Opinion
B294733
03-18-2020
In re MELVIN W., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. MELVIN W., Defendant and Appellant.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Michael R. Johnsen and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. TJ21490) APPEAL from an order of the Superior Court of Los Angeles County, Melissa N. Widdifield, Judge. Affirmed; matter remanded with directions. Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Michael R. Johnsen and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
The juvenile court committed minor and appellant Melvin W. to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF), after sustaining a petition that alleged robbery, assault by force likely to produce great bodily injury, and possession of metal knuckles. The juvenile court was later informed that the most recent charge of possession of metal knuckles prevented commitment to DJF. Exercising its discretion under Welfare and Institutions Code section 782, the juvenile court dismissed the charge and again committed Melvin W. to DJF.
Effective July 1, 2005, the correctional agency formerly known as the California Youth Authority (CYA) was renamed as the California Department of Corrections, Division of Juvenile Facilities (DJF). The Division of Juvenile Facilities is part of the Division of Juvenile Justice (DJJ). (Pen. Code, § 6001; In re Jose T. (2010) 191 Cal.App.4th 1142, 1145, fn. 1; In re M.B. (2009) 174 Cal.App.4th 1472, 1474, fn. 2.) Cases use DJF and DJJ interchangeably. (In re J.C. (2017) 13 Cal.App.5th 1201, 1204, fn. 2.) Statutes that formerly referred to CYA, including section 731 and 733, now refer to DJF. For consistency, we use DJF.
All further undesignated statutory references are to the Welfare and Institutions Code.
On appeal, Melvin W. claims the dismissal of the disqualifying charge was error. He also claims the juvenile court improperly modified his maximum term of adult imprisonment and maximum term of confinement in DJF from the original disposition. We reject both claims and affirm the commitment to DJF. But we remand the matter for the juvenile court to: (1) record in the minutes its reasons for dismissing the sustained charge that prevented DJF commitment, (2) set a maximum term of imprisonment consistent with this opinion, (3) exercise its discretion in setting a maximum term of confinement in DJF, (4) award the correct predisposition credits, (5) strike any discretionary probation terms, but allow any prior restitution orders under section 730.6 to remain in full force and effect, if appropriate, and (6) prepare an amended commitment order reflecting any changes and forward a certified copy to DJF.
FACTS AND PROCEDURE
I. Prior sustained petitions
Between 2014 and 2017, the juvenile court sustained four petitions under section 602 against Melvin W. For each petition, the juvenile court declared wardship.
On June 20, 2014, Melvin W. admitted one count of second degree robbery (Pen. Code, § 211) from a petition filed on May 12, 2014. The juvenile court placed Melvin W. home on probation.
On February 24, 2015, after a contested hearing on a petition filed on December 11, 2014, the juvenile court found true one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and the gang enhancement (Pen. Code, § 186.22, subd. (b)(1)(C)). The juvenile court placed Melvin W. in camp for seven to nine months. It further awarded 46 days of predisposition credits.
As we discuss, the juvenile court applied the incorrect gang enhancement to the charge of assault with a deadly weapon.
On January 15, 2016, after a contested hearing on a petition filed on December 23, 2015, the juvenile court found true one count of driving or taking a vehicle without the owner's consent (Veh. Code, § 10851, subd. (a).) It again placed Melvin W. in camp for five to seven months.
On April 25, 2017, the juvenile court found true one count of possession of cocaine base for sale (Health & Safety Code, § 11351.5) from an amended petition filed on April 11, 2017. The juvenile court placed Melvin W. in camp for seven to nine months. II. February 27, 2018 and March 6, 2018 incidents
A. Facts
On February 27, 2018, at 11:55 a.m., Israel A. went to a liquor store on Compton Avenue in Los Angeles. He had $500, which he won from a lottery ticket. As Israel A. exited the store, three men approached him. One man asked him for money. Israel A. responded that he did not have any money. A second person grabbed Israel A. from behind and choked him until he lost consciousness. When Israel A. woke up, he was on the ground and his face hurt. He lost two teeth and one tooth was loosened. He urinated on himself when he lost consciousness. His money was missing. The three men were gone.
To protect the personal privacy interest of the victim, we refer to him by first name and last initial. (Cal. Rules of Court, rule 8.90, subd. (b)(4).)
Los Angeles Police Officer Gustavo Reyes watched a video recorded from a surveillance camera which captured the incident. He identified Melvin W. as one of the persons involved. Over two and a half to three years, Reyes had fifteen to twenty encounters with Melvin W. while patrolling the Nickerson Gardens public housing community.
On March 6, 2018, Los Angeles Police Officer Heriberto Crisantos Garcia arrested Melvin W. He recovered brass knuckles from Melvin W.'s pocket.
B. Procedure
On March 8, 2018, the District Attorney filed a petition against Melvin W. Based on the February 27, 2018 incident against Israel A., this petition alleged second degree robbery (Pen. Code, § 211; count 1) and assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4); count 2). The petition also alleged that on March 6, 2018, Melvin W. unlawfully possessed metal knuckles (Pen. Code, § 21810; count 3). On August 1, 2018, this petition was amended to add allegations that Melvin W. personally inflicted great bodily injury under Penal Code section 12022.7, subdivision (a), as to counts 1 and 2.
After a contested hearing, the juvenile court found all three counts true, but dismissed the personal infliction of great bodily injury allegations.
On August 10, 2018, the juvenile court committed Melvin W. to DJF. It determined that five years eight months was the maximum time that could be imposed on an adult convicted of the offenses sustained by Melvin W. The juvenile court further determined that Melvin W. could not be confined to DJF longer than four years nine months. It awarded 154 days of predisposition credits.
The juvenile court was later informed that Melvin W. was ineligible for commitment to DJF. The most recent charge for possession of metal knuckles in count 3 was not a qualifying offense.
On December 19, 2018, the juvenile court dismissed count 3. On December 20, 2018, it again committed Melvin W. to DJF. It determined 15 years eight months was the maximum time that could be imposed on an adult convicted of the offenses sustained by Melvin W. After considering the facts and circumstances of the case, the juvenile court set the maximum period of confinement in DJF at five years four months. It awarded 297 days of predisposition credits.
DISCUSSION
I. Discretion to dismiss a sustained charge under section 782
The parties agree that the sustained charge for possessing metal knuckles, in violation of Penal Code section 21810, rendered Melvin W. ineligible for commitment to DJF. A violation of Penal Code section 21810 does not qualify as an offense for which a juvenile court may commit a minor to DJF because it is not described in section 707, subdivision (b) or Penal Code section 290.008, subdivision (c). (§ 733, subd. (c); In re D.B. (2014) 58 Cal.4th 941, 948.) The other two sustained charges—second degree robbery (Pen. Code, § 211; count 1) and assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4); count 2)—are described in section 707, subdivision (b). But the violation of Penal Code section 21810 was the controlling charge because it was the most recent sustained offense with its commission date of March 6, 2018. (In re D.B., at p. 948.) The other two sustained charges had an offense date of February 27, 2018.
Melvin W. argues that the juvenile court had no authority under section 782 to dismiss this sustained charge after disposition to make him eligible for commitment to DJF.
The Supreme Court in In re Greg F. (2012) 55 Cal.4th 393, 402 held that the juvenile court retains discretion to commit a minor to DJF by using its authority under section 782 to dismiss the most recent sustained charge or petition which rendered him or her ineligible for such a commitment. Section 782 provides a discretionary tool for the juvenile court "to control the operative petition for purposes of section [733, subdivision (c)] and, consequently, expand its dispositional options." (In re Greg F., at p. 408.) Section 733 does not override the juvenile court's discretion to dismiss prior petitions under section 782, even if already adjudicated.
Under section 782, a juvenile court may "dismiss the petition or set aside the findings and dismiss the petition, if [it] finds that the interests of justice and the welfare of the person who is the subject of the petition require that dismissal, or if it finds that he or she is not in need of treatment or rehabilitation."
Melvin W. contends that the power to dismiss under section 782 exists at the disposition stage but not later. To support his contention, he cites In re A.O. (2017) 18 Cal.App.5th 390, which reversed the juvenile court's dismissal of a DJF-ineligible charge nearly three years after the disposition.
But in In re A.O., the reviewing court did not prohibit dismissals under section 782 after the petition has been sustained. It acknowledged such authority to dismiss was established by In re Greg F. (In re A.O., supra, 18 Cal.App.5th at p. 395; In re Greg F., supra, 55 Cal.4th at p. 413.) Moreover, the juvenile court in In re A.O. never purported to invoke section 782. (In re A.O., at p. 394.) The reviewing court assumed a juvenile court could have post-dispositional authority to dismiss. But it could not conclude that authority existed based on the record below. (Id. at p. 396.) The minor admitted the allegations of a petition which was not part of the record on appeal. Nothing showed whether he made the admissions pursuant to a plea agreement or whether any representations were made about possible placements. The record also did not contain the facts of the underlying offense that qualified him for the commitment to DJF. (Ibid.)
The court in In re A.O. noted the Supreme Court cautioned in dicta that post-disposition dismissals may raise concerns when they are used to solely punish the minor or undermine plea agreements. (In re Greg F., supra, 55 Cal.4th at p. 415.) In re Greg F. did not express an opinion on whether post-dispositional dismissals could ever be appropriate. (Ibid.) The concerns raised by In re Greg. F. are not implicated here.
Additionally, the reviewing court in In re A.O. could not determine whether the juvenile court's dismissal of the disqualifying offense was a proper exercise of discretion. (In re A.O., supra, 18 Cal.App.5th at pp. 396-397.) The "sparse record" merely showed the juvenile court dismissed the charge to make the minor "DJJ eligible" because he was "violent." (Id. at p. 397.)
By contrast, the juvenile court here properly exercised its discretion under section 782 to dismiss the DJF-ineligible charge in the interests of justice and for the welfare of Melvin W. (In re Greg F., supra, 55 Cal.4th at p. 417.) The juvenile court recognized the extraordinary power it had in dismissing the possession of metal knuckles charge to render Melvin W. eligible for DJF. It decided that the extraordinary circumstances presented by Melvin W.'s history and the other sustained charges justified its use of this extraordinary power.
On the date of the original disposition, the juvenile court made findings to support its decision to send Melvin W. to DJF. These findings included the circumstances of the offenses, Melvin W.'s prior history, and the services available at DJF. The court reiterated these findings on the date of dismissal of the disqualifying charge and recommitment to DJF.
Specifically, the juvenile court considered the severity of the offenses sustained in the most recent petition. (In re Greg F., supra, 55 Cal.4th at p. 417.) The victim suffered. Melvin W. and his cohorts choked the victim until he lost consciousness and knocked out his teeth. They took his money and left him in the street. The victim could not afford dental work. He lost wages from missing work due to the debilitating pain.
The juvenile court also found that DJF was the only option for Melvin W. It noted that Melvin W. failed to reform after three placements in camp. It also highlighted the opportunities for rehabilitation offered by DJF, including job training and educational and psychosocial services. The court expressed that these opportunities would benefit Melvin W., in contrast to the limited resources available at camp.
Based on these considerations, the juvenile court found that the public's need for safety and Melvin W.'s need for rehabilitation were best served by dismissing the charge and committing him to DJF. We conclude the juvenile court did not abuse its discretion. (In re Greg F., supra, 55 Cal.4th at p. 419.)
Although the juvenile court's reasoning for its exercise of discretion is reflected in the reporter's transcript, it did not include a statement of reasons in its minutes, as required under California Rules of Court, rule 5.790, subdivision (a)(2)(A). Accordingly, the matter is remanded for the juvenile court to record its reasons in the minutes. (See People v. Bonnetta (2009) 46 Cal.4th 143, 153.) II. Modifications of the maximum term of adult imprisonment and the maximum confinement term in DJF
A. Additional facts
On August 10, 2018, the juvenile court set five years eight months as the maximum term of imprisonment that could be imposed on an adult convicted of the offenses sustained by Melvin W. This sentence was calculated from the sustained offenses in the amended petition filed on August 1, 2018, as follows: five years for the violation of Penal Code section 211, plus eight months, which was one-third of the middle term of two years for the violation of Penal Code section 21810. Pursuant to Penal Code section 654, subdivision (a), the juvenile court stayed the term for a violation of Penal Code section 245, subdivision (a)(4). The juvenile court ordered the maximum confinement time in DJF as four years nine months. It determined this term would confine Melvin W. until his 23rd birthday.
The maximum term of imprisonment that could be imposed on an adult convicted of the same offenses (§ 726, subd. (d)(1)) is also referred to as the maximum term of imprisonment, the maximum period of imprisonment, and the theoretical or potential maximum term of confinement. For simplicity, we refer to it as maximum term of adult imprisonment.
The juvenile court did not select a term from the triad, impose it, and then stay it, as required under section 654, subdivision (a). (People v. Alford (2010) 180 Cal.App.4th 1463, 1472.)
On December 19, 2018, the juvenile court held the second disposition hearing where it dismissed the DJF-ineligible offense. Following the dismissal, the juvenile court attempted to set the maximum term of adult imprisonment at five years eight months. But the prosecutor requested the juvenile court to consider, as a part of the maximum term of adult imprisonment, Melvin W.'s previously sustained petitions for which he was placed on probation. The juvenile court continued the disposition because it had not yet decided whether to consider these prior petitions.
On December 20, 2018, the juvenile court set 15 years eight months as the maximum term of adult imprisonment. The juvenile court set this maximum term by aggregating a DJF-eligible offense and an enhancement from a prior petition with the sustained robbery and assault charges from the August 1, 2018 amended petition. Upon "considering the facts and circumstances of this case," the juvenile court determined that five years four months was the maximum term of confinement in DJF, under section 731, subdivision (c).
Section 607 permitted the juvenile court to retain jurisdiction over Melvin W. until his 25th birthday because the controlling offense, robbery, was listed in section 707, subdivision (b). (§ 607, subds. (b), (f), (g).) The five-year four-month period would terminate prior to Melvin W.'s 25th birthday on May 11, 2025.
The December 20, 2018 minute order and order of commitment to DJF conflict with the oral pronouncement by the juvenile court. They indicate 16 years as the maximum term of adult imprisonment. From the August 1, 2018 amended petition, the court selected five years for the violation of Penal Code section 211. From the petition filed on December 11, 2014, the court added one year, which was one-third of the middle term of three years for a violation of Penal Code section 245, subdivision (a)(1), plus 10 years for an enhancement under section 186.22, subdivision (b)(1)(C).
The minute order and commitment are consistent with the juvenile court's oral pronouncement of the maximum term of confinement in DJF, under section 731, subdivision (c), as five years four months.
The juvenile court denied Melvin W.'s request to calculate his maximum term of adult imprisonment based on only the most recent petition and not aggregate any prior petition. It also denied Melvin W.'s request to set a lower maximum term of confinement in DJF, pursuant to section 731, subdivision (c).
B. Authority to modify disposition under section 775
Under section 726, subdivision (d)(1), when the juvenile court removes a minor from the physical custody of his or her parent or guardian as result of an order of wardship, it must specify the maximum term of confinement, which cannot exceed the maximum term of imprisonment to which an adult convicted of the offense would be subjected. (In re Edward B. (2017) 10 Cal.App.5th 1228, 1238; In re David H. (2003) 106 Cal.App.4th 1131, 1133.) Section 726, subdivision (d)(1) sets the "outermost limit" of confinement at the maximum term that could be imposed on an adult. (In re H.D. (2009) 174 Cal.App.4th 768, 777.)
Section 726, subdivision (d)(3) also permits the juvenile court to aggregate terms of "multiple counts or multiple petitions, including previously sustained petitions" in calculating the maximum term of adult imprisonment. (In re H.D., supra, 174 Cal.App.4th at pp. 777-778; In re David H., supra, 106 Cal.App.4th at p. 1133.) Aggregation is not mandatory or automatic, but rests within the sound discretion of the juvenile court. (In re Adrian R. (2000) 85 Cal.App.4th 448, 454; In re Alex N. (2005) 132 Cal.App.4th 18, 24-25 & fn. 2.)
When aggregating multiple counts from previously sustained petitions, the maximum confinement time is calculated by adding the upper term for the principal offense, plus one-third of the middle term for each of the remaining subordinate felonies. (§ 726, subd. (d); Pen. Code, § 1170.1, subd. (a).)
For DJF commitments, section 731, subdivision (c) permits the juvenile court to set the maximum term of confinement in DJF at less than the maximum term of adult imprisonment under section 726, subdivision (d)(1). (In re H.D., supra, 174 Cal.App.4th at p. 778.) It allows the juvenile court to set a maximum term based on "the facts and circumstances of the matter or matters that brought or continued the [minor under its jurisdiction]" and as deemed appropriate to achieve rehabilitation. (In re Julian R. (2009) 47 Cal.4th 487, 495 (italics omitted); In re Geneva C. (2006) 141 Cal.App.4th 754, 757-758.) Similar to section 726, subdivision (d)(1), section 731, subdivision (c) also restricts the juvenile court from committing a minor to DJF for a period that exceeds the maximum term of imprisonment that could be imposed upon an adult convicted of the same offense or offenses.
Thus, the juvenile court has discretion to set different terms under section 726, subdivision (d)(1) and section 731, subdivision (d). (In re Alex N. (2005) 132 Cal.App.4th 18, 26.) A reviewing court presumes that the juvenile court "exercised its discretion in setting a maximum period of physical confinement that was measured against both the ceiling set by the maximum adult prison term and a possibly lower ceiling set by the relevant 'facts and circumstances' (§ 731, subd. (c))." (In re Julian R., supra, 47 Cal.4th at p. 499.)
The court's discretion to set a term of confinement at less than the maximum is not limited to a term in the sentencing triad for the offense, as set by Penal Code section 1170, subdivision (a)(3). (In re H.D., supra, 174 Cal.App.4th at p. 776; In re A.G. (2011) 193 Cal.App.4th 791, 804.)
For the commitment order to DJF, the juvenile court used Judicial Council form JV-732. On the form, the court indicated its acknowledgement that it " 'considered the individual facts and circumstances of the case' " under section 731, subdivision (c) to determine the maximum term of confinement in DJF. (In re Julian R., supra, 47 Cal.4th at pp. 498-499, fn. 4.) Nothing in the record rebuts the presumption that the juvenile court properly exercised its discretion. Melvin W. does not suggest otherwise.
Melvin W. does not argue that the juvenile court abused its discretion in determining his maximum term of confinement in DJF, under section 731, subdivision (c). Nor does Melvin W. dispute the juvenile court's authority to aggregate petitions in determining his maximum term of adult imprisonment under section 726, subdivision (d). He also does not argue the juvenile court abused its discretion in doing so. Instead, Melvin W. contends the juvenile court had no authority to modify either maximum term after the August 10, 2018 disposition hearing.
We disagree. Section 775 provides that any order of the juvenile court may be modified " 'as the judge deems meet and proper.' " (In re Kazuo G. (1994) 22 Cal.App.4th 1, 6.) The statute is unqualified and places no restrictions on the court's power to modify a previous order. "The statutory scheme governing juvenile delinquency is designed to give the court 'maximum flexibility to craft suitable orders aimed at rehabilitating the particular ward before it.' " (In re Greg F., supra, 55 Cal.4th at p. 411.) Allowing juvenile courts to modify orders under section 775 is consistent with this principle.
The juvenile court's power under section 775 to modify or set aside "any" order means just that. Accordingly, we conclude the juvenile court had the authority to modify the maximum term of confinement in DJF under section 731, subdivision (c), and the maximum term of adult imprisonment under section 726, subdivision (d)(1).
Melvin W. cites no authority that limits the scope of section 775. He only references its notice requirement. Section 776 is the only section that appears to directly restrict the court's authority to modify a disposition order it previously made. Section 776 provides that "[n]o order changing, modifying, or setting aside a previous order of the juvenile court shall be made . . . unless prior notice of the application" has been given to the probation department, the prosecutor, and the minor's attorney.
At the disposition hearing on December 19, 2018, the prosecutor raised the issue of aggregating terms from prior petitions. The juvenile court continued the disposition hearing to the next day. In doing so, the juvenile court announced it was considering the aggregation of terms from prior petitions. On the next day, the juvenile court and the parties had an unreported discussion of the maximum term of adult imprisonment and the maximum term of confinement in DJF. After the discussion, defense counsel stated his objections to both terms set by the court and requested lower terms.
The juvenile court stated, "I'm not comfortable going forward with disposition. We're going to have to do it tomorrow because I don't know the correct calculations to start with, nor do I know if I want to make that five years less, nor do I—I don't know whether the PV's to [sic] apply and if they do that's a whole different kettle of fish. Can you add those up for tomorrow just in case they do apply. . . . And then I'll make a determination whether I want to go less than the five years or not . . . or 25—you know, it would be seven years. . . . I have no—I don't know the answer to these things right now so I don't want to just, you know—it's not in Melvin's best interest to do it not knowing. I'm not inclined to max him out, if that's what you're thinking, okay."
The March 8, 2018 petition and the August 1, 2018 amended petition indicated that the District Attorney sought to have Melvin W. "confined on all sustained counts of [the] petition, other petitions currently before the court, and all previously sustained petitions with detention time remaining." These petitions provided sufficient notice to Melvin W. of the prosecutor's intent to aggregate previous sustained petitions. (In re Michael B. (1980) 28 Cal.3d 548, 554; In re Steven O. (1991) 229 Cal.App.3d 46, 55.) Moreover, as we discuss below, it is necessary to remand the matter due to an error in calculating the maximum term of adult imprisonment under section 726, subdivision (d)(1). Melvin W. will have the opportunity at the new disposition hearing to address both maximum terms.
C. Imposition of the incorrect term for the gang enhancement
The parties agree that in calculating the maximum term of adult imprisonment, the juvenile court used the incorrect term for the gang enhancement from the December 11, 2014 petition, which was aggregated with the underlying petition. This gang enhancement was applied to the charge of assault with a deadly weapon. It adds 10 years when the underlying offense is a violent felony. (Pen. Code, §§ 186.22, subd. (b)(1)(C), 667, subd. (c).) But assault with a deadly weapon is a serious felony (Pen. Code, § 1192.7, subd. (c)(23)), not a violent felony. Thus, in calculating the maximum term of adult imprisonment, the juvenile court should not have utilized the 10-year gang enhancement. Instead, it should have utilized the five-year enhancement under Penal Code section 186.22, subdivision (b)(1)(B). (People v. Sinclair (2008) 166 Cal.App.4th 848, 856.)
The juvenile court also incorrectly calculated the subordinate term for the maximum term of adult imprisonment. "If the court elects to aggregate the period of physical confinement on multiple counts or multiple petitions . . . the 'maximum term of imprisonment' shall be the aggregate term of imprisonment specified in [Penal Code section 1170.1, subdivision (a)]." (§ 726, subd. (d)(3).) Under Penal Code section 1170.1, subdivision (a), the aggregate term of imprisonment for two or more felony convictions is the sum of the principal term and the subordinate term or terms. "The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses." (Pen. Code, § 1170.1, subd. (a).)
Here, the juvenile court designated five years for the 2018 robbery as the principal term. It then added one year, which was one-third of the middle term for the assault with the deadly weapon. But it incorrectly added the full-term of 10 years for the gang enhancement. It did not calculate the subordinate term to include one-third of the term for the gang enhancement. Because the juvenile court imposed the full term for the gang enhancement, the subordinate term was further incorrectly calculated.
If the juvenile court intended to impose the full term for the gang enhancement, it would have been required to designate the assault with the deadly weapon as the principal term. "The principal term shall consist of the greatest term of imprisonment imposed by the court . . . including any term imposed for applicable specific enhancements." (Pen. Code, § 1170.1, subd. (a); People v. Felix (2000) 22 Cal.4th 651, 655.) The principal term is designated as "the longest term actually imposed by the court, which is not necessarily the longest term available under the applicable sentencing triads." (People v. Miller (2006) 145 Cal.App.4th 206, 215-216.) The court would have been required to select a term from the triad to which the full term for the gang enhancement would have been added. The lesser term for robbery would have become the subordinate term with one-third of its middle term added to the principal term.
The incorrect calculation of the maximum term of adult imprisonment under section 726, subdivision (d)(1) could also affect the maximum term of confinement in DJF. As we have discussed, under section 731, subdivision (c), the juvenile court may determine the maximum term of confinement in DJF to be less than the maximum term of adult imprisonment under section 726, subdivision (d)(1). The determination under section 731, subdivision (c) may include consideration of the maximum term of adult imprisonment. (In re Julian R., supra, 47 Cal.4th at p. 499.)
Remand is necessary for the juvenile court to use the correct term for the gang enhancement for its determination of the maximum term of adult imprisonment and the discretionary maximum term under section 731, subdivision (c). The Attorney General has no objection. We express no opinion as to the appropriate determination of the maximum terms under sections 726, subdivision (d)(1) and 731, subdivision (c).
Remand is further appropriate because of the discrepancy between the juvenile court's oral pronouncement of the maximum term of adult imprisonment and the minute order and the order of commitment to DJF. (In re H.D., supra, 174 Cal.App.4th at p. 779.) Upon imposing a new maximum term, the juvenile court must prepare an amended minute order and an amended commitment order reflecting the changes.
III. Remand to recalculate predisposition custody credits
In calculating the maximum terms, a minor is entitled to credit for any actual time spent in physical confinement on the allegations. (In re Lozano (2008) 163 Cal.App.4th 1076, 1079; In re Emilio C. (2004) 116 Cal.App.4th 1058, 1067.) If the juvenile court elects to aggregate petitions in calculating a minor's maximum term, it must award predisposition custody credit relative to the multiple petitions. (In re A.M. (2014) 225 Cal.App.4th 1075, 1085-1086.)
Both parties agree that the record is unclear about the correct predisposition credits Melvin W. should receive. At the disposition hearing on August 10, 2018, the juvenile court awarded 154 days of predisposition custody credit. At the second disposition hearing on December 20, 2018, the juvenile court increased the credits to 297 days. However, if Melvin W. remained in custody from August 10, 2018 until December 20, 2018, he would have 133 additional days of credits. The total would be 287 days, not 297 days. Alternatively, if calculated from Melvin W.'s detention date of March 6, 2018 to December 20, 2018, the total would be 290 days. It further appears the juvenile court's calculation did not include 46 days of predisposition credits on the December 11, 2014 petition. Accordingly, upon remand, the juvenile court must award the correct predisposition credits. IV. Probation terms
The juvenile court imposed two probation conditions designated as 1A and 3 on the minute order. These conditions involved obeying terms and conditions of probation and rules of the probation officer. Melvin W. argues that these probation conditions should be stricken because the juvenile court committed him to DJF. The Attorney General agrees.
A juvenile court lacks the authority to impose discretionary probation conditions once it orders a minor committed to DJF. (In re Edward C. (2014) 223 Cal.App.4th 813, 829; In re Travis J. (2013) 222 Cal.App.4th 187, 202.) The juvenile court should not have imposed conditions 1A and 3. Accordingly, they must be stricken.
The minute order also reflects the imposition of condition 42, which required prior orders for restitution to remain in full force and effect. Melvin W.'s chief complaint about condition 42 is that the juvenile court did not orally order it at the disposition hearing. He does not explicitly argue that it was improperly imposed because it was a discretionary condition.
The juvenile court previously ordered restitution, according to prior minute orders from June 20, 2014, February 24, 2015, and August 10, 2018. However, the clerk's transcript does not reflect that any specific amounts were ordered.
Section 730.6 ensures that a restitution order "is enforceable 'as a civil judgment' (subd. (i)) and continues to be enforceable even after the minor is no longer on probation, until the obligation is fully satisfied. ([§ 730.6], subds. (i), (l), (r).)" (In re Timothy N. (2013) 216 Cal.App.4th 725, 735.) A victim may enforce the restitution order "in the same manner as is provided for the enforcement of any other money judgment." (Pen. Code, § 1214, subd. (b); see also § 730.6, subd. (r).) Therefore, it is of little practical consequence that the juvenile court did not orally impose condition 42. Melvin W. would still be obligated to satisfy the prior restitution orders.
Moreover, if the prior restitution orders were made under section 730.6, imposition of condition 42 would have been proper. Section 730.6 codifies the juvenile court's constitutional duty to order restitution for all economic losses which result from a minor's commission of a crime. Restitution is thus constitutionally and statutorily mandated. (Cal. Const., art. I, § 28, subd. (b); section 730.6.) Under these authorities, a restitution order is not discretionary. The juvenile court would have had the authority to preserve the prior orders for restitution in full force and effect, even if it lacked the authority to impose other discretionary probation conditions.
In contrast to the mandatory imposition of a restitution order under section 730.6, section 730 permits restitution to be imposed as a condition of probation. (In re T.C. (2009) 173 Cal.App.4th 837, 845.) Under this latter section, a restitution order is discretionary for the purpose of the minor's rehabilitation. To the extent the juvenile court relied on section 730 in imposing the original restitution orders, they would be discretionary. Any order to preserve those orders upon a commitment to DJF would be improperly imposed. The record does not reflect under which authority restitution was imposed by the juvenile court.
The juvenile court should orally order that all prior orders for restitution under section 730.6 remain in full force and effect, if it determines such an order is appropriate.
DISPOSITION
The matter is remanded to the juvenile court with directions to: (1) record in the minutes its reasons for dismissing the charge which prevented DJF commitment, (2) set a maximum term of imprisonment under section 726, subdivision (d)(1), consistent with this opinion, (3) exercise its discretion to set a maximum term of confinement in DJF under section 731, subdivision (c), (4) award the correct predisposition credits, (5) strike any discretionary probation terms, but allow any prior restitution orders under section 730.6 to remain in full force and effect, if appropriate, and (6) prepare an amended commitment order reflecting any changes and forward a certified copy to DJF. The order committing Melvin W. to DJF is otherwise affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
EDMON, P. J.
DHANIDINA, J.