Opinion
B190018
4-25-2007
In re JOHNNY C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JOHNNY C., Defendant and Appellant.
Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Johnny C. appeals from an order committing him to the California Youth Authority (CYA). He contends the order of commitment was internally inconsistent and therefore confusing as to his maximum term of physical confinement and award of predisposition credits. We remand for the juvenile court to recalculate the award of predisposition credits, but otherwise affirm the order of commitment.
"The California Youth Authority (CYA) is now known as the Division of Juvenile Justice" pursuant to Government Code sections 12838 and 12838.5. (In re Geneva C. (2006) 141 Cal.App.4th 754, 756, fn. 2.) However, we will do as statutory and decisional law continues to do and refer to the CYA, for the sake of clarity in this matter.
FACTUAL AND PROCEDURAL BACKGROUND
Johnny C. was the subject of five wardship petitions filed on different dates over a two-year period, resulting in three different dispositions, of which the most recent was his commitment to CYA. Johnny C. was first adjudged a ward of the juvenile court in 2003, when he was 12 years old, after admitting the misdemeanor offense of disturbing the peace. According to the probation report, Johnny C. and another student were fighting at school. At the disposition hearing, Johnny C. was ordered home on probation, subject to certain terms and conditions.
In March 2005, Johnny C. was ordered to remain a ward of the juvenile court after he admitted he had possessed marijuana, a misdemeanor, and had committed second degree burglary of a vehicle, a felony as alleged in wardship petitions filed February 16 and 17, 2005, respectively. The juvenile court ordered him into the short-term camp community placement program.
Health and Safety Code section 11357, subdivision (b), Penal Code section 459.
In his most recent adjudication in October 2005, Johnny C. admitted he had committed first degree burglary, a violent felony, as alleged in a September 26, 2005 wardship petition and grand theft of a firearm, a felony, as alleged in an October 24, 2005 wardship petition. At the December 2005 disposition hearing, Johnny C. was ordered to remain a ward of the juvenile court and committed to CYA.
Penal Code sections 459, 667.5, subdivision (c), 487, subdivision (d)(2).
In setting the maximum term of physical confinement the juvenile court stated, "I am aware that I can advocate and determine with a pretty wide degree of discretion the maximum term of confinement. And I will elect, based on my knowledge of his history, to determine that the maximum term of confinement is six years. I had calculated the time to be eight years and two months. Well compute the credit for time served. Because well have to go through the minute order and do that. The care, custody and control is placed with the Youth Authority. Thank you."
Items 6, 7, and 8 of the preprinted order of "Commitment to the California Youth Authority" (form JV-732) ask for specific information about Johnny C.s delinquency history. Item 6 states: "The youth has been declared a ward of the court and is committed based on the following sustained petitions." What the juvenile court indicated in item 6 as the "terms" for the previously sustained allegations, in aggregation, was 9 years 11 months.
Item 8 of the commitment order requests "[t]he maximum period of confinement is (state years and months)," which the juvenile court indicated was "6 years."
In its response to item 7, the juvenile court determined Johnny C. should be awarded 207 days of predisposition credits.
DISCUSSION
Johnny C. does not challenge his commitment to CYA. Instead he contends the discrepancy between items 6 (9 years 11 months) and 8 (6 years) of the commitment order is confusing, and thereby subjects him to a potentially longer maximum term of physical confinement at CYA. He requests the matter be remanded for the juvenile court to clearly state the MPPC.
To address this contention, we find it useful to examine the interplay between Welfare and Institution Code sections 726 and 731 (hereinafter section 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." (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 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 CYA. Section 731(b) has long provided a minor may not be committed to CYA 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 [CYA] 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 CYA. First, section 726 directs the juvenile court, generally, "to determine the maximum term of imprisonment by choosing the longest period of incarceration applicable to an adult offender. . . . (§ 726, subd. (c).)" Second, while retaining this requirement, section 731 requires, in addition, that the juvenile court set a "`maximum term of physical confinement in CYA." Further, section 731 requires the juvenile court to exercise its discretion in making the latter determination, "`based upon the facts and circumstance of the matter . . . which brought . . . the minor under the jurisdiction of the juvenile court." 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. (2005) 127 Cal.App.4th 1529, 1538.
In re Carlos E., supra, 127 Cal.App.4th at page 1538.
In re Carlos E., supra, 127 Cal.App.4th at page 1538.
In re Carlos E., supra, 127 Cal.App.4th at page 1542; accord, In re Alex N. (2005) 132 Cal.App.4th 18, 26; In re Jacob J. (2005) 130 Cal.App.4th 429, 438; In re Sean W. (2005) 127 Cal.App.4th 1177, 1184-1186.
Here, there is no ambiguity with respect to the only point of practical importance to Johnny C. — the juvenile court properly exercised its discretion pursuant to section 731 in setting a maximum term of physical confinement of 6 years, both orally and in item 8 of the commitment order. Because we find no ambiguity on the face of the commitment order as to Johnny C.s maximum term of physical confinement, no remand is necessary for the order to be corrected or clarified.
We agree it is unclear what the juvenile court intended in calculating the maximum term of imprisonment under section 726. At the disposition hearing the court stated the term was "eight years and two months" whereas item 6 reflects it as 9 years 11 months. In fact, the maximum term of imprisonment under section 726 should be 7 years 5 months, calculated as follows: a six-year term for first degree burglary in violation of Penal Code section 459, representing the upper term for that offense as alleged in the September 26, 2006 petition; an eight-month term for grand theft of a firearm in violation of Penal Code section 487, subdivision (d)(2) representing one-third of the two-year middle term for that offense as alleged in the October 24, 2005 petition, and an eight-month term for second degree burglary of a vehicle in violation of Penal Code section 459, representing one-third of the two-year middle term for that offense as alleged in the February 17, 2005 petition, and a 30-day term for disturbing the peace in violation of Penal Code section 415, representing one-third of the 90-day term for that offense as alleged in the July 18, 2003 petition.
Johnny C. also urges remand is necessary for the juvenile court to recalculate the award of predisposition credits. The People submit the matter should be remanded for a recalculation by the juvenile court due to a possible error, but the People also maintain this court can recalculate the award of predisposition credits based on the record. In an abundance of caution based on the state of the record, we remand the matter for the juvenile court to recalculate the award of disposition credits. At that time, the parties are not precluded from bringing to the juvenile courts attention any questions concerning the determination of Johnny C.s maximum term of physical confinement under section 731. In view of our decision to remand, the juvenile court is requested to make appropriate corrections to its calculations under section 726.
DISPOSITION
The matter is remanded for the juvenile court to recalculate Johnny C.s award of predisposition credits. The court shall also make the appropriate corrections to its calculations under Welfare and Institutions Code section 726, subdivision (c) in light of this opinion. In all other respects the order under review is affirmed. A corrected commitment order shall be forwarded to CYA (the Division of Juvenile Justice).
We concur:
PERLUSS, P. J.
WOODS, J.