Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tuolumne County Super. Ct. No. JV5920. Eric L. DuTemple, Judge.
Harry Zimmerman, 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, Clayton S. Tanaka and Paul A. Bernardino, Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Harris, J., and Cornell, J.
OPINION
In June 2007, following a contested jurisdiction hearing, the juvenile court found true an allegation that appellant Andrew C., a minor, committed a violation of Penal Code section 289, subdivision (a)(1) (forcible sexual penetration). In July 2007, following the subsequent disposition hearing, the court ordered appellant committed to the Department of Corrections and Rehabilitation, Juvenile Justice (DCRJJ) and declared his maximum term of physical confinement (MTPC) be nine years eight months, by aggregating the terms for the instant offense and offenses adjudicated in prior wardship proceedings.
On appeal, appellant’s sole contention is that the court erroneously failed to exercise its discretion under Welfare and Institutions Code section 731, former subdivision (b) (section 731(b)) in setting the MTPC. As best we can determine, respondent does not dispute this contention. We will remand for further proceedings with directions that the court exercise its discretion under section 731(b), and in all other respects affirm.
Except as otherwise indicated, all statutory references are to the Welfare and Institutions Code.
Section 731 was amended effective September 29, 2007, redesignating subdivision (b) as subdivision (c), and making other changes not relevant to our discussion. (Stats. 2007, ch. 257, § 2.) All references to section 731 are to the version in effect in July 2007, at the time of appellant’s disposition hearing.
DISCUSSION
In order to address appellant’s 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.” (Italics 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 subdivision (a) of 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).” Subordinate misdemeanor terms are calculated as one-third of the maximum term for such offenses. (In re Eric J. (1979) 25 Cal.3d 522, 536-538.)
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].” (In re Carlos E., supra, 127 Cal.App.4th at p. 1538.) 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.’” (In re Carlos E., supra, 127 Cal.App.4th at p. 1538.) The “maximum term of physical 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 minor’s maximum term 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.)
The MTPC in the instant case was calculated in accordance with the formula set forth in Penal Code section 1170.1. The “principal term” portion of the MTPC was an eight-year period for the forcible sexual penetration adjudicated in the instant case, representing the upper term for that offense, and the “subordinate terms,” based on offenses adjudicated in prior wardship proceedings, were as follows: eight months for vehicle theft (Veh. Code, § 10851, subd. (a)), representing one-third of the midterm for that offense, and four months on each of three misdemeanor vandalism (Pen. Code, § 594, subd. (a)) adjudications, representing one-third of the maximum term for that offense. Thus, the MTPC declared by the court was equal to the adult maximum, i.e., the section 726 “maximum term of imprisonment,” for the offenses upon which the court based the MTPC.
Appellant bases his argument that the court failed to exercise its discretion under section 731(b) to set an MTPC of less than the adult maximum on the following exchange, which occurred immediately after the court stated that the MTPC included a period of eight years for the instant offense:
“MR. PRICE [appellant’s counsel]: It’s my understanding that the Court does have the option of not giving him that maximum term. Perhaps the Court could just impose a term of two years. [Sic.]
“MS. SHEPHERD [deputy district attorney]: Actually
“THE COURT: Actually, Counsel, I don’t think that’s correct. But the court’s practice, and I think the proper thing to do, is [to] give the maximum amount. The court doesn’t determine how long the minor stays there. That’s strictly up to counseling and guidance.”
Thus, when counsel argued that the portion of the MTPC related to the instant offense could be less than the upper term, the court stated it did not agree. The court’s response to counsel’s argument indicates the court did not realize it had discretion under section 731(b) to set an MTPC of less than the adult maximum, based on the facts and circumstances that brought or continued appellant before the juvenile court. It follows, therefore, that the court did not exercise that discretion. This error requires remand. (In re Carlos E., supra, 127 Cal.App.4th at p. 1543.)
DISPOSITION
The matter is remanded to the juvenile court for that court to set a maximum term of physical confinement based on the facts and circumstances that brought or continued the minor before the juvenile court, in accordance with section 731(b). In all other respects, the judgment is affirmed.