Opinion
A151473
04-13-2018
In re ANGELO M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ANGELO M., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. J43779)
Angelo M. appeals from a juvenile court order declaring him a ward of the court and placing him on probation after he pleaded no contest to one felony count of conspiracy to commit misdemeanor battery, two misdemeanor counts of petty theft, and one misdemeanor count of receiving stolen property. On appeal, he contends that the conspiracy count should be reduced to a misdemeanor, his "conviction and sentence" for that count constitute cruel and unusual punishment, and the specification of a maximum term of confinement in the dispositional order must be stricken. We accept the Attorney General's concession that the maximum term of confinement must be stricken, but we otherwise affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
In December 2016, when Angelo was 15 years old, he and several other juveniles conspired to attack another juvenile. The group approached the victim near a school in Winters, and Angelo M. punched the victim in the face and stole his cell phone.
The facts in this paragraph are drawn from the detention report, which summarized the police report that Angelo stipulated provided the factual basis for his plea.
The next month, the Yolo County District Attorney filed a petition under Welfare and Institutions Code section 602 seeking to have Angelo declared a ward of the juvenile court. The petition alleged felony counts of second degree robbery, assault by means of force likely to cause great bodily injury, and conspiracy to commit aggravated assault based on the December incident.
These allegations were made under Penal Code sections 211 and 212.5, subdivision (c) (robbery), 245, subdivision (a)(4) (aggravated assault), and 182, subdivision (a)(1) and 245, subdivision (a)(4) (conspiracy to commit aggravated assault). The petition also alleged an infraction of possessing tobacco products or paraphernalia under Penal Code section 308, subdivision (b). All further statutory references are to the Penal Code unless otherwise noted.
In late February 2017, after the petition was amended to add a felony count of conspiracy to commit misdemeanor battery and a misdemeanor count of petty theft, Angelo pleaded no contest to the new counts, and the remaining counts were dismissed. The plea form he signed identified the conspiracy count as a felony, and the juvenile court noted the conspiracy count was a felony when accepting Angelo's plea. The case was transferred to Solano County for disposition.
The new allegations were made under sections 182, subdivision (a)(1) and 242 (conspiracy to commit battery) and 488 (petty theft).
A month later, before the dispositional hearing could occur, the Yolo County District Attorney filed another petition under Welfare and Institutions Code section 602 that alleged one count of second degree robbery and one count of attempted second degree robbery, both felonies, and two counts of petty theft, one count of receiving stolen property, and one count of providing a false identity to a police officer, all misdemeanors. One of the petty theft counts was based on an incident in mid-February, and the rest of the counts were based on incidents that had occurred within the previous week. Angelo pleaded no contest to the count of petty theft based on the February incident and the count of receiving stolen property. The second case was also transferred to Solano County for disposition.
These allegations were made under sections 211 and 212.5, subdivision (c) (robbery), 21a, 211, 212.5, subdivision (c), and 213, subdivision (b) (attempted robbery), 484, subdivision (a) and 488 (petty theft), 496, subdivision (a) (receiving stolen property), and 148.9, subdivision (a) (providing false identity).
The facts underlying these allegations are not relevant to the issues on appeal. --------
At the dispositional hearing, the Solano County juvenile court declared Angelo a ward of the court and placed him on probation with various conditions. The court deemed the conspiracy count a felony and the remaining counts misdemeanors. It also confirmed the parties' agreement that the maximum term of confinement was three years, eight months, and the dispositional order reflects that term.
II.
DISCUSSION
A. The Juvenile Court Did Not Err by Designating the Conspiracy Offense as a Felony.
Angelo claims that the juvenile court could not lawfully deem the conspiracy offense a felony, "because the underlying conspiracy in his case was a misdemeanor battery." We are not persuaded.
Angelo pleaded no contest to conspiracy to commit battery under section 182, which establishes the punishment for various conspiracy crimes. Under the specific provision Angelo was alleged to have violated, it is a crime for two or more people to conspire to commit "any crime," including any misdemeanor. (§ 182, subd. (a)(1); People v. Johnson (2013) 57 Cal.4th 250, 262.) A conspiracy to commit a misdemeanor is a "wobbler" and may be punished as either a felony or a misdemeanor. (People v. Mullins (2018) 19 Cal.App.5th 594, 611; People v. Tatman (1993) 20 Cal.App.4th 1, 7; People v. Proctor (1993) 18 Cal.App.4th 1055, 1061.) As Tatman explained, the rationale behind punishing a conspiracy to commit a misdemeanor as a felony is not that the conspiracy "elevate[s] the misdemeanor to a felony" but that "the unlawful agreement to commit a criminal offense . . . constitutes a felony" in light of the "greater potential threat to the public" posed by "collaborative criminal activities." (Tatman, at p. 8.)
Under Welfare and Institutions Code 702, "[i]f the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony." The statute imposes a mandatory duty on a juvenile court to exercise its discretion and expressly declare whether an offense is a felony or a misdemeanor, which "facilitate[es] the determination of the limits on any present or future commitment to physical confinement for a so-called 'wobbler' offense." (In re Manzy W. (1997) 14 Cal.4th 1199, 1204, 1206, 1209.) Relevant factors to consider include " 'the nature and circumstances of the offense, the [minor's] appreciation of and attitude toward the offense, or his [or her] traits of character as evidenced by his [or her] behavior and demeanor' " in court. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978 [addressing exercise of discretion to reduce wobbler under section 17, subdivision (b)]; see In re E.G. (2016) 6 Cal.App.5th 871, 881 [Welfare and Institutions Code section 702 intended to incorporate aspects of section 17, subdivision (b)].) We review the juvenile court's designation of a wobbler as a felony for an abuse of discretion. (See Manzy W., at p. 1207; Alvarez, at p. 977.)
Initially, the Attorney General suggests that Angelo cannot challenge the designation of the conspiracy offense as a felony because Angelo's plea of no contest reflected his understanding that the offense would be treated as a felony. A juvenile court is required to determine the nature of an offense even when, as here, the petition alleges that the offense was a felony and the minor pleads no contest to the offense as alleged. (See In re Kenneth H. (1983) 33 Cal.3d 616, 619-620; In re Ricky H. (1981) 30 Cal.3d 176, 191.) "[T]he preparation of a petition is in the hands of the prosecutor, not the court" (Ricky H., at p. 191), and a minor's admission to committing a felony does not prevent the court from deeming the offense a misdemeanor. But Angelo never argued below that the court should exercise its discretion to declare the conspiracy offense a misdemeanor, and his plea reflects his agreement with the People that the offense would be treated as a felony. He thereby waived his claim that the nature of the offense he conspired to commit precluded the court from declaring the conspiracy a felony.
Even if Angelo had not waived his claim, it fails on the merits. He recognizes that a conspiracy to commit a misdemeanor constitutes a felony in some instances, but he claims that the juvenile court erred by so designating the offense at issue. His first argument is that if a charging document refers to a conspiracy to violate a specific misdemeanor statute, that particular statute "is determinative of the penalty" for the conspiracy. In doing so, he utterly misreads the two primary authorities on which he relies. In Doble v. Superior Court (1925) 197 Cal. 556, the Supreme Court interpreted an earlier version of section 182 and concluded that the statute covered conspiracies to commit a misdemeanor. (Doble, at pp. 565-567.) But the Court did not, as Angelo claims, hold that the punishment for a conspiracy to commit a specified misdemeanor is the same as the punishment for the misdemeanor itself. To the contrary, Doble held that the punishment for conspiracy to commit a misdemeanor is set by the second paragraph of section 182, which at the time provided for " 'imprisonment in the county jail or state penitentiary not exceeding two years, or by a fine not exceeding five thousand dollars, or both.' " (Doble, at p. 560.) As Doble specifically observed, that paragraph thus "provides for the infliction of either a felonious or a misdemeanor penalty, in the discretion of the trial court." (Id. at p. 572.)
In the other case on which Angelo relies, In re Williamson (1954) 43 Cal.2d 651, the Supreme Court held that a defendant could not be charged under section 182 with a conspiracy to violate Business and Professions Code section 7028 because section 7030 of that code was "the exclusive penal provision governing a conspiracy to violate section 7028." (Williamson, at pp. 654-655.) The Court determined that charging such a conspiracy under section 182, "which authorizes the court to impose as punishment for a conspiracy to commit a misdemeanor" either a felony or misdemeanor sentence, would be inconsistent with section 7030's designation of a conspiracy to violate a provision of the Business and Professions Code as a misdemeanor in all cases. (Williamson, at pp. 654-655.) Thus, a conspiracy to violate Business and Professions Code section 7028 is a misdemeanor because section 7030 of that code deems it a misdemeanor, not because of anything in section 182. In short, the authorities Angelo cites only confirm that a conspiracy to commit a misdemeanor in violation of section 182 may be punished as either a felony or a misdemeanor.
Angelo also claims that, even if a conspiracy to commit a misdemeanor may be deemed a felony, this is appropriate only when the offense involves " 'collaborative criminal activities' with 'a greater potential threat to the public than individual acts' " because they involve "fairly sophisticated criminal planning and deceit." He points out that he was 15 years old at the time of the offense, did not have a criminal history, was facing difficult personal circumstances, and entered a plan with other juveniles to commit a relatively minor crime. Angelo argues that his conduct does not "amount to the type of collaborative criminal activity that the legislature intended to penalize with a felony conspiracy conviction," but as we have already discussed, he offers no authority to support the conclusion that his offense could not be deemed a felony as a matter of law. And to the extent he claims that the juvenile court abused its discretion in designating his offense as a felony, he fails to demonstrate that " 'the sentencing decision was irrational or arbitrary.' " (People v. Superior Court (Alvarez), supra, 14 Cal.4th at p. 977.) He entered a plan with several others to carry out a violent attack on a single victim, which he perpetrated, and he subsequently committed additional crimes with which he was charged. In light of these circumstances, we cannot say that the court erred by deeming the conspiracy offense a felony.
B. Angelo's Eighth Amendment Claim Fails.
Angelo also contends that his "felony conviction and sentence" of three years, eight months for the conspiracy offense constitute cruel and unusual punishment in violation of the Eighth Amendment. This claim is meritless.
"The Eighth Amendment prohibition on cruel and unusual punishment 'guarantees individuals the right not to be subjected to excessive sanctions.' " (People v. Franklin (2016) 63 Cal.4th 261, 273.) In evaluating a claim of excessive sanctions, "[a] reviewing court determines whether a particular penalty given ' "is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." ' " (People v. Cole (2004) 33 Cal.4th 1158, 1235.) The analysis requires a three-pronged approach, under which a court (1) evaluates " 'the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society,' " (2) "compare[s] the challenged punishment with punishments prescribed for more serious crimes in [its] jurisdiction," and (3) "compare[s] the challenged punishment to punishments for the same offense in other jurisdictions." (People v. Johnson (2010) 183 Cal.App.4th 253, 296-297.)
We agree with the Attorney General that Angelo forfeited his Eighth Amendment claim by failing to raise it below. Since "[c]ruel and unusual punishment arguments . . . require examination of the offense and the offender," they must first be raised in the trial court. (People v. Norman (2003) 109 Cal.App.4th 221, 229; see also People v. Burgener (2003) 29 Cal.4th 833, 886.)
Even if the claim was preserved, however, we would reject it on the merits. Angelo incorrectly claims that he was given a "sentence" of three years, eight months. The dispositional order's identification of that period as the maximum term of confinement was improper, as we discuss in section II.C. below, and Angelo was in fact placed on home supervision and ordered to serve 83 days in juvenile hall, with 53 days of credit for time served. This is hardly a harsh outcome in light of the offenses he committed, much less one that shocks the conscience. Moreover, even if it eventually becomes appropriate for the juvenile court to specify a maximum term of confinement, that term "rarely determines the actual period of confinement of a ward committed to [the Division of Juvenile Justice (DJJ)]. Rather, '[o]nce committed to [DJJ], the minor's actual term is governed by [DJJ] guidelines, within the statutory maximum." (In re A.G. (2011) 193 Cal.App.4th 791, 801.) Therefore, Angelo cannot demonstrate that he is entitled to relief under the Eighth Amendment based either on his current status or any additional confinement he may face.
C. The Maximum Term of Confinement Must Be Stricken.
Finally, Angelo claims, and the Attorney General concedes, that the maximum term of confinement indicated on the dispositional order must be stricken. We agree with the parties.
"If [a] 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 [Welfare and Institutions Code] 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." (Welf. & Inst. Code, § 726, subd. (d)(1).) This provision does not apply where a minor is placed on home supervision with a parent or guardian, and if "a juvenile court's order includes a maximum confinement term for a minor who is not removed from parental custody, the remedy is to strike the term." (In re A.C. (2014) 224 Cal.App.4th 590, 592.) Here, Angelo was placed in parental custody, but the dispositional order indicates a maximum term of three years, eight months. Therefore, we strike the term.
III.
DISPOSITION
The maximum term of confinement is stricken from the juvenile court's dispositional order. The judgment is otherwise affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Dondero, J. /s/_________
Banke, J.