Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIJ114208, Robert J. McIntyre, Judge.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Melissa Mandel, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Minor Jason E. appeals from an order declaring him a ward of the court pursuant to Welfare and Institutions Code section 602. Citing Welfare and Institutions Code section 726, subdivision (c), he argues the juvenile court erred in a dispositional hearing held June 25, 2007, by failing to set a maximum term of confinement. He then argues the juvenile court erred in subsequent hearings held August 21, 2007 and December 14, 2007, by setting the maximum term of confinement at eight years four months. Minor also argues one of the conditions of his probation, which prohibits him from associating within anyone in possession of a weapon, is unconstitutionally vague and must be modified to include a knowledge element.
Minor raised this issue for the first time in his reply brief. In support of the argument, he also submitted a motion to augment the record with additional documents filed in the juvenile court and discovered by appellate counsel after filing the opening brief on appeal. On January 17, 2008, we granted minor’s motion to augment and allowed additional time for supplemental briefing. The People filed a supplemental brief on April 7, 2008, and minor filed a supplemental reply on April 23, 2008.
FACTUAL AND PROCEDURAL BACKGROUND
Minor was taken into custody on April 10, 2007, and detained at juvenile hall based on a finding of probable cause. A petition for wardship pursuant to Welfare and Institutions Code section 602 was filed on April 11, 2007, charging minor with two crimes committed on April 10, 2007: Count 1, burglary of an inhabited dwelling with intent to commit a felony (Pen. Code, § 459); and count 2, assault with a deadly weapon by means of force likely to produce great bodily injury (Pen. Code, §245, subd. (a)(1)). The petition further alleges minor committed two other crimes on January 8, 2007: Count 3, robbery (Pen. Code, § 211); and count 4, obstruction of a peace officer (Pen. Code, § 148, subd. (a)).
The juvenile court held a jurisdictional hearing on June 6, 2007. At the People’s request, the robbery charge alleged in count 3 was dismissed. The court found the obstruction allegations alleged in count 4 to be untrue. However, the court found true the burglary and assault charges alleged in counts 1 and 2. The court also found the burglary offense qualified as a “violent felony” within the meaning of Penal Code section 667.5, subdivision (c)(21).
A dispositional hearing was held June 25, 2007, and based on the probation officer’s recommendation, the court declared minor a ward of the court, placed him on probation subject to various terms and conditions, and released him to the custody of his guardians. The court also committed defendant to serve 77 days in juvenile hall, but awarded him credit for time served of 77 days with “balance to be served zero.”
Minor was taken into custody again on August 18, 2007, and charged with another burglary in violation of Penal Code section 459, as well as receiving stolen property in violation of Penal Code section 496, subdivision (a). During a detention hearing on August 21, 2007, minor admitted the burglary, and the receiving stolen property allegation was dismissed. This time, the juvenile court removed minor from the custody of his guardians, and he was placed in a suitable youth facility. According to the minutes of the detention hearing, the juvenile court also set a maximum confinement time of eight years four months.
On November 15, 2007, the court was notified minor left his placement without permission and could not be located. Minor then appeared before the juvenile court in custody on November 27, 2007. At a disposition hearing held December 14, 2007, the court found minor violated a court order, and he was detained by juvenile authorities pending placement. Once again, the court set the maximum confinement time at eight years four months. The facts of the offenses are not relevant to our analysis.
DISCUSSION
I. Maximum Confinement Time
Welfare and Institutions Code section 726, subdivision (c), states in pertinent part as follows: “If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship . . . 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.” “Physical confinement” is defined as “placement in a juvenile hall, ranch, camp, forestry camp or secure juvenile home pursuant to [Welfare and Institutions Code s]ection 730, or in any institution operated by the Youth Authority.” (Welf. & Inst. Code, § 726, subd. (c).) The implicit purpose in this statutory requirement is to advise the officials at the institution of confinement of the maximum amount of time the juvenile can be confined by the institution. (See In re Prentiss C. (1993) 14 Cal.App.4th 1484, 1487.)
A. Dispositional Hearing Held June 25, 2007
During the dispositional hearing held June 25, 2007, the juvenile court did not set a maximum confinement time. Minor contends the juvenile court was required to do so by Welfare and Institutions Code section 726, subdivision (c). As a result, he argues we should remand the case to the juvenile court for a determination of the maximum confinement time. Citing In re Ali A. (2006) 139 Cal.App.4th 569, 573, the People contend no remand is necessary because minor was placed in the physical custody of his guardians, and, as a result, the juvenile court was not obligated to set a maximum term of confinement. We agree with the People.
Similar to this case, the minor in In re Ali A., supra, 139 Cal.App.4th 569, was committed “to the custody of his parents, subject to supervision on probation” and was not ordered to serve any further time in physical confinement subsequent to the disposition. (Id. at p. 573.) However, the court set the maximum term of confinement at three years. (Id. at p. 572.) The court of appeal concluded Penal Code section 726, subsection (c), “does not apply, and the juvenile court was not required . . . to include a maximum term of confinement in its dispositional order.” (In re Ali A., at p. 573.) As a result, the three-year maximum term of confinement shown in the juvenile court’s order was “of no legal effect.” (Id. at p. 574.) In sum, where the minor faces no further confinement at the time an order of wardship is issued pursuant to Welfare and Institutions Code section 602, section 726, subdivision (c), does not apply, since there is no need to determine the maximum period of confinement.
At the dispositional hearing on June 25, 2007, the court did commit minor to serve 77 days in juvenile hall. However, the court awarded him credit for time served of 77 days with “balance to be served zero.” Therefore, as a result of the order of wardship issued on June 25, 2007, minor was not subject to any further period of confinement. Therefore, the juvenile court was not required by Welfare and Institutions Code section 726, subdivision (c), to set a maximum term of confinement when it issued the order of wardship on June 25, 2007, and a remand is therefore unnecessary.
B. Hearings Held August 21, 2007 and December 14, 2007
During a detention hearing held August 21, 2007, minor admitted committing another burglary. The juvenile court therefore removed him from the custody of his guardians, ordered him placed in a suitable youth facility, and set his maximum confinement time at eight years four months. Minor then left his placement without permission and, as a result, he was taken into custody once again. At a subsequent disposition hearing on December 14, 2007, the juvenile court once again set the maximum confinement time at eight years four months. The record does not show how this amount was calculated. However, minor believes the juvenile court calculated his maximum confinement time based on the upper term of six years provided in Penal Code section 461, subdivision 1. Under Penal Code section 461, subdivision 1, a first degree burglary offender can be sentenced to a term of two, four, or six years in state prison.
Assuming the juvenile court calculated his maximum confinement time based on the upper term of six years provided in Penal Code section 461, subdivision 1, minor argues this was error. He believes the juvenile court was limited to calculating his maximum confinement time using the middle term of four years based on Welfare and Institutions Code section 726, subdivision (c), and the Supreme Court’s decision in Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham.) Under Welfare and Institutions Code section 726, subdivision (c), a juvenile offender’s maximum confinement time cannot exceed “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.” In Cunningham, the Supreme Court concluded California’s determinate sentencing law (DSL) violates a criminal defendant’s right to a jury trial guaranteed by the Sixth and Fourteenth Amendments to the extent it allows trial courts to impose an aggravated upper prison term “based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham, supra, 127 S.Ct. at pp. 860, 871, italics added.) As a result, minor argues a similarly situated adult offender could have received no more than the middle term. He therefore argues we should correct the maximum confinement time by reducing it to the middle term of four years, which minor believes would result in a reduction of his total maximum confinement time from eight years four months to five years four months.
Defendant’s argument relies on an assumption he is similarly situated to an adult offender with no prior offenses falling within the “prior conviction” exception to Cunningham. In our view, minor’s argument is somewhat at odds with the facts. The juvenile court set minor’s maximum confinement time after he admitted his involvement in a burglary committed on or about August 15, 2007. At this time, minor was already on probation, and this was not his first offense. During a prior dispositional hearing held June 6, 2007, the juvenile court concluded minor committed a prior burglary, as well as an assault. Such aggravating circumstances fall within the “prior conviction” exception to Cunningham. Thus, if minor had been an adult offender, it is likely these reasons could have been used to justify imposing an upper term sentence without violating Cunningham. (See, e.g., People v. Black (2007) 41 Cal.4th 799, 813 [“the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term”].)
Minor acknowledges the issue he raises was rejected by the Second Appellate District in the case entitled In re Christian G. (2007) 153 Cal.App.4th 708, 712-715 (Christian G.). However, he disagrees with the reasoning and urges us not to follow it. Citing significant and well-established differences between adult and juvenile proceedings, the Second Appellate District in Christian G. concluded Cunningham does not apply to juvenile delinquency proceedings. Cunningham is based on a criminal defendant’s right to a jury trial, which is protected by the Sixth and Fourteenth Amendments. As recognized by the Second Appellate District, “[t]here is no right to jury trial in juvenile proceedings.” (Christian G., at p. 713.) Minor therefore “cannot, at the same time, claim both the rights attendant to adult sentencing proceedings (Cunningham) while reaping the fruits attending to juvenile proceedings (the opportunity to be released on parole years before an adult would be released).” (Ibid.) Like Welfare and Institutions Code section 731, subdivision (b), which was examined in Christian G., section 726, subdivision (c), expressly states juvenile courts are not required to follow procedures applicable to adult sentencing when exercising discretion to set a minor’s maximum term of confinement. (Welf. & Inst. Code, § 726, subd. (c); Christian G., supra, 153 Cal.App.4th at pp. 713-715.) Welfare and Institutions Code section 726, subdivision (c), specifically defines the maximum confinement time as “the longest of the three time periods set forth in paragraph (2) 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 or to consider time for good behavior . . ., plus enhancements which must be proven if pled.” We therefore cannot disagree with the conclusion of the Second District that Cunningham does not apply to juvenile delinquency proceedings.
Minor’s reliance on Cunningham is also inapposite for at least one other reason. The Legislature amended the DSL in response to Cunningham, and essentially eliminated the middle term as the statutory maximum absent aggravating factors. The amendments were effective March 30, 2007. (People v. Sandoval (2007) 41 Cal.4th 825, 836, fn. 2 (Sandoval).) As a result of the amendments, trial courts in adult adjudications now have the discretion to select among the lower, middle, and upper terms specified by statute without stating ultimate facts deemed to be aggravating or mitigating under the circumstances and without weighing aggravating and mitigating circumstances. (Id. at p. 847, citing Pen. Code, § 1170, subd. (c), as amended.) Rather, “a trial court is free to base an upper term sentence upon any aggravating circumstance that the court deems significant, subject to specific prohibitions.” (Id. at p. 848, citing Cal. Rules of Court, rule 4.420(c).) In Sandoval, supra, 41 Cal.4th at pages 845-857, our Supreme Court held it is constitutionally appropriate to apply the amended version of the DSL in all sentencing proceedings conducted after the effective date of the amendments. We are bound by the Sandoval decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Here, minor committed the new burglary offense on August 15, 2007, after the effective date of the amendments to the DSL. Therefore, under the amended DSL, the upper term of six years provided in Penal Code section 461, subdivision 1, for a first degree burglary was the “maximum term of imprisonment which could be imposed upon an adult convicted of the offense.” (Welf. & Inst. Code, § 726, subd. (c).) In sum, on the record before us, we cannot conclude the trial court made any error in setting minor’s maximum term of confinement.
II. Knowledge Element
As a condition of his probation, minor must “[n]ot associate with anyone who has possession of weapons of any kind, including but not limited to: firearms, firearm facsimile, nunchakus, martial arts weaponry, and knives.” The parties agree this condition is unconstitutionally vague because it does not contain a knowledge element.
In support of his argument, minor cites In re Sheena K. (2007) 40 Cal.4th 875. To withstand a constitutional challenge based on vagueness apparent on the face of a probation condition, the condition “ ‘must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated.’ ” (Id. at p. 890.) The minor in Sheena K. was placed on probation, subject to the condition that she not “associate with anyone ‘disapproved of by probation.’ ” (Ibid.) Our Supreme Court agreed with the minor that the condition was unconstitutionally vague and overly broad, because it did not include an express knowledge requirement. (Id. at pp. 890-891.) Based on Sheena K., we agree with the parties that the challenged condition is unconstitutionally vague or overly broad because it does not include an express knowledge requirement. We therefore agree minor is entitled to a modification of the condition.
DISPOSITION
The challenged condition of minor’s probation is modified to read as follows: “Minor shall not knowingly associate with anyone who has possession of weapons of any kind, including but not limited to firearms, firearm facsimile, nunchakus, martial arts weaponry, and knives.” In all other respects, the judgment is affirmed.
We concur: McKINSTER, J., GAUT, J.