Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Before Wiseman, Acting P.J., Levy, J., and Gomes, J.
APPEAL from a judgment of the Superior Court of Kern County No. JW102685-06, Peter A. Warmerdam, Juvenile Court Referee.
Patricia L. Watkins, 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, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Pursuant to a plea agreement, appellant R.V., a minor, pled no contest to (1) an allegation that she committed a battery in which she inflicted serious bodily injury (aggravated battery) (Pen. Code, § 243, subd. (d)) and (2) a gang enhancement allegation, i.e., an allegation that in committing the aggravated battery, she acted for the benefit of, at the direction of, or in association with a criminal street gang within the meaning of section 186.22, subdivision (b)(1). Also pursuant to the plea agreement, the court dismissed allegations of second degree robbery (§§ 211, 212.5, subd. (c)) and misdemeanor battery (§ 242). Subsequently, following the disposition hearing, the court ordered appellant committed to the Department of Corrections and Rehabilitation, Juvenile Justice (DCRJJ) and declared appellant’s maximum period of physical confinement (MPPC) to be 14 years, consisting of four years for the substantive offense and, under section 186.22, subdivision (b)(1)(C), 10 years on the gang enhancement.
Except as otherwise indicated, all statutory references are to the Penal Code.
On appeal, appellant contends (1) the court erred by including in the MPPC 10 years for the gang enhancement, and (2) the court failed to exercise its discretion in determining the MPPC. We will reduce the portion of the MPPC attributable to the gang enhancement to five years, and otherwise affirm.
The factual summary is taken from the report of the probation officer.
On April 7, 2006, a police officer, investigating a report of an assault, made contact with a 16-year-old female (the victim), who told the officer the following: While the victim was walking home from school that day, appellant and two other females attacked her. During this attack, appellant struck the victim in the head twice with a beer bottle. Appellant also “grabbed [the victim] by the hair, pushed her toward the ground, and tried to stab her on the side of her neck with the edge of the broken beer bottle . . . .” The victim, however, “pulled her chin up to her chest and brought up her left arm in order to block the blow.” After the attack, appellant and the two other attackers ran from the scene. As appellant ran off she looked back and yelled, “ ‘Poros East Side, bitch.’ ”
The investigating officer reported that the victim sustained a cut on the right side of her face, which required 11 stitches to close, and a cut on her left forearm, which required 15 stitches to close.
DISCUSSION
The Gang Enhancement
As indicated above, a person who commits a felony under certain circumstances indicating gang involvement is subject to increased punishment under the section 186, subdivision (b)(1) gang enhancement. Where the underlying felony is a violent felony under section 1192.7, subdivision (c), the increased punishment is 10 years (§ 186, subd. (b)(1)(C)); where the underlying felony is a serious felony under section 667.5, subdivision (c), the increased punishment is five years (§ 186, subd. (b)(1)(B)); and any other felony subjects the perpetrator to an additional term of two, three or four years at the court’s discretion (§ 186, subd. (b)(1)(A)). Here, as is also indicated above, the court imposed the 10-year enhancement under section 186, subdivision (b)(1)(C).
However, as the parties agree, the underlying felony in the instant case, aggravated battery, does not qualify as a “violent” felony (§ 667.5, subd. (c)), and therefore does trigger the section 186, subdivision (b)(1)(C) 10-year enhancement, unless it involves domestic violence. (People v. Hawkins (2003) 108 Cal.App.4th 527, 531.) Thus, as the parties also agree, because the instant offense did not involve domestic violence, it did not subject appellant to the 10-year gang enhancement.
Based on the foregoing, appellant argues that “the court incorrectly calculated her confinement time as ten years for the gang enhancement . . . .” The People counter that appellant admitted the 10-year gang enhancement as part of the plea agreement; she has received the benefit of her plea bargain through the dismissal of the robbery allegation; and therefore appellant is estopped from asserting as error the inclusion of the 10-year term in the MPPC.
Appellant, in turn, counters the People’s estoppel claim with the argument that although she admitted “she had committed battery in association with a street gang and intended her behavior to promote the criminal conduct by a gang member,” she did not admit the fact which gives rise to the 10-year term, viz., that the battery offense was a violent felony. Appellant’s contention on this point is without merit.
We recognize, as appellant points out, that the court, in taking appellant’s plea, phrased the gang enhancement allegation without referring to the underlying offense. The court asked appellant, “With respect to the special allegation that you engaged in this behavior [the battery] in association with a criminal street gang with the . . . it was committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, and assist in any criminal conduct by a gang member, what is your plea?” The second amended petition, filed April 19, 2006, stated the gang enhancement allegation in similar language. However, early in the plea proceeding, the prosecutor stated the petition was being amended to include “a special allegation of 186.22(b)(1)(C),” and defense counsel acknowledged that appellant would plead no contest to the aggravated battery allegation “with a special allegation of a violation of Penal Code Section 186.22 (b)(1)(C) . . . .” Also earlier in the hearing, the probation officer stated that appellant’s total exposure, i.e., the MPPC for all charged offenses and the special allegation, was 16 years 4 months, a term that would necessarily include 10 years under section 186.22, subdivision (b)(1)(C), rather than either the five-year gang enhancement applicable where the underlying offense is a serious felony (§ 186.22, subd. (b)(1)(B)) or the enhancement of two, three or four years for other underlying felonies (§ 186.22, subd. (b)(1)(A)). On this record, the clear inference is that one of the terms of appellant’s plea agreement was that she admit the 10-year gang enhancement under section 186.22, subdivision (b)(1)(C), and it is equally clear appellant did so. However, as demonstrated above, the instant offense did not qualify as a violent felony and therefore the court, in imposing the enhancement, acted in excess of its statutory power.
It appears the term of 16 years 4 months indicated by the probation officer consisted of the following: five years for the robbery (dismissed pursuant to the plea agreement), representing the upper term for that offense; one year for the aggravated battery, representing one-third of the midterm for that offense; four months for the misdemeanor battery (dismissed pursuant to the plea agreement), representing one-third of the maximum term; and 10 years for the gang enhancement.
The question remains as to whether appellant is estopped from challenging the imposition of the 10-year enhancement. On this point, we find instructive People v. Ellis (1987) 195 Cal.App.3d 334, a case upon which the People place some reliance. In Ellis, the defendant, pursuant to a plea agreement, the terms of which included a prescribed maximum sentence and the dismissal of several charges, admitted that a prior conviction for federal bank robbery was a serious felony conviction for the purposes of a section 667, subdivision (a) prior serious felony enhancement although, as a matter of law, it was not. On appeal, appellant challenged the imposition of the agreed-upon enhancement. The appellate court held she was estopped from doing so, and affirmed the sentence.
The Ellis court acknowledged that “where fundamental jurisdiction was lacking, it could not be conferred by . . . estoppel,” but stated, “estoppel could supply jurisdiction for an act undertaken by the trial court merely in excess of its statutory power.” (People v. Ellis, supra, 195 Cal.App.3d at p. 343.) Whether an appellate court shall be allowed to uphold a sentence imposed in excess of a sentencing court’s statutory power depends, the Ellis court stated, on the balancing of competing policy considerations. On the one hand, “the law has a strong interest in insuring that a defendant is convicted and punished only if he has done an act proscribed by a criminal statute. . . . The law . . . has an interest in insuring that, even where a defendant has committed some criminal act, his criminal conduct matches up with a statute that proscribes the conduct. Only in this way can the judicial system insure that a defendant’s criminal conduct will receive the punishment the Legislature intended.” (Id. at p. 345.) Such considerations, of course, militate in favor of rejecting the People’s estoppel claim, since to impose a 10-year enhancement is not consistent with the applicable sentencing statute.
But “Just as the law has no interest in punishing defendants more severely than has been ordained by the Legislature, the law also has a strong interest in seeing to it that defendants do not unfairly manipulate the system to obtain punishment far less than that called for by the statutes applicable to their conduct. ‘To hold otherwise would permit the parties to trifle with the courts,’ [citation] thereby bringing disrespect to the judicial system.” (People v. Ellis, supra, 195 Cal.App.3d at p. 345.) In addition, “Concerns about an unfairly lenient sentence may arise not only where a bargained-for prison term is stricken but also where the entire bargain is set aside at a late date and the matter is then set for trial. In the latter event, the passage of time will often make it more difficult for the People to carry their burden of proving the criminal conduct at issue. Although delay does not invariably prejudice a party’s ability to prove its case [citation], delays frequently result in the death or disappearance of witnesses, fading memories, and the destruction of evidence.” (Id. at pp. 345-346, fn. 4.)
In Ellis, the court held that failing to impose the prior serious felony enhancement would allow the defendant to trifle with the courts because “ ‘[t]he record support[ed] the inference defendant deliberately persevered in his plea with knowledge of its irregularity in order to secure an imagined appellate advantage. That is known colloquially as “having it both ways,” a consummation not favored by the law.’ ” (People v. Ellis, supra, 195 Cal.App.3d at p. 347.)
Here, there is nothing in the record to suggest appellant admitted the 10-year gang enhancement with the knowledge that it was not statutorily authorized and with the intention of obtaining the dismissal of the robbery allegation under the plea agreement and then challenging the enhancement on appeal. Rather, it appears that appellant, the People and the court were operating under the same mistaken belief that appellant’s aggravated battery was a violent felony and therefore that appellant was not trifling with the court. Thus, it appears this is not a case in which the appellant was attempting to unfairly manipulate the system.
On the other hand, as the People point out, appellant has benefited from the plea agreement by obtaining the dismissal of the robbery allegation. This is a potentially significant benefit because a robbery adjudication could be used as a “strike” under California’s “three strikes” law in any future case in which appellant suffers a felony conviction. (§§ 667, subd. (d)(1) [juvenile robbery adjudication of serious felony under section 1192.7, subdivision (c) qualifies as a strike], 1170.12, subd. (b)(1) [same], 1192.7, subd. (c)(19) [robbery is a serious felony].) And if appellant is allowed to withdraw her plea in its entirety, because of the passage of time the People could be placed at a disadvantage in any effort to prove the allegations of the petition. Fortunately, a way exists to balance these various competing considerations. As we explain below, we can simply reduce the MPPC to nine years, consisting of the four-year term on the substantive offense and, on the gang enhancement, five years pursuant to section 186.22, subdivision (b)(1)(B).
There is no dispute that the record supports the conclusion that appellant personally inflicted great bodily injury in committing the instant aggravated battery and therefore that offense is a serious felony within the meaning of section 1192, subdivision (c), thus making appellant subject to the five-year gang enhancement under section 186.22, subdivision (b)(1)(B). (§ 1192.7, subd. (c)(8) [“serious felony” means, inter alia, “any felony in which the defendant personally inflicts great bodily injury on any person, other than any accomplice”], People v. Moore (1992) 10 Cal.App.4th 1868, 1871-1872 [“serious bodily injury” as required for aggravated battery (§ 243, subd. (d)) is essentially equivalent to “great bodily injury” under section 1192.7, subdivision (c)(8)].) Thus, with the correct gang enhancement, appellant’s MPPC would be a total of nine years. And, although less than the MPPC of 14 years computed by the court utilizing the 10-year gang enhancement, under the circumstances of the instant case, as the People note there is “little practical difference” between an MPPC computed on the basis of the five-year gang enhancement and one computed on the basis of the 10-year term. This is true, as the People also note, because of the following:
Generally, the DCRJJ must discharge a ward no later than the ward’s 21st birthday. However, if the committing offense is one listed in Welfare and Institutions Code section 707, subdivision (b) (section 707(b)), the DCRJJ may maintain control over the ward until he or she attains 25 years of age. (Welf. & Inst. Code, § 1769, subd. (b).) The People assert, and we assume without deciding, that appellant’s aggravated battery qualifies as a section 707(b) offense, and therefore appellant cannot be released before her 25th birthday. Appellant was born December 26, 1988, and would turn 25 on December 26, 2013, approximately seven and one-half years after the disposition hearing, which occurred July 5, 2006. Therefore, it appears likely that appellant would be discharged before she served the entire MPPC, regardless of whether the MPPC is 9 years or 14 years.
Aggravated battery in violation of section 243, subdivision (d) is not listed, as such, in section 707(b), and the People do not specify which of the 30 subparts of section 707(b) covers the instant offense. The most likely candidate appears to be the offense listed in section 707(b)(14): “[a]ssault by any means of force likely to produce great bodily injury.”
Under these circumstances, reducing the MPPC to nine years, consisting of four years on the instant offense and five years on the gang enhancement under section 186, subdivision (b)(1)(B), will avoid the undesirable result of creating a period of incarceration unauthorized by statute, and will ensure that appellant’s “criminal conduct matches up with a statute that proscribes the conduct.” (People v. Ellis, supra, 195 Cal.App.3d at p. 345.) At the same time, it will neither lead to a period of incarceration “far less than that called for by the statute[] applicable to [appellant’s] conduct” (People v. Ellis, supra, 195 Cal.App.3d at p. 345) nor put the People in the position of having to contend with the problems posed by the passage of time.
In People v. Velasquez (1999) 69 Cal.App.4th 503, the defendant had entered a plea bargain for probation and a possible prison term of no greater than three years for an offense which carried a punishment of two, four or six years. The sentencing court imposed the term of four years and stayed one year to comply with the three-year lid in the plea bargain. The reviewing court rejected the lower court’s “creativ[e]” but statutorily unauthorized three-year sentence, held the defendant was not estopped from challenging the sentence and reduced the term imposed to the statutorily authorized two years. (Id. at p. 505.) Similarly, in the instant case, we will reduce appellant’s MPPC to nine years, leaving intact the four-year term for the instant offense, but reducing to five years the gang enhancement, in accordance with section 186, subdivision (b)(1)(B).
Juvenile Court’s Exercise of Discretion in Setting the MPPC
Appellant contends the juvenile court erroneously failed to exercise its discretion under Welfare and Institutions Code section 731, subdivision (b) in setting the MPPC.
Except as otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
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 “[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, subdivision (b) (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 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 minor’s 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 was equal to the section 726 “maximum term of imprisonment” for the offenses upon which the court based the MPPC, given the court’s mistaken understanding of the term for the gang enhancement; as indicated above, the 14-year MPPC consisted of 10 years on the gang enhancement and, on the instant offense, four years, representing the upper term for that offense. There is also no dispute as to the principles summarized above, and that therefore the court had the discretion to declare a lesser MPPC. 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.
Appellant’s argument essentially consists of the assertion that “[t]he court appeared to be unaware of its discretion and merely followed the recommendation of the probation report . . . .” (Italics added.) However, 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, . . . a trial court’s reasons for ruling in a particular manner are not reviewable on appeal,” but “[a]n exception is made . . . when the court’s comments unambiguously disclose that it failed to pass on the merits of the issue [citation], or that its ruling embodies, or rested upon, a misunderstanding of the relevant law”] (italics added).) Appellant has not met that burden. She points to nothing in the record, and our review of the record has disclosed nothing, supporting her claim that the court was not aware of the scope of its discretion under section 730(b)(1).
Indeed, the record indicates the contrary. At the disposition hearing, the court noted the “available confinement time is 14 years” less credit for time served, and stated later in the hearing, “Based on circumstances of the offense as listed outlined in the report based on the prior efforts to rehabilitate the minor, the Court sets the maximum period of confinement at 14 years.” The court’s references to “available confinement time” and “maximum period of confinement” indicate the court understood it had two distinct determinations to make. And the court’s reference to the “circumstances of the offense” in the context of declaring the MPPC indicates 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 offense(s) of which the minor had been adjudicated. The court would have no occasion to consider “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, indicates the court was aware of the scope of its discretion. Appellant, in any event, has not demonstrated otherwise.
DISPOSITION
The maximum period of physical confinement is modified to nine years, consisting of four years on the aggravated battery adjudication and, on the gang enhancement, five years pursuant to section 186.22, subdivision (b)(1)(B). As modified, the judgment is affirmed.