Opinion
F074404
07-25-2017
In re Z.D., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. Z.D., Defendant and Appellant.
Stephanie L. Gunther, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jeffrey D. Firestone, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 13CEJ600228-3V3, 4V)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Gregory T. Fain, Judge. Stephanie L. Gunther, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Franson, J. and Peña, J.
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INTRODUCTION
After a Welfare and Institutions Code section 602 petition was filed, Z.D. admitted one count of second degree robbery (Pen. Code, § 211) and a Penal Code section 12022.5, subdivision (a) weapon enhancement. At disposition, the juvenile court set a maximum period of confinement at 15 years and two months. Z.D. appeals, contending the juvenile court did not understand it had discretion to set a maximum period of confinement that is less than the maximum to which an adult offender could be sentenced. We agree. The matter will be remanded for the juvenile court to exercise its discretion.
References to code sections are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL SUMMARY
The facts of the underlying offense are not relevant to the issues on appeal. Our summary focuses on the procedural history and disposition. A juvenile wardship petition was filed November 24, 2015. The petition alleged Z.D. had committed a carjacking, two second degree robberies, and a home invasion robbery. All counts included an allegation that Z.D. personally used a firearm in the commission of the offenses, in violation of Penal Code section 12022.53, subdivision (b). This enhancement provides a punishment of 10 years confinement; there is no triad of terms. (Pen. Code, § 12022.53, subd. (b).) The petition stated the People intended to seek an increase to the maximum term of confinement by aggregating the terms of all previously sustained petitions at the time of disposition.
On January 20, 2016, Z.D. admitted one count of second degree robbery and a Penal Code section 12022.5, subdivision (a) enhancement. This enhancement provides a triad of terms of imprisonment, three, four, or 10 years. (Pen. Code § 12022.5, subd. (a).) The punishment for second degree robbery is a triad of two, three, or five years. (Pen. Code, § 213, subd. (a)(2).)
The probation officer's report prepared prior to disposition correctly notes the triad of terms for second degree robbery. The report, however, while correctly noting the enhancement is "PC 12022.5(a)" incorrectly lists only "10 years" as the possible term for the enhancement.
At the February 3, 2016, disposition hearing, the juvenile court noted it had read and considered the probation report. When the juvenile court asked the probation officer and the parties if there were any additions or corrections to the report, no mention was made of the error in listing "PC 12022.5(a)" as requiring a term of 10 years, with no triad. In fixing the maximum term of confinement, the juvenile court stated:
"The current [Penal Code section] 211 [robbery] in the dash four petition is a two, three, five. It's five year aggregate term plus ten years under [Penal Code section] 12022.5[, subdivision ](a). That's 15 years."
The juvenile court imposed an additional two months for an offense from another sustained petition, with a maximum confinement time of 15 years and two months. The juvenile court concluded with, "So it's clear I'm adopting the recommendation of probation in its entirety."
The juvenile court continued Z.D. on probation with a commitment to the Juvenile Justice Center and a local program. The juvenile court also advised Z.D. that if he committed a willful violation of the terms and conditions of probation, he would be committed to the Department of Juvenile Justice (DJJ).
On July 26, 2016, Z.D. admitted to violating probation. At the August 9, 2016, disposition hearing, the juvenile court noted it had read the current probation office report. The July 2016 probation report listed the period of confinement on the robbery offense as a triad with a recommended five years; and the "PC 12022.5(a)" enhancement as 10 years, with no triad listed. The juvenile court stated it was exercising its "discretion to select the lower term of the [Penal Code section] 211 [robbery] of two years, plus ten years for the gun, plus two months" for the other sustained petition. Twelve years and two months was fixed as the maximum confinement time; 334 days of credit awarded against the maximum confinement time; and Z.D. was committed to the DJJ.
The written disposition order filed August 9, 2016, reflects a maximum period of confinement of 15 years and two months, with credit of 334 days on one page, and a maximum term of 12 years and two months on a subsequent page. Z.D. filed a timely notice of appeal on September 16, 2016.
DISCUSSION
Z.D.'s sole contention on appeal is that the juvenile court abused its discretion in fixing a term of confinement of 10 years for the firearm enhancement because it misunderstood there was a triad of possible terms and thus, misunderstood its discretion. The People contend the law is unclear and cite In re George M. (1993) 14 Cal.App.4th 376 (George M.) for the proposition that the juvenile court was required to impose the maximum term possible for the firearm enhancement.
We agree there is an abuse of discretion requiring a remand. The People's reliance on George M. is misplaced; the law is clear the juvenile court had discretion to impose less than 10 years for the firearm enhancement. It is apparent from the record the juvenile court was under the erroneous impression the only term that could be imposed for the firearm enhancement was 10 years, which is incorrect. A failure to exercise discretion can constitute an abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847-848.)
Standard of Review
An appellate court "reviews a commitment decision for abuse of discretion, indulging all reasonable inferences to support the juvenile court's decision. [Citations.]" (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396; accord, In re Asean D. (1993) 14 Cal.App.4th 467, 473.) "When the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion. An appellate tribunal is not authorized to substitute its judgment for that of the trial judge. [Citation.]" (People v. Stewart (1985) 171 Cal.App.3d 59, 65; see In re Todd W. (1979) 96 Cal.App.3d 408, 416.)
In addition, "[t]o exercise the power of judicial discretion, all material facts and evidence must be both known and considered, together with legal principles essential to an informed, intelligent and just decision. [Citation.]" (People v. Lara (2001) 86 Cal.App.4th 139, 165.) Generally, "where the record affirmatively discloses that the trial court misunderstood the scope of its discretion, remand to the trial court is required to permit that court to [act] . . . with full awareness of its discretion . . . ." (People v. Fuhrman (1997) 16 Cal.4th 930, 944; accord, People v. Bruce G. (2002) 97 Cal.App.4th 1233, 1245-1246; People v. Jeffries (2000) 83 Cal.App.4th 15, 26.)
Similarly, "when the record shows that the trial court proceeded . . . on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its . . . discretion at a new . . . hearing. [Citations.] [Juveniles] are entitled to '[commitment] decisions made in the exercise of the "informed discretion" of the . . . court,' and a court that is unaware of its discretionary authority cannot exercise its informed discretion. [Citation.]" (People v. Brown (2007) 147 Cal.App.4th 1213, 1228; accord, In re Sean W. (2005) 127 Cal.App.4th 1177, 1181-1182.)
Analysis
In setting the maximum length of a DJJ commitment, two statutes come into play: section 726 and section 731. Section 726, subdivision (d) provides, in pertinent part:
"(1) If the minor is removed from the physical custody of his or her parent . . . 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 . . . offenses which . . . continued the minor under the jurisdiction of the juvenile court.
"(2) As used in this section and in Section 731, 'maximum term of imprisonment' means the longest of the three time periods set forth in paragraph (3) of subdivision (a) of Section 1170 of the Penal Code, but without the need to follow the provisions of subdivision (b) of Section 1170 of the Penal Code . . . .
"(3) If the court elects to aggregate the period of physical confinement on multiple counts or multiple petitions, including previously sustained petitions adjudging the minor a ward within Section 602, the 'maximum term of imprisonment' shall be the aggregate term of imprisonment specified in subdivision (a) of Section 1170.1 of the Penal Code . . . ."
Effective January 1, 2013, subdivision (c) of section 726 was redesignated subdivision (d), without substantive change. (Stats. 2012, ch. 176, § 3.) Some of the opinions we cite refer to subdivision (c) of the statute. --------
Section 731, subdivision (c) provides:
"A ward committed to [DJJ] may not be held in physical confinement for a period of time in excess of the maximum period of imprisonment that could be imposed upon an adult convicted of the offense or offenses that brought or continued the minor under the jurisdiction of the juvenile court. A ward committed to [DJJ] 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 that brought or continued the ward under the jurisdiction of the juvenile court, which may not exceed the maximum period of adult confinement as determined pursuant to this section. . . ."
The California Supreme Court in In re Jovan B. (1993) 6 Cal.4th 801 (Jovan B.), issued several months after George M., held that the maximum term described in section 726 incorporates the body of laws known as the Determinate Sentencing Act (DSA). (Jovan B., supra, at p. 816.) Jovan B. further held that section 726 "obviously intends that, for purposes of calculating a juvenile ward's maximum confinement or commitment, the DSA's enhancement scheme should be applied fully . . . ." (Jovan B., supra, at p. 813.)
Although juvenile courts have broader dispositional discretion than do adult courts directly subject to the DSA, the minor may not be held in confinement for a period longer than an adult's maximum period of imprisonment — i.e., the DSA's aggravated term — for the identical offense, or, in the case of multiple felony counts and/or petitions, an adult offender sentenced to consecutive terms for multiple felonies. (Jovan B., supra, 6 Cal.4th at p. 810; In re Alex U. (2007) 158 Cal.App.4th 259, 264; In re Alex N. (2005) 132 Cal.App.4th 18, 26.)
When a minor is both removed from parental custody due to a wardship finding and is committed to DJJ, section 731 not only restricts the length of confinement to the maximum period of imprisonment for an adult without regard to aggravating or mitigating circumstances, but also requires the court to base the maximum term of physical confinement on the facts and circumstances of the minor's offenses. (In re Alex N., supra, 132 Cal.App.4th at p. 26.) Taken together, the statutes give a juvenile court discretion not only to impose a maximum term of physical confinement equal to an adult's maximum period of imprisonment for the identical offense or offenses, but also to impose a shorter maximum term of physical confinement on the basis of the facts and circumstances of the case (In re Alex U., supra, 158 Cal.App.4th at p. 264; In re Carlos E. (2005) 127 Cal.App.4th 1529, 1533) — even one that is lower than the minimum sentence that might be imposed on an adult for the same offense or offenses (In re A.G. (2011) 193 Cal.App.4th 791, 795, 806) or one that does not match one of the three terms established by the DSA for a given offense (In re H.D. (2009) 174 Cal.App.4th 768, 776).
The record of the disposition hearing in the present case shows the juvenile court was aware it had to determine both whether Z.D. should be committed to DJJ and, if so, for how long. The record also shows the juvenile court took into account the considerations set forth in section 725.5, and knew it had to consider the facts and circumstances of the case when determining the appropriate maximum period of physical confinement, which could not exceed the maximum period of imprisonment for an adult.
The juvenile court at disposition noted that it had reviewed the probation report and identified the possible terms it could impose for the robbery and firearm enhancement as a triad of "two, three, or five years to be enhanced by the [Penal Code section] 12022.5[, subdivision ](a) of ten years." Although the juvenile court specifically noted it was exercising discretion to impose the mitigated term of two years for the robbery, the record does not disclose an understanding on the part of the juvenile court that it had discretion to impose less than 10 years for the firearm enhancement. The probation report consistently listed only 10 years as the term for the firearm enhancement, even though the Penal Code section 12022.5, subdivision (a) enhancement Z.D. admitted sets forth a triad of possible terms of three, four, or 10 years. (Pen. Code, § 12022.5, subd. (a).)
When the record discloses that the probation report erroneously set forth only one possible term for the Penal Code section 12022.5, subdivision (a) enhancement; the juvenile court acknowledged reviewing the probation report; and the juvenile court referenced the triad of terms for the robbery count, but noted only a possible 10 year term for the firearm enhancement instead of the triad; it appears the juvenile court was unaware it had the discretion to impose less than 10 years as the maximum for the firearm enhancement. A failure to exercise discretion because the juvenile court was unaware it had discretion can constitute an abuse of discretion. (People v. Sandoval, supra, 41 Cal.4th at pp. 847-848.) That the juvenile court may have imposed less than 10 years is entirely possible, since it rejected the probation officer's recommendation of five years for the robbery offense and instead imposed the mitigated two year term.
Although "the length of an adult's incarceration is determined in large part by the court's sentence, the length of a juvenile's commitment is determined by DJJ, independent of the juvenile court's maximum term of confinement. The maximum term serves only as an upper limit on DJJ's custody. [Citation.]" (In re A.G., supra, 193 Cal.App.4th at p. 805, fn. 12.) "Minors most often do not serve their maximum terms, but the statutory maximum may affect both parole eligibility and the extent to which actual confinement may be prolonged for disciplinary reasons. [Citations.]" (Jovan B., supra, 6 Cal.4th at p. 811.)
Thus, the matter should be remanded for the juvenile court to exercise its discretion in setting a maximum term of confinement for the Penal Code section 12022.5, subdivision (a) enhancement.
DISPOSITION
The maximum possible term imposed in the disposition order is vacated and the matter is remanded for the juvenile court to exercise its discretion in setting a maximum possible term of confinement for the firearm enhancement. An amended disposition order shall then be filed and disseminated to the appropriate authorities, which should reflect the correct term of two years maximum confinement for the robbery, the term imposed for the firearm enhancement after remand, and the two months for the Penal Code section 242 offense. In all other respects the juvenile court's orders are affirmed.