Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. JW996326
Richman, J.
Iosefa P. timely appeals from an August 30, 2006 order of the juvenile court committing him to the Division of Juvenile Facilities (DJF), formerly the California Youth Authority, for a maximum term of 11 years and 8 months. Iosefa makes five arguments on appeal: (1) in calculating this maximum term, the juvenile court erred in running consecutively the confinement time for robbery and assault adjudications from 2003; (2) the juvenile court failed to exercise its discretion regarding whether to impose less than the maximum term of commitment; (3) the changed purpose of a DJF commitment from rehabilitation to punishment renders the maximum term imposed on Iosefa a violation of equal protection; (4) the maximum term after the United States Supreme Court’s decision in Cunningham v. California (2007) __ U.S. __ [127 S.Ct. 856] (Cunningham) is the mid-term, not the aggravated term imposed by the juvenile court; and (5) the juvenile court erred in imposing terms for two offenses on which he had already completed the maximum period of probation. We conclude none of these contentions has merit, and we affirm.
The facts in this section are from the dispositional report filed August 15, 2006.
According to the probation officer, Iosefa, now 20 years old, has a “long, distinguished history with the Juvenile Court.” His first contact with the juvenile court was when he was 10 years old. Iosefa’s most recent dispositional hearing on August 30, 2006 (the 2006 dispositional hearing) concerned four sustained petitions, each of which was filed when he was 17 years old. These were Iosefa’s ninth through twelfth sustained petitions.
At 11:20 p.m. on November 30, 2004, San Francisco Police Officer Eric Enderer and his partner were conducting a narcotics surveillance operation when they observed Iosefa place what appeared to be crack cocaine in his mouth. In the officers’ experience, it was a common practice for crack sellers to keep crack cocaine rocks in their mouths until a sale was made. A male adult named Wilson approached Iosefa and handed him some money. Iosefa put the cash into his pocket and then spit out two rocks of crack cocaine into his hand. At this point, the officers attempted to arrest Iosefa and Wilson. Iosefa took off running before he was apprehended. Iosefa had a 6:00 p.m. curfew at the time. It was determined that Iosefa was in possession of 0.7 grams of base crack cocaine. Based on this incident, a petition was filed on December 2, 2004 (the ninth petition) charging Iosefa with felony possession of cocaine base (Health & Saf. Code, § 11352, subd. (a)).
On September 30, 2005, the same date that the ninth petition was sustained, Iosefa confronted and threatened Officer Enderer in a court parking lot after Enderer testified regarding Iosefa’s 2004 arrest for felony possession of cocaine base, described above. A petition was filed on October 13, 2005 (the tenth petition), charging Iosefa in count one with felony use of force and threats against a witness in a juvenile court proceeding (Pen. Code, § 140).
On October 14, 2005, the day after the tenth petition was filed, San Francisco police inspector McMillan was patrolling an area of the Sunnydale housing project when he saw Iosefa and three other males walking behind a building. Iosefa was holding a Mac 10-type assault pistol, which he proceeded to fire two or three times into the ground. He then placed the gun into a black backpack. McMillan called for backup assistance. Iosefa was arrested in a nearby apartment. McMillan retrieved the backpack from under a vehicle. The gun was inside the backpack.
Based on this gun incident, an October 17, 2005 petition (the eleventh petition) charged Iosefa in count one with felony carrying a loaded assault weapon on his person and in a vehicle (Pen. Code, § 12031, subds. (a)(1), (a)(2)(D)); in count two with felony possession of a concealable firearm (Pen. Code, § 12101, subds. (a)(1), (c)(1)(C)); in count three with felony discharge of a firearm in a grossly negligent manner which could result in injury or death (Pen. Code, § 246.3); and in count four with misdemeanor possession of live ammunition (Pen. Code, § 12101, subd. (b)(1)). The eleventh petition gave notice of an intent to use prior sustained offenses for the purposes of disposition.
On November 21, 2005, Iosefa assaulted two youths in juvenile hall by punching them with his fists for no apparent reason. A petition was filed two days later (the twelfth petition), charging Iosefa in counts one and two with felony assault by means of force likely to produce great bodily injury (GBI) (Pen. Code, § 245, subd. (a)(1)). Like the eleventh petition, the twelfth petition gave notice of an intent to use prior sustained offenses for purposes of disposition.
On August 2, 2006, the juvenile court granted the People’s motion to amend count one of the tenth petition to allege a misdemeanor; to amend count one of the twelfth petition to allege a misdemeanor; to dismiss counts one, three and four of the eleventh petition; and to dismiss count two of the twelfth petition. Iosefa then admitted the amended misdemeanor count one of the tenth petition (Pen. Code, § 140 [use of force and threats against a witness in a juvenile proceeding]); admitted felony count two of the eleventh petition (Pen. Code, § 12101, subd. (a)(1) [possession of a concealable firearm]); and admitted the amended misdemeanor count one of the twelfth petition (Pen. Code, § 245, subd. (a)(1) [assault by means of force likely to produce GBI]).
On August 30, 2006, the juvenile court followed the probation officer’s recommendation and committed Iosefa to the DJF for a maximum term of 11 years 8 months, less 1,368 days custody credit. On September 22, 2006, Iosefa’s custody credit was recalculated as 1,473 days as of August 30, 2006.
DISCUSSION
I. Imposition of Consecutive Terms for the 2003 Robbery and Assault Adjudications.
Iosefa first contends that the juvenile court erred at the 2006 dispositional hearing when it calculated Iosefa’s maximum term of DJF commitment by running consecutively the confinement time for robbery and assault adjudications from 2003. We conclude there was no such error.
a. Procedural and Factual Background.
The robbery and assault adjudications at issue were the result of a contested jurisdictional hearing held on June 23, 2003. At that hearing, 16-year-old Ramon M. testified that on February 12, 2003, while walking to a bus stop, he and his 15-year-old cousin Robert N. were surrounded by Iosefa (then 15 years old) and five other teenage boys. Ramon knew Iosefa from school. One of the boys asked Ramon for a dollar and Ramon said he did not have one for them. A different boy then demanded that Ramon empty his pockets. Ramon complied, pulling out a dollar bill. One of the boys snatched it from Ramon. Ramon could not identify the particular boy who asked him for a dollar or the boy who snatched the dollar from him.
After the boy took the dollar, Ramon’s cousin, Robert, tried to intervene. The boys asked Robert if he wanted “to be involved with this, too,” and one of them tried to go through Robert’s pockets. Robert resisted. Then three of the boys began punching and kicking Robert. Robert testified that he was beaten, but not robbed.
After the attack on Robert had begun, three boys began punching Ramon in the face and shoulder between five and ten times. During this attack, Ramon fell to the ground. The boys kicked Ramon more than five times while he was on the ground. Ramon identified Iosefa as one of the boys who had punched him. Ramon testified that before Iosefa hit him, Ramon had asked Iosefa why he was “doing this,” and Iosefa responded, “What did you say, nigger?” While Ramon was being kicked and punched, someone pulled Ramon’s necklace off his neck. Justin F., who also knew Iosefa from school, testified that he saw Iosefa running away after the incident with two other people and saw that Ramon and Robert were injured.
The juvenile court sustained the robbery and assault counts involving Ramon. With respect to Robert, the court sustained the assault count but not the robbery count.
At the dispositional hearing on August 29, 2003, the juvenile court committed Iosefa to the Log Cabin Ranch. The court imposed a maximum confinement term of nine years and four months, but did not state at the hearing how it arrived at that number and did not make any factual findings. However, an attachment to clerk’s minutes regarding that dispositional hearing indicates that in calculating the maximum confinement term, five years was apportioned for the robbery offense against Ramon. One year was apportioned for each of the two assault offenses against Ramon and Robert respectively. According to the attachment, the aggregated confinement time for those three offenses was seven years. (See Welf. & Inst. Code, § 726, subd. (c) [the “ ‘maximum term of imprisonment’ shall be the aggregate term of imprisonment specified in subdivision (a) of Section 1170.1 of the Penal Code”]; Pen. Code, § 1170.1, subd. (a) [the aggregate term equals the sum of the principal and subordinate terms, with the principal term consisting of the greatest term of imprisonment imposed for any of the crimes and the subordinate term for each consecutive offense consisting of one-third the middle term for each other felony].) The attachment indicates that the remaining two years and four months of the maximum confinement term was based on four other offenses from petitions filed May 12, 1999, June 19, 2001, and July 3, 2003.
At the 2006 dispositional hearing, the juvenile court apportioned one year each to the robbery and the assault committed against Ramon, as well as one year for the assault committed against Robert in calculating the maximum term of 11 years and 8 months. The court did so after Iosefa’s counsel argued that adding confinement time for the assault on Ramon as well as the robbery would violate Penal Code section 654 by imposing punishment for two offenses (the robbery and the assault against Ramon) which were both incident to one objective (to rob Ramon).
b. Analysis.
i. The Juvenile Court’s Implicit Penal Code Section 654 Findings.
Iosefa argues the juvenile court violated Penal Code section 654’s prohibition on multiple punishment for an indivisible course of conduct punishable under more than one criminal statute when it ran consecutively the confinement times for the 2003 robbery and assault adjudications. Referring to arguments made by Iosefa’s counsel in the juvenile court prior to the 2006 dispositional hearing, Iosefa contends the juvenile court erroneously imposed consecutive terms for the robbery offense and assault offense committed on Ramon because these offenses were incidental to Iosefa’s sole objective of robbing Ramon.
There is no Penal Code section 654 issue regarding the imposition of a one-year consecutive term with respect to the assault on Robert. As Iosefa acknowledged in the juvenile court, Penal Code “[s]ection 654 is inapplicable to crimes perpetrated against different victims.” (In re Dennis C. (1980) 104 Cal.App.3d 16, 22.)
“[Penal Code] [s]ection 654 precludes multiple punishment for a single act or indivisible course of conduct punishable under more than one criminal statute. Whether a course of conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the ‘intent and objective’ of the actor. [Citation.] If all of the offenses are incident to one objective, the court may punish the defendant for any one of the offenses, but not more than one. [Citation.] If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct.” (People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268 (Cleveland); see also Dennis C., supra, 104 Cal.App.3d at p. 22 [“Penal Code section 654 is applicable to juvenile court proceedings”].)
At the 2003 dispositional hearing, where the juvenile court initially imposed consecutive terms for the robbery and assault offenses against Ramon, the court did not make any factual findings relevant to Penal Code section 654 and the issue of section 654’s applicability was never raised. At the 2006 dispositional hearing, the juvenile court did not specifically address the section 654 issue when it did the same thing. Iosefa appears to assert that this lack of explicit findings itself constituted error. However, the court at the 2006 hearing did indicate it had reviewed “all of the documents in the file.” Iosefa’s file included a memorandum filed by Iosefa’s counsel for that hearing which recited the Penal Code section 654 argument that Iosefa makes in this appeal. Thus, when it imposed the maximum term of 11 years and 8 months at the 2006 dispositional hearing, the juvenile court “implicitly found” that Penal Code section 654 did not prohibit the imposition of consecutive terms for the robbery and assault offenses committed against Ramon. (People v. Osband (1996) 13 Cal.4th 622, 730-731; see also In re Ismael A. (1989) 207 Cal.App.3d 911, 913 (Ismael A.) [a juvenile court need not “state reasons on the record for imposing an aggregate or consecutive commitment” to the DJF].)
Iosefa did not waive his Penal Code section 654 argument by waiting until the most recent dispositional hearing to raise the issue because “claims of error concerning section 654 are subject to review even in [the] absence of” an objection. (Cleveland, supra, 87 Cal.App.4th at p. 268, fn. 2.)
This implicit “factual determination . . . must be sustained on appeal if supported by substantial evidence.” (Osband, supra, 13 Cal.4th at pp. 730-731 .) In conducting this substantial evidence review, we view the evidence “in a light most favorable to the [commitment order], and presume in support of the [juvenile] court’s conclusion the existence of every fact the trier of fact could reasonably deduce from the evidence.” (Cleveland, supra, 87 Cal.App.4th at p. 271.) We conclude that “substantial evidence supports the [juvenile court’s] implicit determination that [Iosefa] held the dual objectives of” robbing and assaulting Ramon “during his attack on” him. (Osband, supra, 13 Cal.4th at p. 731.)
Iosefa asserts the evidence at the hearing “clearly showed that the assault and robbery were perpetrated for a single objective: the taking of Ramon’s property.” But the uncontradicted evidence shows otherwise. Regarding Ramon’s dollar, the evidence shows that the dollar was taken before Iosefa and the other boys assaulted Ramon. It was only after Ramon’s cousin, Robert, tried to intervene, and after the boys had begun to attack Robert, that Iosefa and two other boys began to attack Ramon, causing him to fall to the ground and continuing to attack Ramon while he lay on the ground. Thus, the assault on Ramon was entirely separate from the taking of his dollar.
The robbery count describes the “property” which Iosefa was charged with taking as the “necklace, money and other personal property.”
Regarding Ramon’s necklace, there was no evidence that the purpose of the attack was to take his necklace. And the circumstances of the attack, particularly its severity, indicate that it was an independent, gratuitous act of violence. The attack on Robert immediately preceded, and appeared to trigger, the attack on Ramon. Robert was not robbed. Up to that point, no one had asked for or attempted to take Ramon’s necklace. Ramon testified that before Iosefa hit him, Ramon had asked Iosefa why he was “doing this,” and Iosefa responded, “What did you say, nigger?” Once the assault on Ramon began, Ramon fell to the ground where the boys continued to kick him. The amount of force used in the assault far exceeded what was necessary to accomplish the robbery of the necklace. (See Cleveland, supra, 87 Cal.App.4th at pp. 271-272 [finding sufficient evidence that the defendant harbored separate objectives where “the amount of force used in taking the Walkman was far more than necessary to achieve one objective”].) Indeed, all it took to take the necklace was to pull it off Ramon’s neck. (Id. at p. 272 [“ ‘[S]ection [654] cannot, and should not, be stretched to cover gratuitous violence or other criminal acts far beyond those reasonably necessary to accomplish the original offense’ ”].)
ii. Penal Code Section 654 and Cunningham.
Iosefa’s second Penal Code section 654 argument is that pursuant to Cunningham, supra, 127 S.Ct. 856, the juvenile court erred when it failed to determine beyond a reasonable doubt that Iosefa entertained multiple objectives such that section 654 did not apply. This argument also lacks merit. Cunningham says nothing about juvenile court proceedings. Its holding rests on an adult defendant’s constitutional right to trial by jury under the Sixth and Fourteenth Amendments (Cunningham, supra, 127 S.Ct. at pp. 860, 871), a right not possessed by juveniles. (In re Travis W. (2003) 107 Cal.App.4th 368, 378 [it is a “long-established principle that there is no right to jury trial in juvenile court proceedings”].) All questions in a juvenile case, including the applicability of Penal Code section 654, are properly determined by the juvenile court. (See In re Alex N. (2005) 132 Cal.App.4th 18, 25, fn. 2 [it is discretionary with the juvenile court whether to aggregate the period of physical confinement on multiple counts].) Cunningham has no application here.
Moreover, even assuming Cunningham could be applied to the juvenile context, that decision was concerned only with judicial fact-finding regarding whether a defendant should be sentenced to an elevated “upper term” sentence. Cunningham said nothing about findings made regarding imposing consecutive terms or staying terms pursuant to Penal Code section 654. (Cunningham, supra, 127 S.Ct. at pp. 860, 871.) On the latter issue, our Supreme Court has explained that “the decision whether section 654 requires that a term be stayed is analogous to the decision whether to sentence concurrently. Both are sentencing decisions made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense, and neither implicates the defendant’s right to a jury trial on facts that are the functional equivalent of elements of an offense.” (People v. Black (2005) 35 Cal.4th 1238, 1264.)
II. Exercise of the Juvenile Court’s Discretion to Impose Less Than the Maximum Term of Commitment.
Iosefa next contends that the juvenile court erred by failing to exercise its discretion regarding whether to impose less than the aggravated or maximum term of commitment. In claimed support Iosefa cites In re Sean W. (2005) 127 Cal.App.4th 1177, 1183 (Sean W.), which he cites for the proposition that Welf. & Inst. Code, § 731, subd. (b) “unambiguously provides that the juvenile court has discretion to set a maximum term of confinement, based on the facts and circumstances of the case, so long as that term does not exceed the maximum period that could be imposed on an adult convicted of the same offense.” Iosefa contends that even though his counsel brought to the court’s attention Welfare and Institutions Code section 731, subdivision (b), “there is absolutely nothing in the record to indicate that the trial court understood that it possessed discretion or exercised it.” We disagree.
First, the record suggests that the juvenile court was aware of its discretion. As noted above, the court at the 2006 hearing stated that it had reviewed “all of the documents in the file,” which included a memorandum filed by Iosefa’s counsel for that hearing. That memorandum not only quoted Welfare and Institutions Code section 731, subdivision (b), but also cited Sean W., supra, 127 Cal.App.4th 1177 and In re Jacob J. (2005) 130 Cal.App.4th 429 (Jacob J.) for the proposition that “[j]uvenile courts must, when committing minors to the [DJF], make finding[s] and justify a maximum time appropriate to each case.” (See Jacob J., supra, 130 Cal.App.4th at p. 437 [the juvenile court has discretion under section 731 “to impose less than the adult maximum term of imprisonment when committing a minor to [the DJF] and [is] require[d] . . . to set that term of confinement based on the facts and circumstances of each case”].)
That statute specifically states that the court may set the maximum term of physical confinement “based upon the facts and circumstances of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court.” (Welf. & Inst. Code, § 731, subd. (b).)
Second, Iosefa’s argument is contrary to the presumption that the juvenile court knew and correctly applied the law. (Evid. Code, § 664; see also Ross v. Superior Court (1977) 19 Cal.3d 899, 913 [“scores of appellate decisions, relying on [Evid. Code, § 664], have held that ‘in the absence of any contrary evidence, we are entitled to presume that the trial court . . . properly followed established law”].) Although the juvenile court did not specifically acknowledge its discretion, “On a silent record, the . . . ‘court is presumed to have been aware of and followed the applicable law’ when exercising its discretion. [Citations.] The appellate court cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of its discretion.” (Jacob J., supra, 130 Cal.App.4th at pp. 437-438.) Here, in explaining why it was committing Iosefa to the DJF, the court discussed the “facts and circumstances” of Iosefa’s case (Welf. & Inst. Code, § 731, subd. (b); see also Sean W., supra, 127 Cal.App.4th at p. 1183; Jacob J., supra, 130 Cal.App.4th at p. 437), including the seriousness of his conduct over time and the fact “that previous dispositions have not been effective in the rehabilitation or protection” of Iosefa. The record thus reflects that the court “considered those facts and circumstances in setting its maximum term of physical confinement,” which is all that was required under Welfare and Institutions Code section 731, subdivision (b). (Jacob J., supra, 130 Cal.App.4th at p. 438.)
III. The Purported Change in the Purpose of a DJF Commitment.
Iosefa asserts that the purpose of a commitment to the DJF has changed from rehabilitation to punishment. He relies on this asserted change to argue that the holdings in Ismael A., supra, 207 Cal.App.3d at p. 913 and in In re Eric J. (1979) 25 Cal.3d 522 (Eric J.) are no longer good law, and that consequently the juvenile court committed error and violated Iosefa’s equal protection rights. Iosefa has not shown a change in the purpose of a DJF commitment and thus, both of his arguments fail.
In Ismael A., the Court of Appeal held that a juvenile court need not “state reasons on the record for imposing an aggregate or a consecutive commitment” to the DJF. (Ismael A., supra, 207 Cal.App.3d at p. 913.) The minor in Ismael A. had argued, as Iosefa does here, that “the underlying rationale for committing juveniles to [DJF] has changed to include punishment as well as rehabilitation. Because punishment is now a stated purpose of [juvenile court law], . . . juveniles are being treated enough like adults” that treating them differently during sentencing “violates public policy and a juvenile’s right to equal protection under law.” (Id. at p. 915.) As Iosefa correctly points out, the holding in Ismael A. was based on the determination that “the juvenile court law had not changed sufficiently to justify new procedures requiring a statement of reasons for the imposition of consecutive terms.” (See id. at p. 919 [“The rehabilitative purpose of [the DJF] is far different from the primarily punitive goals of the state prison sentences for adults”].) Iosefa argues that the purpose of a DJF commitment has since changed such that that Ismael A. is no longer good law and thus the juvenile court erred in failing to put on the record the reasons for imposing consecutive terms against Iosefa.
Iosefa similarly rehashes the argument made by the minor in Eric J.: “Welfare and Institutions Code section 726 denies him equal protection of the laws by providing that the maximum term of confinement for a juvenile is the longest term imposable upon an adult for the same offense, without the necessity of finding circumstances in aggravation of the crime justifying imposition of the upper term as is required in adult criminal procedure by Penal Code section 1170, subdivision (b).” (Eric J., supra, 25 Cal.3d at p. 528.) Like the court in Ismael A., the Supreme Court in Eric J. rejected this argument based on its conclusion that adults and juveniles are not “similarly situated,” in part because “minors adjudged wards of the juvenile courts are committed to the [DJF] for the purposes of treatment and rehabilitation.” (Eric J., supra, at pp. 530-531.) Iosefa argues that because this is no longer the case, the juvenile court violated his equal protection rights when it calculated his maximum period of commitment based on the aggravated term.
Iosefa also bases this second argument on the fact that he was an adult at the time of his commitment. He asserts that “to the extent that Eric J. relied upon a parens patriae model, it is distinguishable.” (See Eric J., supra, 25 Cal.3d at p. 530 [a minor is not similarly situated to an adult because when a minor is removed from the parents’ custody, “the state assum[es] the parents’ role, [and] the state also assumes the parents’ authority to limit the minor’s freedom of action”].) The parens patriae rationale still applies. Iosefa was 17 years old at the time the four petitions at issue were filed and thus was subject to the juvenile court’s jurisdiction. (Rucker v. Superior Court (1977) 75 Cal.App.3d 197, 200 [“juvenile court jurisdiction is based on age at the time of the violation of a criminal law or ordinance”].) The fact that he was an adult by the time of the 2006 dispositional hearing meant only that he could have waived the benefits of the juvenile law and elected to be sentenced as an adult. (Id. at pp. 200-201.) Iosefa chose not to do so. If anything, this argument supports the conclusion that Iosefa’s equal protection rights were not violated because he chose to submit to the juvenile court’s sentencing procedures.
Both of these arguments fail because Iosefa has not established that the purpose of a DJF commitment has changed from rehabilitation to punishment. Consequently, all that Iosefa has done is to rehash the same arguments that were properly rejected in Ismael A. and Eric J. As we recognized in 2005, “rehabilitation of the minor” continues to be the purpose of juvenile law. (Sean W., supra, 127 Cal.App.4th at p. 1188.) Iosefa has not pointed to any change in the law since 2005 which has altered this purpose. He cites Welfare and Institutions Code section 202, and makes the same argument rejected by the court in Ismael A. in 1989: that “punishment is now a stated purpose of section 202.” (Ismael A., supra, 207 Cal.App.3d at p. 915.) This statute states that minors under the jurisdiction of the juvenile court may only receive “punishment which is consistent with the rehabilitative objectives of this chapter.” (Welf. & Inst. Code, § 202, subd. (b).) Furthermore, the statute makes clear that although such “punishment” can include commitment to the DJF, it “does not include retribution.” (Welf. & Inst. Code, § 202, subd. (e).) We agree with the Court of Appeal’s conclusion in Ismael A. that the above-quoted language regarding punishment in section 202 is not inconsistent with the conclusion that rehabilitation is the primary consideration in imposing a DJF commitment. (Ismael A., supra, at pp. 916-918.)
Iosefa also contends the purpose of a DJF commitment has changed to punishment based on his assertion that “it is now well known that DJF facilities offer very little in the way of rehabilitative services and are places rife with violence, abuse, and poor treatment.” He cites to reports describing serious problems at DJF facilities. However, the existence of these problems, while deplorable, does not change the fact that the purpose of a DJF commitment remains rehabilitation.
Iosefa also asserts that “the juvenile court had punishment in mind when it committed [him] to the DJF.” The record indicates otherwise. The juvenile court explained that a DJF commitment was appropriate for Iosefa because of “the value of imposing discipline and accountability” on Iosefa, “Iosefa’s needs for a structured institutional setting,” the fact “that previous dispositions have not been effective in the rehabilitation or protection of” Iosefa, that “he has failed to reform” while on probation, and “that he is in need of professional help, intensive counseling and school . . . provided by . . . the counseling department of” the DJF.
IV. The Maximum Period of Confinement After Cunningham .
Iosefa argues that the maximum period of confinement after Cunningham, supra, 127 S.Ct. 856, is the mid-term, not the aggravated term imposed by the juvenile court. As we explain above, Cunningham has no application to juvenile court proceedings as its holding rests on an adult defendant’s constitutional right to trial by jury under the Sixth and Fourteenth Amendments (Cunningham, supra, 127 S.Ct. at pp. 860, 871), a right not possessed by juveniles. (Travis W., supra, 107 Cal.App.4th at p. 378.) Moreover, as Iosefa acknowledges, our Supreme Court held in Eric J. that the juvenile court need not making any findings regarding circumstances in aggravation to justify using the aggravated or upper term in calculating the maximum term of a DJF confinement pursuant to Welfare and Institutions Code section 726. (Eric J., supra, 25 Cal.3d at pp. 528-533.) Consequently, even were Cunningham applicable to juvenile court proceedings, the juvenile court here properly did not engage in any judicial fact-finding regarding circumstances in aggravation when it calculated Iosefa’s maximum term of DJF confinement. Cunningham therefore could not have been implicated. (See Cunningham, supra, 127 S.Ct. at p. 860 [“The question presented is whether the DSL [(determinate sentencing law)], by placing sentence-elevating factfinding within the judge’s province, violates a defendant’s right to trial by jury”].)
V. Imposing Terms on Offenses for Which Probation Was Completed.
Finally, Iosefa contends the juvenile court erroneously imposed terms for offenses on which he had already completed the maximum period of probation. Because Iosefa has not provided us with any factual support for this contention, nor with sufficient legal support or any legal argument, we cannot discern any error by the juvenile court.
Iosefa asserts that the juvenile court, in calculating Iosefa’s maximum term of confinement, improperly included commitment time for 1999 and 2001 sustained petitions for violating Penal Code section 12403.7, subdivision (g) (unlawful use of tear gas) and for violating Vehicle Code section 2800.2 (attempting to evade peace officer while driving recklessly) respectively. Iosefa contends that because he had already completed five years of probation for each of these offenses, which was the maximum time an adult could be placed on probation, he could not be confined for those offenses thereafter.
Iosefa fails to cite any portion of the record for factual support for this argument. He merely refers us to a memorandum filed in the juvenile court by his counsel which similarly fails to provide any factual support. Our independent review of the record indicates that there is nothing to establish Iosefa’s contention that he “completed five years probation for each of the offenses” at issue. The record indicates that Iosefa has been on probation ever since he was eleven years old, which is not surprising given his recidivism. But there is nothing to show that he received and completed five years probation solely for committing the two offenses at issue.
Regarding these two offenses, the record discloses only the following: On May 12, 1999, a petition was filed charging Iosefa with unlawfully using tear gas in violation of Penal Code section 12403.7, subdivision (g). Iosefa admitted the charge on September 7, 1999. At a disposition hearing held October 4, 1999, the juvenile court considered the tear gas offense, declared Iosefa a ward of the court and committed him to the chief probation officer for out of home placement and care. On June 19, 2001, a petition was filed charging Iosefa in count one with violation of Vehicle Code section 2800.2 for recklessly driving a vehicle. On June 20, 2001, Iosefa admitted this offense. On July 13, 2002, the juvenile court redeclared him a ward of the court and committed him to the chief probation officer for out of home placement and care.
Moreover, while Iosefa acknowledges that this “question is one of first impression in the juvenile context,” he does not make any legal arguments on appeal nor cite any authorities in his appellate briefs. In the memorandum filed with the juvenile court, Iosefa’s counsel merely relied upon Welfare and Institutions Code section 731, subdivision (b), which prohibits physically confining a minor in the DJF “for a period of time in excess of the maximum period of imprisonment which could be imposed upon an adult convicted of the . . . offenses,” and Penal Code section 1203.1, concerning the suspension or execution of sentence in an order granting probation. We accordingly “dismiss his claim ‘as not properly raised: it is perfunctorily asserted without argument in support.’ ” (People v. Griffin (2004) 33 Cal.4th 536, 589-590, fn. 25.)
Penal Code section 1203.1, subdivision (a) provides that the “court . . ., in the order granting probation, may suspend the imposing or the execution of the sentence and may direct that the suspension may continue for a period of time not exceeding the maximum possible term of the sentence, except as hereinafter set forth, and upon those terms and conditions as it shall determine. The court . . . in the order granting probation and as a condition thereof, may imprison the defendant in a county jail for a period not exceeding the maximum time fixed by law in the case. [¶] However, where the maximum possible term of the sentence is five years or less, then the period of suspension of imposition or execution of sentence may, in the discretion of the court, continue for not over five years.”
DISPOSITION
The August 30, 2006 order is affirmed.
We concur: Haerle, Acting P.J., Lambden, J.