Opinion
D070998
05-19-2017
In re A.A., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.A., Defendant and Appellant.
Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. J233505) APPEAL from an order of the Superior Court of San Diego County, Robert J. Trentacosta, Judge. Affirmed. Lindsey M. Ball, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Minor appeals from a juvenile court order committing him to the Department of Corrections and Rehabilitation, Division of Juvenile Justice, for up to seven years. He contends we must reverse the order because the court failed to consider the particularized facts and circumstances of his crimes in setting his maximum period of confinement. (See Welf. & Inst. Code, § 731, subd. (c).) As the record belies this contention, we affirm the order.
Further statutory references are to the Welfare and Institutions Code unless otherwise stated.
Section 731, subdivision (c) provides in part: "A ward committed to the Division of Juvenile Facilities 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 the Division of Juvenile Facilities 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...." (Italics added.)
Given our conclusion, we need not address whether minor forfeited this contention by failing to object on this basis below.
II
BACKGROUND
Minor admitted committing assault with a deadly weapon and personally using a deadly weapon during the commission of the offense. (Pen. Code, §§ 245, subd. (a)(1), 1192.7, subd. (c)(23).) Following a contested dispositional hearing, the court ordered minor committed to the Division of Juvenile Justice. In setting minor's maximum period of confinement, the probation officer's social study recommended the court exercise its discretion under section 726 to aggregate all of minor's prior true findings. (§ 726, subd. (d).) The court adopted this recommendation and set the maximum period of confinement at seven years.
At the time of the dispositional hearing, the minor had been a ward for several years and had prior true findings for three felonies and two misdemeanors.
Section 726, subdivision (d) provides in part: "(1) If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court. [¶] . . . [¶] (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, which includes any additional term imposed pursuant to Section 667, 667.5, 667.6, or 12022.1 of the Penal Code, and Section 11370.2 of the Health and Safety Code."
III
DISCUSSION
"When a minor within the jurisdiction of the juvenile court is committed to California's Department of Corrections and Rehabilitation, Division of Juvenile Justice, the juvenile court is required to indicate the maximum period of physical confinement. [Citation.] In setting that confinement period, which may be less than, but not more than, the prison sentence that could be imposed on an adult convicted of the same crime, the court must consider the 'facts and circumstances' of the crime." (In re Julian R. (2009) 47 Cal.4th 487, 491-492 (Julian R.), fn. omitted; §§ 726, subd. (d), 731, subd. (c).)
Here, the juvenile court did not state on the record it had considered the facts and circumstances of minor's crimes in setting his maximum period of confinement. Nonetheless, the court's minute order for the dispositional hearing states: "The Court understands its discretion to set the maximum term of confinement under subdivision (b) of the Welfare and Institutions Code Section 731. The Court is exercising that discretion to set the maximum term of confinement at 7 YEARS. In reaching this decision, the Court has considered all of the facts and circumstances of this case, including THE ENTIRE COURT FILE."
The reference to subdivision (b) of section 731 appears to be a clerical error. While the discretion to which the court refers once appeared in subdivision (b), it has appeared in subdivision (c) since 2007. (See Stats. 2007, ch. 257, § 2.) --------
In addition, the court's order committing minor to the Division of Juvenile Justice was made by completing a Judicial Council form created for that purpose. (See Julian R., supra, 47 Cal.4th at p. 498.) Paragraph No. 8 of the order states: "The maximum period of confinement is ... 7 YEARS." Paragraph No. 8 also states: "The court has considered the individual facts and circumstances of the case in determining the maximum period of confinement." We may presume from the court's completion of the appropriate Judicial Council commitment form "(1) the 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)), and (2) the court determined that [minor's] appropriate confinement period was a period equal to the maximum adult term." (Id. at p. 499, fn. omitted.) Indeed, the court's completion of the form makes its exercise of discretion evident. (Id. at p. 499, fn. 4.)
IV
DISPOSITION
The order is affirmed.
McCONNELL, P. J. WE CONCUR: HALLER, J. DATO, J.