Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J02-02478
McGuiness, P.J.
Antonio L. (appellant) appeals from an order of the Contra Costa Juvenile Court committing him to ten years four months in the Division of Juvenile Justice (DJJ) (formerly the California Youth Authority). He asserts the juvenile court: (1) improperly aggregated ten months of confinement time to his maximum term of confinement for the first four of his previously sustained petitions; (2) erred in calculating his custody credits; (3) violated his due process rights by failing to provide notice that confinement time for his previously sustained petitions could be aggregated in calculating the maximum term of confinement; and (4) erred in imposing eight months of confinement time for a violation of Vehicle Code section 23153, subdivision (a). We shall modify the judgment to reflect the correct maximum term of confinement and custody credits, and affirm the judgment as modified.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was removed from his parents’ home due to neglect and abuse and was placed in foster homes at various times between 1990 and 2000. Between 2002 and 2004, four delinquency petitions were filed against appellant, and the Contra Costa Juvenile Court found appellant had committed the following offenses: (1) exhibiting an imitation firearm (Pen. Code, § 417.4, December 10, 2002, petition); (2) petty theft (Pen. Code, §§ 484, 488, October 6, 2003, petition); and (3) battery (Pen. Code, § 242, April 28, 2004, and September 13, 2004, petitions). In each case, the juvenile court continued appellant’s status as a dependent and did not adjudge him a ward of the court.
On April 26, 2005, a delinquency petition was filed in San Bernardino County Juvenile Court (the fifth petition), and after a contested jurisdictional hearing, appellant was found to have committed the following offenses: (1) vehicular manslaughter (Pen. Code, § 192, subd. (c)(1), count 1); (2) evading a peace officer and causing death while driving (Veh. Code, § 2800.3, subd. (b), count 2); (3) driving with a blood alcohol level of over .08 percent and causing injury (Veh. Code, § 23153, subd. (b), count 3); and (4) driving under the influence of alcohol and causing injury (Veh. Code, § 23153, subd. (a), count 4). The matter was transferred to Contra Costa County, and at a dispositional hearing, the juvenile court committed appellant to six years in the DJJ and suspended the commitment pending successful completion of placement in a locked facility. The juvenile court dismissed appellant’s dependency case and adjudged appellant a ward of the court.
Appellant appealed from the dispositional order, and in an unpublished opinion, we remanded the matter to the juvenile court to determine whether the wobbler offenses were misdemeanors or felonies, but otherwise affirmed the order. (In re Antonio L., A112419.) On remand, the juvenile court designated the wobbler offenses as felonies.
We hereby grant respondent’s unopposed request filed September 11, 2007 asking this court to take judicial notice of (1) our opinion and the opening and responding briefs in In re Antonio L., A112419 and (2) the juvenile court’s August 24, 2007 order on remand designating the wobbler offenses as felonies.
On June 6, 2006, a notice was filed under Welfare and Institutions Code section 777, alleging appellant had left the locked facility without permission, and that his whereabouts were unknown. A bench warrant issued for his arrest. On June 13, 2006, a delinquency petition was filed in the Alameda County Juvenile Court (the sixth petition, which is the subject of this appeal), alleging appellant committed robbery (Pen. Code, § 211, count 1), provided officers with false identification (Pen. Code, § 148.9, count 2), and used a deadly weapon during the robbery (Pen. Code, § 12022, subd. (b)(1)). At a contested jurisdictional hearing, the victim testified that appellant pointed a silver gun at him, took his wallet, money clip and keys, punched the victim in his face and “ran off.” A BART police officer testified that appellant provided a false name and date of birth.
All subsequent statutory references are to the Welfare and Institutions Code unless otherwise stated.
On July 6, 2006, the court sustained the petition and transferred the matter to Contra Costa County. The juvenile court committed appellant to the DJJ. It selected the vehicular manslaughter count from the fifth petition as the principal term, set the maximum confinement term at ten years four months and awarded a custody credit of 726 days.
II. DISCUSSION
A. The juvenile court erred in adding ten months of confinement time for the first four of appellant’s previously sustained petitions.
When a juvenile court sustains criminal violations resulting in an order of wardship (§ 602) and removes a minor from the custody of his parent, it must specify the maximum confinement term, which must not be longer than the maximum term of imprisonment an adult would receive for being convicted of the same offense or offenses. (§ 726, subd. (c).) Section 726, subdivision (c), permits the juvenile court, in its discretion, to aggregate terms on the basis of multiple counts or petitions when computing the maximum confinement term. (In re Adrian R. (2000) 85 Cal.App.4th 448, 454.) When aggregating multiple counts or petitions, the maximum confinement term is calculated by adding the upper term of the principal offense to one-third of the middle term for each of the remaining subordinate felonies or misdemeanors. (In re Deborah C. (1981) 30 Cal.3d 125, 140.)
The juvenile court here determined that appellant’s maximum confinement term for the sixth petition was ten years four months, calculated as follows: the principal term of six years for count one of the fifth petition (vehicular manslaughter), plus subordinate terms of two months for the first petition (exhibiting an imitation firearm), two months for the second petition (petty theft), two months for the third petition (battery), four months for the fourth petition (battery), eight months for count four of the fifth petition (driving under the influence of alcohol and causing injury), 16 months for count two of the fifth petition (evading a peace officer and causing death while driving), one year for count one of the sixth petition (robbery), two months for count two of the sixth petition (false identification to a police officer) and four months for the dangerous weapon enhancement on the sixth petition.
Appellant contends the juvenile court erred by including subordinate terms totaling ten months for the first four petitions because the juvenile court did not adjudge him a ward of the court when it sustained the first four petitions, instead continuing his status as a dependent. We agree the juvenile court improperly included the first four petitions in its calculation.
We reject respondent’s contention that appellant is precluded from raising this issue for the first time on appeal. (See People v. Scott (1994) 9 Cal.4th 331, 354 (Scott) [no waiver of “mandatory provisions governing the length of confinement”]; see also In re Luisa Z. (2000) 78 Cal.App.4th 978, 982.)
The jurisdiction of the juvenile court involves three categories of children: (1) section 300, which covers dependent children who are victims of abuse or neglect; (2) section 601, which covers status offenders who are habitually disobedient or truant; and (3) section 602, which covers delinquent children who commit crimes. (In re Donald S. (1988) 206 Cal.App.3d 134, 137.) The juvenile court is permitted to maintain jurisdiction under only one of these categories at any given time. (Id. at pp. 138-139; see also § 241.1.) Accordingly, at a dispositional hearing, the juvenile court may either place the minor on probation without adjudging the minor a ward of the court (§ 725, subd. (a)) or declare the minor a ward of the court (§ 725, subd. (b)). If the juvenile court elects to place the minor on probation without adjudging him a ward of the court under section 725, subdivision (a), it may not order the minor to be confined in a locked facility, such as juvenile hall. (In re Trevor W. (2001) 88 Cal.App.4th 833, 838-839.) Thus, the concept of “maximum term of confinement” set forth in section 726, which limits the length of time a minor may be confined, does not apply to a minor who is not adjudged a ward of the court. (In re Harm R. (1979) 88 Cal.App.3d 438, 442 [section 726 does not apply to minors who are not wards of the court “because there is simply no ‘maximum term’ in an adult court for dependent children or status offenders”].)
Section 241.1, subdivision (a), provides in part: “Whenever a minor appears to come within the description of both Section 300 and Section 601 or 602, the county probation department and the child welfare services department shall, pursuant to a jointly developed written protocol described in subdivision (b), initially determine which status will serve the best interests of the minor and the protection of society. The recommendations of both departments shall be presented to the juvenile court with the petition that is filed on behalf of the minor, and the court shall determine which status is appropriate for the minor.”
Here, it is undisputed that when the juvenile court sustained the first four petitions, it placed appellant on probation under section 725, subdivision (a), and did not adjudge him a ward of the court. Instead, it continued appellant’s status as a dependent under section 300 and placed him in group homes and other, unlocked facilities. It was not until the juvenile court sustained the fifth petition that it finally dismissed appellant’s dependency case, adjudged him a ward of the court, and placed him in a locked facility. Because the first four petitions could not have resulted in orders confining appellant, the juvenile court was not authorized to use those petitions to aggregate the maximum term of confinement.
Our conclusion is consistent with the language of section 726, subdivision (c), which provides in part, that “[i]f 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.” (Emphasis added.) The language we have italicized indicates there must be a previously sustained petition “adjudging the minor a ward” in order to aggregate a current term with a previous term. Thus, in calculating the maximum term of confinement, the juvenile court is authorized to aggregate confinement time only for petitions that were previously disposed of by an adjudication of wardship.
Respondent asserts that because appellant violated a condition of probation by committing a new offense each time probation was imposed, the “manifest purpose” of section 725, subdivision (a), requires that the first four petitions be included in calculating the maximum term of confinement. Respondent cites, and we have found, no authority in support of this position.
In any event, even if aggregation for the first four petitions were proper based on appellant’s probation violation, the juvenile court was precluded from aggregating for the additional reason that at the time the maximum confinement term was calculated, appellant had already served the maximum confinement time on his first four petitions. The record reflects that pending resolution of the first four petitions, appellant was confined in juvenile hall or another locked facility for a period of time that exceeded the maximum time he could have been confined on the first four petitions.
Respondent notes, and appellant does not dispute, that appellant was confined for a total of 432 days on the first four petitions. The record reflects that the actual confinement time may have been 442 days. In either event, appellant was confined on the first four petitions for longer than what the maximum confinement term would have been on those petitions.
In re Bryant R. (2003) 112 Cal.App.4th 1230, 1234-1235 (Bryant R.) involved a similar situation in which the minor had exhausted his available confinement time on the first two of his six petitions before the subsequent petitions were filed. In affirming the juvenile court’s order aggregating the available confinement time from only the last four petitions, Bryant R. stated: “[E]ven an adult convicted of those very same six offenses would not be required to serve additional time on his first two offenses if that adult served his entire sentence on the first two offenses before being convicted of the subsequent four offenses. To require a minor to do so would appear to us to be ignoring the objective of section 726” that a minor may not be confined for longer than the maximum term of imprisonment that could be imposed upon an adult convicted of the same offense. (Bryant R., supra, 112 Cal.App.4th at p. 1236.) Similarly, here, because appellant had exhausted his confinement time on the first four petitions before the subsequent petitions were filed, the juvenile court erred in using the confinement time on the first four petitions to aggregate the maximum term of confinement. Accordingly, the juvenile court’s order shall be modified to reflect the proper maximum term of confinement of nine years six months.
B. Appellant is not entitled to custody credits for the time he was confined pending resolution of the first four petitions.
Appellant asserts the juvenile court erred in awarding only one day of custody credit for the time he initially spent in juvenile hall on his first petition because he was actually confined in juvenile hall for 124 days before being placed in a group home. Respondent does not appear to dispute that appellant was confined for 124 days from his detention on December 8, 2002, until he was released to a group home on April 11, 2003, but asserts the juvenile court should not have granted any custody credit to appellant for the time he was confined pending resolution of the first four petitions. We conclude the juvenile court was not authorized to grant any custody credits to appellant for the time he was confined pending resolution of the first four petitions.
Neither party raised the issue of custody credits below; however, this issue may be raised for the first time on appeal. (In re Antwon R. (2001) 87 Cal.App.4th 348, 350-353 [Penal Code section 1237.1, which precludes a defendant from appealing a conviction on the ground that custody credits were miscalculated, unless the claim was presented below, does not apply to juvenile appeals]; Scott, supra, 9 Cal.4th at p. 354 [no waiver of mandatory provisions governing length of confinement]; People v. Jack (1989) 213 Cal.App.3d 913, 915-916 [miscalculation of custody credits results in an unauthorized sentence that may be corrected at any time]; see also People v. Rowland (1988) 206 Cal.App.3d 119, 126 [the People may challenge an unlawful sentence on a defendant’s appeal].) Further, “[a]uthority exists for an appellate court to correct a sentence that is not authorized by law whenever the error comes to the attention of the court, even if the correction creates the possibility of a more severe punishment.” (In re Ricky H. (1981) 30 Cal.3d 176, 191.)
When a juvenile court elects to aggregate a minor’s period of physical confinement on multiple petitions pursuant to section 726, it must also aggregate the predisposition custody credits attributable to those petitions. (In re Eric J. (1979) 25 Cal.3d 522, 536.) Conversely, when the juvenile court does not use previous petitions to aggregate the maximum term of confinement, it may not award any custody credits that are attributable to those petitions. (In re Ricky H., supra, 30 Cal.3d at p. 185 [juvenile court was not authorized to award custody credit for days minor was confined on his first petition, where the court did not aggregate the confinement time on the first petition in calculating the maximum confinement term].) Having held that the juvenile court erred in aggregating the periods of confinement on appellant’s first four petitions, we also conclude the court erred in awarding appellant custody credits for the days he spent in custody pursuant to those petitions.
Respondent asserts, and the record reflects, that appellant was confined for a total of 407 days on his fifth and sixth petitions as of August 29, 2006. Appellant does not dispute that this accurately reflects the number of days he was confined on these petitions. Thus, the juvenile court’s order shall be modified to reflect that appellant was entitled to 407 days of custody credit as of August 29, 2006.
C. The juvenile court did not commit prejudicial error in failing to provide notice that confinement time for previously sustained petitions could be aggregated.
Appellant asserts the juvenile court violated his due process rights by failing to notify him that confinement time for his previously sustained petitions could be aggregated. Assuming, without deciding, that appellant has not forfeited this issue, we conclude the juvenile court’s failure to provide notice of its intent to aggregate was not prejudicial error.
In light of our conclusion that the first four petitions could not have been used to aggregate the maximum confinement term, we construe appellant’s argument as challenging the juvenile court’s failure to notify him that the confinement time on his fifth petition could be aggregated.
“[W]here the prior offenses are to be considered to aggregate the maximum term to extend it beyond that which could be imposed for the new offense, due process requires notice of the juvenile court’s intention in order to provide the minor with a meaningful opportunity to rebut any derogatory material within its prior record. [Citations.]” In re Michael B. (1980) 28 Cal.3d 548, 553.) “Absent the filing of a petition containing such notice, the court is limited to the maximum period of confinement of the new offense(s) set forth in the section 602 petition.” (Id. at p. 554.)
Any error in failing to provide notice of the intent to aggregate is subject to a harmless error analysis. (In re Steven O. (1991) 229 Cal.App.3d 46, 57 (Steven O.).) Steven O. held that although the petition did not provide the minor with the required notice, there was no prejudice because (1) the minor denied the petition and the matter proceeded to a fully contested jurisdictional hearing, (2) the probation officer prepared a written report prior to the dispositional hearing expressly recommending aggregation, (3) neither the minor nor his counsel registered any objection to or surprise with this recommendation, implying they “knew and understood the court’s power and intention to aggregate time,” and (4) the only argument they presented regarding disposition was that the minor should be committed to a local camp rather than to the DJJ. (Ibid.) Steven O. therefore concluded that “[t]he error in failing to include the notice in the supplemental petition was harmless beyond a reasonable doubt. [Citations.]” (Ibid.)
Similarly, here, the sixth petition did not provide notice to appellant of an intent to rely upon any previous petition, including the fifth petition, to aggregate the maximum term of confinement. However, as in Steven O., appellant did not admit the petition under the impression that the maximum confinement time he was facing was that for the current offense. Instead, he denied the petition and had a fully contested jurisdictional hearing. The probation officer’s report and recommendation, which was prepared prior to the dispositional hearing, described in detail the offenses on all previously sustained petitions and the disposition on each petition, and stated that the “maximum custody time [for] all offenses” was “10 years, 9 months.” Also before the court at the dispositional hearing was a proposed order (which appears to also have been prepared by the probation officer) showing that all previously sustained petitions were used in calculating the maximum confinement term of “ten years and four months.”
The maximum confinement term of ten years nine months was later corrected to what is reflected in the commitment order—ten years four months.
Further, neither appellant nor his counsel objected to or expressed any surprise with the calculation of the maximum confinement term. They argued only that (1) the robbery count from the sixth petition, which carries an upper term of five years, should be used as the principal term, (2) the middle or lower term on the principal offense should be used to calculate the maximum confinement term, and (3) appellant has special needs and should be placed in a less restrictive facility.
Moreover, based on the record before us, we do not see how appellant could have shown that the fifth petition should not have been used to aggregate the maximum term of confinement. The record reveals that at the time of the dispositional hearing, appellant was a 16-year old minor who had continued his delinquent conduct despite almost four years of intervention by the police, probation officers, the juvenile court and confinement in juvenile hall or other locked facilities. At disposition, the court considered the circumstances and gravity of the current offenses, as well as appellant’s past history and his special needs. The court recalled that at disposition on the fifth petition, it gave appellant another chance, and found he “did not take advantage of the opportunity,” and “[i]nstead, . . . went out and . . . committed a new, very, very serious offense.” The court informed appellant that it was going to commit him to the DJJ “to keep everybody else safe until you understand that you need to control your actions and become a productive member of society.” The court acknowledged that it had discretion to reduce the maximum term of confinement, but rejected appellant’s request to use the robbery count as the principal offense or to otherwise reduce the maximum confinement term, and indicated its clear intention to impose the maximum confinement term recommended by the probation officer. The notice error was harmless beyond a reasonable doubt.
D. The juvenile court did not err in imposing eight months of confinement time for a violation of Vehicle Code section 23153, subdivision (a).
As noted, the maximum term of confinement is calculated by adding the upper term of the principal offense to one-third of the middle term for each of the remaining subordinate felonies or misdemeanors. (In re Deborah C., supra, 30 Cal.3d at p. 140.) Appellant asserts the juvenile court should have added only four months of confinement time for count four of the fifth petition (violation of Vehicle Code section 23153, subdivision (a)) because the middle term for a violation of that section is one year. We disagree.
Vehicle Code section 23554 provides that a person who violates Vehicle Code section 23153 “shall be punished by imprisonment in the state prison, or in a county jail for not less than 90 days nor more than one year . . . .” (Emphasis added.) Penal Code section 18 provides that any offense that is “to be punished by imprisonment in state prison, is punishable by imprisonment in any of the state prisons for 16 months, or two or three years . . . .” (Emphasis added.) The middle term for a violation of Vehicle Code section 23153, subdivision (a), is therefore two years, and one-third of two years is eight months. The juvenile court did not err in imposing eight months of confinement time for a violation of Vehicle Code section 23153, subdivision (a).
III. DISPOSITION
The judgment is modified to reflect a maximum confinement term of nine years six months and 407 days of custody credit. As modified, the judgment is affirmed.
We concur: Pollak, J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.