Opinion
F061592 Super. Ct. No. 09JQ0088
09-29-2011
In re JOSHUA G., a Minor Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JOSHUA G., Defendant and Appellant.
Julia J. Spikes, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Levy, Acting P.J., Gomes, J., Poochigian, J.
APPEAL from a judgment of the Superior Court of Kings County. George L. Orndoff, Judge.
Julia J. Spikes, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, R. Todd Marshall and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
STATEMENT OF THE CASE
Background
On July 30, 2010, appellant, Joshua G., waived his constitutional rights and admitted an allegation in a petition filed pursuant to Welfare and Institutions Code section 602 that he feloniously committed robbery (Pen. Code, § 211, count one). In exchange for his admission, five other allegations, including burglary (Pen. Code, § 459, counts three and five) and assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), count two) were dismissed. Although count two was dismissed outright, the remaining dismissed allegations were subject to a waiver by appellant pursuant to People v. Harvey (1979) 25 Cal.3d 754. The parties stipulated to a factual basis for the plea.
Unless otherwise designated, all statutory references are to the Welfare and Institutions Code.
The factual basis for the plea was that on July 11, 2010, appellant was in a Kmart in Lemoore where he placed scented candles into his waistband and left the store without paying for the merchandise. He was observed by a security guard and a video monitor. When a security guard placed his hand on appellant and asked appellant to return to the store, appellant used force and struggled to get away. Appellant dropped some of the property as he left. The probation officer's report prepared for the disposition hearing stated that appellant assaulted the security guard with a knife in his attempt to flee.
At the conclusion of the disposition hearing, the juvenile court placed appellant on probation upon various terms and conditions including that he serve not less than 150 days in the county juvenile facility. Although appellant was about two weeks short of turning 14 years old when he committed robbery, he had prior adjudications for arson (Pen. Code, § 451, subd. (d)), truancy, running away, first degree burglary (Pen. Code, § 459), escape from his commitment, and violations of probation.
Disposition Hearing
On September 15, 2010, the probation department filed a petition alleging appellant had absconded from the juvenile facility. On September 23, 2010, appellant admitted the allegation. After considering less restrictive alternatives, the probation officer reviewed appellant's prior commitments and escapes and recommended appellant be committed to the California Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF).
DJF was formerly known as the California Youth Authority (CYA). DJF was renamed by statutory enactment in 2005. (Welf. & Inst. Code, §§ 202, subd. (e)(5), §§ 1000, 1703, subd. (c), & 1710, subd. (a).) The DJF is part of the Division of Juvenile Justice. (Gov. Code, §§ 12838, 12838.3, 12838.5, 12838.13.) DJF is referenced in statutes, such as Welfare and Institutions Code sections 731 and 733, that formerly referred to CYA. (In re N.D. (2008) 167 Cal.App.4th 885, 890, fn. 2.) In this opinion, we will use the name DJF uniformly, even when referring to older cases and statutes.
On November 30, 2010, the juvenile court listened to the arguments of appellant's counsel and father, who asked that appellant not be committed to DJF. The court noted appellant had good grades and was bright. The court explained they had tried everything "in our bag of tricks" to straighten out appellant and redirect his thinking. Appellant had already been confined 351 days in local facilities. The court stated that nothing had worked. Appellant committed arson in a public restroom in 2007, ran away in 2008, committed a first degree burglary in 2009, and spent time in boot camp. Appellant escaped from boot camp while on car wash detail. Appellant had a violation of probation in 2010, left home without permission, and tried to run away from the police.
The court further noted that appellant had another violation of probation in 2010, where he videotaped himself drinking alcohol and posted the video on YouTube. In July 2010, appellant committed second degree burglary, got sent to boot camp on a five-month program, and escaped from boot camp. The court said there was no joy in sending a 14-year-old to [DJF] and no one wanted that outcome. The court observed, however, "sometimes there's no choice left."
The court found appellant violated his probation and that he would benefit from commitment to DJF. The court found appellant's offense came within the provisions of section 707, subdivision (b). The court stated that "in accordance with [s]ection 731 of the Welfare and Institutions Code" the maximum confinement time is set at six years for a felony first degree burglary. The court aggregated this term with consecutive terms of confinement for prior adjudications as follows: four months for misdemeanor escape from a commitment (Pen. Code, § 871, subd. (a)) and one year for robbery (Pen. Code, § 211). The judicial council JV-732 form committing appellant to DJF did not have a check mark in the box at line 8b for the following finding: "The court has considered the individual facts and circumstances of the case in determining the maximum period of confinement."
Appellant contends the record is silent as to whether the juvenile court was aware it could impose a commitment less than the maximum period of physical confinement (MPPC) and that the case must be remanded for the juvenile court to exercise its discretion to impose a term less than the MPPC. As evidence of this contention, appellant argues the juvenile court failed to check box 8b on the commitment form to DJF. We reject appellant's argument and affirm the orders of the juvenile court.
DISCUSSION
The issue presented in the instant action requires analysis of Welfare and Institutions Code sections 726 and 731. Section 726, subdivision (c) provides, in pertinent part, "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." This subdivision further provides: the "maximum term of imprisonment," as that phrase is used in sections 726 and 731, applies to felonies and "means the longest of the three periods set forth in paragraph (2) of subdivision (a) of Section 1170 of the Penal Code ...." (Welf. & Inst. Code, § 726, subd. (c).)
Where the juvenile court elects to aggregate the period of physical confinement based on multiple counts and/or petitions, "'the maximum term of imprisonment' shall be the aggregate term of imprisonment specified in subdivision (a) of Section 1170 of the Penal Code ...." (Welf. & Inst. Code, § 726, subd. (c).) "If the charged offense is a misdemeanor or a felony not included within the scope of Section 1170 of the Penal Code, the 'maximum term of imprisonment' is the longest term of imprisonment prescribed by law." (Welf. & Inst. Code, § 726, subd. (c).) 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 DJF. Section 731 was amended, January 1, 2004. Taken together, sections 726 and 731 require the juvenile court to make two distinct determinations when committing a minor to the DJF. Section 726 directs the juvenile court to determine the maximum term of imprisonment. (In re Carlos E. (2005) 127 Cal.App.4th 1529, 1538 (Carlos E.).) Section 731 requires, in addition, that the court set a maximum term of physical confinement in DJF. (Carlos E., supra, 127 Cal.App.4th at p. 1538.) Section 731 further requires that in making the latter determination, the court exercise its discretion, based upon the facts and circumstances of the case. This maximum may not be more than the maximum term of imprisonment under section 726, but it may be less. (Carlos E., supra, 127 Cal.App.4th at p. 1542.) This is 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. (Id. at pp. 1534-1537.)
The parties do not dispute the foregoing principles. They also do not dispute that: (1) the MPPC declared by the juvenile court—seven years four months—is equal to the section 726 "maximum term of imprisonment" for the offenses upon which the court based the MPPC, and (2) the juvenile court did not state on the record that it recognized it had the discretion under section 731 to set an MPPC at less than the maximum term of imprisonment, based on the facts and circumstances placing appellant before the court. The record is silent as to whether the court considered facts and circumstances about appellant's case when it set his MPPC or whether the court considered a shorter MPPC.
The question before us is whether, on this record, remand is required to allow the court to exercise its section 731 discretion. As our Supreme Court has held with regard to a juvenile court's consideration of the facts and circumstances surrounding an offense by a juvenile, the judgment of the juvenile court is presumed correct and all intendments and presumptions are indulged to support it on appeal as to matters in which the record is silent. Error must be affirmatively shown. Further, section 731 does not require that the juvenile court recite the facts or circumstances upon which it relies or that it set forth their relative weights. (In re Julian R. (2009) 47 Cal.4th 487, 499 (Julian R.).)
We agree with appellant that the juvenile court failed to check box 8b in the JV-732 commitment order. However, the question is whether this is conclusive evidence that the court did not understand its discretion in setting the length of appellant's commitment to DJF. We find that it is not. The juvenile court carefully set forth its reasons for committing appellant to DJF. The court's findings detailed appellant's entire juvenile record and his failure to reform in local programs. We find that the court's reasoning supports the juvenile court's order committing appellant to DJF, as well as its order setting the maximum term of confinement. Although the court did not use the talismanic language that it "considered the individual facts and circumstances of the case," to require such a recitation would place form over substance in a case where the court already performed the functional equivalent of making these findings. The court's statement of reasons was tantamount to a statement of how it considered the relevant factors in appellant's case in choosing the MPPC.
Although it would be better practice for a juvenile court to make the notation on line 8b of form JV-732, concerning its consideration of the facts and circumstances of the case, a juvenile court's failure to do so in the absence of oral findings simply makes such a case a silent record case. Under Julian R., we do not presume judicial ignorance of the law from a silent record. (Julian R., supra, 47 Cal.4th at pp. 498-499.)
Appellant also argues that the trial court misunderstood its judicial discretion when it stated, during the disposition hearing, that it had no option but to send appellant to DJF. We believe appellant is attributing more to this statement than the court meant. Read in context, the court was only stating that local commitment options had been tried unsuccessfully leaving a commitment to DJF as the one remaining option.
Even if we were to find that the juvenile court's findings applied only to its order committing appellant to DJF and not to setting the MPPC, we are left with a silent record case subject to the holding in Julian R. We decline to make any negative inference concerning the juvenile court's understanding of its discretion under section 731 merely because the box adjacent to line 8b of form JV-732 was not marked. Also, we do not believe that what appears to be an oversight by the juvenile court in completing form JV-732 takes this case outside the purview of other silent record cases.
Finally, we note that the disposition in the instant matter occurred in November 2010, several years after sections 726 and 731 were amended. This court decided In re Carlos E., supra, 127 Cal.App.4th 1529, in 2005, more than six years ago. At the time of the instant disposition hearing, the rule that the court was required to base its determination of the MPPC on the facts and circumstances that brought appellant before the juvenile court was well established and not subject to any controversy. In accordance with Julian R., we presume the juvenile court in the instant case understood the scope of its discretion under section 731 and exercised that discretion.
DISPOSITION
The orders and findings of the juvenile court are affirmed.