Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JDSQ04000117
ROBIE, J.
Minor Anthony B. appeals from a dispositional order committing him to the Division of Juvenile Justice of the Department of Corrections and Rehabilitation (DJJ) for a period not to exceed seven years -- the upper term of six years for his first degree burglary offense and an additional year for a firearm enhancement. (Welf. & Inst. Code, §§ 602, 800.) Minor contends use of the upper term in calculating his maximum period of confinement violated his due process right and right to proof beyond a reasonable doubt. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
BACKGROUND
On May 6, 2004, a section 602 petition was filed alleging the minor received stolen property and committed petty theft. The minor admitted both counts and the receiving stolen property offense was reduced to a misdemeanor.
A second section 602 petition was filed on May 20, 2004, alleging the minor committed second degree burglary, committed petty theft, stole a vehicle, transported marijuana, received a stolen vehicle, attempted to evade pursuing officers, and resisted arrest. The minor admitted the second degree burglary, vehicle theft, and evading officers charges.
On June 23, 2004, the juvenile court adjudged the minor a ward of the court and placed him on probation, conditioned upon serving 90 days in juvenile hall.
A third petition was filed on August 10, 2004, alleging in two separate counts that the minor possessed a weapon in “Bi-County Juvenile Hall.” The minor admitted both allegations, which were reduced to misdemeanors, and was reinstated on probation with an additional 30 days in juvenile hall.
A fourth petition was filed on January 18, 2005, alleging the minor committed grand theft. The juvenile court found this allegation true after a jurisdictional hearing, and continued the minor on probation with the condition of serving 60 days in juvenile hall.
A fifth petition was filed on May 30, 2006, alleging the minor committed an assault with a deadly weapon, and did so to benefit a criminal street gang, and committed two separate batteries. The minor admitted one battery and the juvenile court continued him on probation with the condition he serve 59 days in juvenile hall.
A sixth petition was filed on July 27, 2006, alleging the minor committed petty theft and received stolen property.
A seventh petition was filed on August 14, 2006, and amended on September 1, 2006, alleging the minor committed an attempted robbery, an assault with a firearm, and first degree burglary of an inhabited house while personally armed with a firearm.
An eighth petition was filed on September 18, 2006, alleging the minor committed a battery.
The minor admitted the first degree burglary with the firearm use enhancement as a strike from the seventh petition and admitted the battery from the eighth petition. The sixth petition was dismissed.
On October 12, 2006, the juvenile court continued the minor as a ward and committed him to DJJ. The court calculated the minor’s maximum period of confinement as seven years, consisting of the upper term of six years for the residential burglary from the seventh petition and one additional year for being armed with a firearm. In determining the maximum period of confinement, the court found that the crime involved threat of great bodily injury, the victims were particularly vulnerable, and the minor’s prior sustained petitions were numerous and increasing in seriousness. The only factor in mitigation was that the minor had acknowledged wrongdoing early in the proceedings. The juvenile court dismissed the eighth petition in the interest of justice and imposed concurrent middle terms for all of the minor’s remaining adjudications.
DISCUSSION
I
Due Process
Relying on Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856], minor contends the juvenile court’s use of the upper term in calculating his maximum period of confinement violated his due process right and right to proof beyond a reasonable doubt. The Second Appellate District recently rejected this same argument in In re Christian G. (2007) 153 Cal.App.4th 708 (review den.) (Christian G.). We agree with Christian G.
Section 731, subdivision (c) (formerly section 731, subdivision (b)) provides: “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.) “As used in . . . Section 731, ‘maximum term of imprisonment’ means 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) [mitigating and aggravating circumstances] of Section 1170 of the Penal Code . . . plus enhancements which must be proven if pled.” (§ 726, subd. (c), italics added.)
Statutory amendments made during the pendency of minor’s appeal have no impact on the issues on appeal. (Stats. 2007, ch. 175, § 19, ch. 257, § 2.)
In Cunningham, the United States Supreme Court held that California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments” to the extent that it allows a judge to impose the upper term sentence “based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham v. California, supra, 549 U.S. at p. ___ [166 L.Ed.2d. at p. 864], overruling People v. Black (2005) 35 Cal.4th 1238 on this point.) From this holding, minor extrapolates that the maximum term for an adult offender is the middle term and, therefore, the middle term is also the maximum period for which he may be confined. We find his reasoning flawed.
First, even under Cunningham, depending on the facts found true by a jury, admitted by the defendant, or related to a prior conviction, any adult defendant may be eligible for the upper term. The upper term thus remains “the longest of the three time periods” that can be imposed on an adult defendant and is the proper term to impose as the theoretical maximum period of physical confinement time for a juvenile offender. (§ 726, subd. (c).)
Second, as explained in Christian G., the principles articulated in Cunningham with respect to California’s determinate sentencing law for adult offenders are inapplicable to the calculation of the theoretical maximum period of physical confinement for minors committed through the juvenile justice system. “A contrary interpretation of the statute would ignore the distinction between the determinate sentencing law, which provides for fixed terms designed to punish, and the juvenile justice system, which provides for indeterminate terms designed to rehabilitate.” (Christian G., supra, 153 Cal.App.4th at p. 715.) “‘The juvenile court’s determination must be tied to the purposes of the juvenile system, which include the protection of the public as well as the rehabilitation of the minor.’ [Citation.]” (Ibid.) Accordingly, the juvenile justice system gives the juvenile court discretion to impose less than the adult maximum term of imprisonment, based on the facts and circumstances of the case, without restricting the court to the aggravating and mitigating factors applicable to the sentencing of adult felons. (Id. at pp. 714-715.) Thus, the holding in Cunningham regarding California’s adult determinate sentencing scheme does not apply to California juvenile proceedings.
As in Christian G., “we use the phrase, ‘theoretical maximum term of physical confinement’ because the ‘actual term’ is indeterminate and is governed by certain guidelines. (In re Jovan B. (1993) 6 Cal.4th 801, 811, 816-818, [. . .].) In theory, there is no statutory minimum time of physical confinement before a juvenile offender can be released.” (Christian G., supra, 153 Cal.App.4th at p. 712, fn 1.)
Moreover, minor’s argument “weaves in and out of the juvenile and adult laws with considerable ease. He is not permitted to do so. There is no right to jury trial in juvenile proceedings. [Citation.] He cannot, at the same time, claim both the rights attendant to adult sentencing proceedings (Cunningham) while reaping the fruits attendant to juvenile proceedings (the opportunity to be released on parole years before an adult would be released).” (Christian G., supra, 153 Cal.App.4th at p. 713.)
Nor does the use of the upper term as the theoretical maximum period of physical confinement violate minor’s due process right of proof beyond a reasonable doubt. (See Re Winship (1970) 397 U.S. 358, 363-364 [25 L.Ed.2d 368, 375].) While former Penal Code section 1170, subdivision (b), required that additional factual findings in aggravation had to be found by the trial court before the upper term was imposed against an adult, section 726, subdivision (c), expressly provides that the longest period of physical confinement is the upper term, without additional findings of fact. Thus, there can be no violation of the right to proof beyond a reasonable doubt.
In response to Cunningham, the California Legislature amended section 1170 by urgency legislation effective March 30, 2007. (Stats. 2007, ch. 3, § 2 (Sen. Bill No. 40).)
II
Equal Protection
Minor also contends that equal protection demands he not be treated more severely than adults and, therefore, he is entitled to the procedural protections set forth in Cunningham. Minor was not denied equal protection.
Equal protection of the law requires that persons similarly situated receive like treatment under the law. (In re Gary W. (1971) 5 Cal.3d 296, 303-304.) But, “neither the Fourteenth Amendment of the Constitution of the United States nor the California Constitution (art. I, §§ 11, 21; art. IV, § 16) precludes classification by the Legislature or requires uniform operation of the law with respect to persons who are different.” (Id. at p. 303.)
As explained in In re Robert D. (1979) 95 Cal.App.3d 767, minor “has been adjudged, sentenced as a juvenile under juvenile court law.” (Id. at p. 774.) He does not stand in the same posture as an adult who has committed the identical offense but who was convicted in the criminal courts.
Minor “does not have all of the rights, protections, obligations, burdens, risk of jail or prison commitment as does an adult. He faces a juvenile justice system where rehabilitation is the announced legislative purpose. (Welf. & Inst. Code, § 202.) In contrast, the objective in adult incarceration is punishment. (Pen. Code, § 1170, subd. (a)(1); see, e.g., In re Issac G., [(1979)] 93 Cal.App.3d 917 [. . .].) [¶] Any parallel between the adult felon and the juvenile delinquent who have violated the same penal statute ends at the point of beginning of two separate, distinct punishment/ rehabilitation statutory schemes. The commitment of the youth, processed through the juvenile court, to the Youth Authority for the maximum period under Welfare and Institutions Code section 731 is in no way the equivalent of the commitment of the adult to prison for the same crime for the upper term based upon aggravation factors. [¶] When the juvenile is committed for the maximum period, he is in fact being committed for an indeterminate period. The adult sent to prison for the upper ‘term prescribed’ will be confined for that specific period less any behavior-performance credits. (Pen. Code, §§ 2930-2931.) At the heart of the determinate sentence law is the concept of a fixed term. [¶] In contrast, to the juvenile, the ‘maximum’ term is simply the outside time limit for a statutory program aimed directly at rehabilitation.” (In re Robert D., supra, 95 Cal.App.3d at pp. 774-775.)
“The statutory scheme and case authority not only justify but demand a differential treatment approach for youths. [Citations.]” (In re Robert D., supra, 95 Cal.App.3d at p. 778.) Thus, we reject minor’s equal protection challenge.
DISPOSITION
The dispositional order is affirmed.
We concur: BLEASE , Acting P.J., MORRISON , J.