not expressly find that the attempted murder was willful,
deliberate, and premeditated. The People disagree, arguing that the trial
court impliedly made such a finding. The People rely on the trial court’s
statements at the jurisdictional hearing that “the intent to kill is clear,” and
that “the allegations in the attempted murder charge” had been proven.
They also rely on the reference to the willful, deliberate, and premeditated
allegation in the probation officer’s report, and the trial court’s statements at
the disposition hearing where it described the robbery as planned.
B. Attempted Murder and Juvenile Sentencing
When committing a juvenile to a secure youth treatment facility as in
the case here, the court must “set a maximum term of confinement.” (Welf. &
Inst. Code, § 875, subd. (c)(1).) “The maximum term of confinement shall not
exceed the middle term of imprisonment that can be imposed upon an adult
convicted of the same offense or offenses.” (Id., subd. (c)(1)(B).)
Attempted murder is generally punishable by five, seven or nine
years in state prison. (§§ 664, subd. (a), 190.) However, if the attempted
murder is willful, deliberate, and premeditated, and that fact is charged in
the accusatory pleading and found true by the trier of fact, the crime is
punishable by life in prison with the possibility of parole. (§ 664, subd. (a).)
3 “An inmate imprisoned under a life sentence shall not be paroled
until he or she has served . . . [¶] [a] term of at least seven calendar years.”
(§ 3046, subd. (a)(1).)
4
C. Analysis
The trial court and the People believed that the petition contained no
willful, deliberate, and premeditated allegation regarding the attempted
murder.4 With regard to the homicide count, the petition states, “It is further
alleged that the above offense was committed willfully, deliberately, and with
premeditation within the meaning of . . . section 664(a).” (Italics added.)
Section 664 describes the impact on sentencing of attempted crimes, murder
among them. However, the first degree murder allegation itself is found at
section 189, subdivision (a).
Whether the reference to section 664 was a clerical error or a
substantive omission is not before us, but the parties appeared to conclude
the latter. For instance, when rendering his verdicts, the trial judge stated,
“So before I move on, . . . the petition does not allege the premeditation.” The
prosecutor responded, “Correct, Your Honor. It does not. We just would ask
that the court, based on how the evidence came out — and, again, I would
point out that we — the way the evidence came out and the whole agreement,
how it went down. We didn’t have this information previously as we never
interviewed or debriefed the codefendant. So given that circumstance, the
People would ask that it be conformed to proof, that is [section] 187.” The
trial court then denied the People’s request to amend the petition to add a
willful, deliberate, and premeditated allegation, stating that such an
allegation had to be pleaded and proven. Given this context, although the
trial court stated, “the allegations in the attempted murder charge in count 1
will be found to be true,” the trial court did not intend, nor did the People
expect a finding of a willful, deliberate, or premeditated murder.
4 Defense counsel did not address this issue at the disposition hearing.
5
None of the other circumstances cited by the People establish an
implied willful, deliberate, and premeditated finding. The trial court’s
statement that “the intent to kill is clear” is insufficient because “the mere
intent to kill is not the equivalent of a deliberate and premeditated intent to
kill.” (People v. Boatman (2013) 221 Cal.App.4th 1253, 1264.)
The trial court’s statements at the disposition hearing likewise fall
short. The trial court was not making any findings on charged allegations
but instead determining whether to commit Sergio M. to the Juvenile Hall
Secure Track. Additionally, by stating “there was this conspiracy . . . to have
this robbery take place and to then scare the individual, but it turned out
different in terms of the shooting,” the trial court appears to have concluded
that the robbery was planned, but the shooting was not.
Finally, although the probation officer’s report referenced the willful,
deliberate, and premeditated allegation, the trial court did not discuss that
allegation at the disposition hearing. Nor is there any indication that the
trial court intended to reverse course from its previous determination that
the People never pleaded the willful, deliberate, and premeditated allegation.
Based on the foregoing, the trial court never found, whether expressly
or impliedly, that the attempted murder was willful, deliberate, and
premeditated. The seven-year-to-life maximum term of confinement for
count 1 is therefore unauthorized. Accordingly, we reverse and remand for a
new disposition hearing.
6
IV. DISPOSITION
The judgment is reversed, solely with respect to the maximum term of
confinement, and the matter is remanded for a new disposition hearing.
RUBIN, J.
WE CONCUR:
DATO, Acting P. J.
BUCHANAN, J.
7