Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JV119300
DAVIS, Acting P.J.
The minor, A.Z., admitted in Butte County Juvenile Court he came within the provisions of Welfare and Institutions Code section 602 because he committed two counts of robbery (Pen. Code, § 211) with an enhancement for personally using and discharging a firearm for each count (Pen. Code, § 12022.53, subd. (c)). The matter was transferred to Sacramento County, and the minor was committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (hereafter DJF) for up to 25 years, but not to exceed age 25.
Hereafter, undesignated section references are to the Welfare and Institutions Code.
On appeal, the minor contends the juvenile court (1) failed to exercise its discretion in setting the maximum term of confinement because of a mistake regarding the relevant sentencing range, and (2) failed to fully exercise its discretion regarding the firearm enhancement. We shall reject the contentions and affirm.
Background
Around 2:20 a.m. on February 11, 2006, the minor, age 15, and his accomplice, robbed two people in Chico. The minor was carrying a gun with a laser pointer taped to the barrel and pointed it at his victims, demanding their wallets, cash, and cell phones. When the cell phone of one of the victims rang, the minor threatened to shoot him if he answered it. The victims complied with the minor’s demands. However, when the minor ordered them to move to a darkened area, one of the victims struck the minor, who fell to the ground and lost control of his gun. After he regained control of the gun, the minor fired a shot at his victims, missing them. The minor and his accomplice fled the scene, but the minor was subsequently identified and arrested.
The minor has an extensive juvenile record, including sustained petitions for receiving stolen property and battery on a school official; 15 counts of second degree burglary; and possession of stolen property, as well as numerous probation violations. Evidence of the minor’s mild mental retardation was presented at the dispositional hearing. The juvenile court concluded placement in the DJF was appropriate for the minor in light of the danger he posed to society and the facilities for his rehabilitation there.
The juvenile court then set the maximum confinement time at DJF, stating: “The [c]ourt has the discretion to set the maximum possible confinement time in an amount which is less than the adult maximum term. In this case, the [c]ourt -- I think the triad is three, six or 11. I know the enhancement is 20. It’s 25 years. It’s five plus 20 for the 12022.53.”
After the juvenile court addressed other matters, the prosecution asked whether the 25-year maximum term applied to one or both robbery counts. The court responded: “It’s five plus 20 on [c]ount 1, which is 25, and then it’s going to be concurrent on [c]ount 2. That would be mid[]term concurrent on [c]ount 2.” The court subsequently stated: “Let’s say [c]ount 2 is concurrent, so it’s mid[]term concurrent, and then the 20 years is concurrent.” The prosecutor replied: “So it would be 23 years concurrent” and the court responded, “Yes.” The minor’s counsel did not object to the maximum term of confinement.
Discussion
I
The juvenile court’s statement that the sentencing triad for robbery is “three, six or 11” years is incorrect. The punishment for the minor’s offense of second degree robbery is “two, three, or five years” of imprisonment. (Pen. Code, § 213, subd. (a)(2).) The minor contends the juvenile court’s statement demonstrates it did not make an informed exercise of its discretion to set the maximum term of confinement. We disagree.
When placing a minor with the DJF, the juvenile court must also set the maximum term of confinement. Under section 731, subdivision (b), a minor “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 which brought or continued the minor under the jurisdiction of the juvenile court, which may not exceed the maximum period of adult confinement as determined pursuant to this section.”
Section 731 gives the juvenile court “discretion to impose less than the adult maximum term of imprisonment when committing a minor to [DJF] and to require the court to set that term of confinement based on the facts and circumstances of each case.” (In re Jacob J. (2005) 130 Cal.App.4th 429, 437 (Jacob B.).) If the record does not show the juvenile court exercised its discretion to set a maximum term of confinement under section 731, then the matter must be remanded for a new disposition. (Id. at p. 438.)
The juvenile court’s dispositional order does not present this problem. In setting the maximum term of commitment, the juvenile court expressly stated its “discretion to set the maximum possible confinement time in an amount of time which is less than the adult maximum term.” The maximum confinement time of 25 years was within the court’s discretion, as it equaled the maximum sentence for an adult convicted of the minor’s offense.
An upper term of five years for the robbery (Pen. Code, § 213, subd. (a)(2)) plus 20 years for the firearm enhancement (Pen. Code, § 12022.53, subd. (c)).
Relying on People v. Belmontes (1983) 34 Cal.3d 335 (Belmontes), the minor contends the juvenile court was operating under an erroneous understanding of the relevant law which prevented it from exercising informed discretion under section 731. In Belmontes, our Supreme Court stated: “A court which is unaware of the scope of its discretionary powers can no more exercise that ‘informed discretion’ than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record. [Citation.]” (Id. at p. 348, fn. 8.)
This rule does not apply to the juvenile court’s decision. Belmontes involved the issue of whether the trial court gave sufficient reasons for sentencing defendant to consecutive terms under Penal Code section 667.6, subdivision (c), rather than Penal Code section 1170.1. (Belmontes, supra, 34 Cal.3d at pp. 348-349.) Other decisions have addressed the issue of error in terms of how the error influences the court’s exercise of discretion. “[D]iscretion can only be truly exercised if there is no misconception by the trial court as to the legal basis for its action.” (In re Carmaleta B. (1978) 21 Cal.3d 482, 496.) Also, “[a]n erroneous understanding by the trial court of its discretionary power is not a true exercise of discretion.” (People v. Marquez (1983) 143 Cal.App.3d 797, 803.)
The juvenile court understood its discretion and pronounced a maximum term within its authority under section 731. Since any error by the juvenile court did not prevent it from rendering an authorized sentence, it is not the sort of fundamental error identified in the Belmonte footnote.
A new sentencing hearing is not required “whenever a sentencing court bases its determination on a factual premise which later turns out to be erroneous.” (People v. Ruiz (1975) 14 Cal.3d 163, 168.) Reversal is only required when the court’s decision is based “in significant part upon an erroneous impression of the defendant’s legal status,” because in those situations, “fundamental fairness requires that the defendant be afforded a new hearing and ‘an informed, intelligent and just decision’ on the basis of the facts. [Citation.]” (Ibid., original italics.)
The juvenile court’s misstatement regarding the sentencing range for robbery did not lead to an incorrect assessment of the minor’s legal status. Nor is there any reason to believe the maximum term of confinement set by the juvenile court reflected this error. The 25-year term imposed is the maximum adult term for the minor’s offense and enhancement and is also the term recommended in the probation report. Soon after making the misstatement regarding the sentence for robbery, the juvenile court correctly agreed with the prosecution that the middle term for robbery was three years.
A juvenile court has considerable discretion under section 731 to set the maximum term of confinement. Twenty-five years was the term it determined to be appropriate. Since this term did not reflect the erroneous statement concerning the possible term for robbery, the juvenile court committed no error in setting the maximum term.
II
The minor contends the juvenile court failed to exercise its discretion to depart downward from the 20-year enhancement for personal discharge of a firearm. He contends “the court treated the 20-year enhancement as a mandatory term that could not be altered when arriving at the maximum confinement time.” We disagree, finding the court was aware of and exercised its discretion under section 731.
The People contend the minor’s argument is foreclosed by In re Joseph M. (2007) 150 Cal.App.4th 889 (Joseph M.), which held that section 731’s “discretion to set the maximum confinement time at less than the lengthiest term an adult would serve for the same offense does not allow for the imposition of a term less than the minimum adult term.” (Id. at p. 896.) In Joseph M., the Court of Appeal ruled the juvenile court was therefore without discretion to decline to impose a 10-year enhancement pursuant to subdivision (b) of Penal Code section 12022.53. (Id. at p. 897.) The minor contends the holding of Joseph M. is wrong, and urges us to disregard this decision.
We do not need to decide whether to follow Joseph M. because it is distinguishable. In Joseph M., the juvenile court expressly declared it did not have the authority to impose less than the minimum adult sentence. (Joseph M., supra, 150 Cal.App.4th at p. 893.)
Here, the juvenile court made no such declaration when setting the minor’s maximum term of confinement. The only statement made by the court regarding its discretion was the correct statement that it had the discretion to set a term lower than the maximum adult term.
Section 731 “does not require a recitation of the facts and circumstances upon which the trial court depends, or a discussion of their relative weight[;] the record must reflect the court has considered those facts and circumstances in setting its maximum term of physical confinement even though that term may turn out to be the same as would have been imposed on an adult for the same offenses.” (Jacob J., supra, 130 Cal.App.4th at p. 438, original italics.)
The juvenile court complied with the mandate of section 731. The court explicitly stated its understanding of a juvenile court’s discretion under section 731, and chose to set the maximum confinement term at the maximum adult term for the minor’s offenses. Nothing more is required under the statute. Since the court was aware of and exercised its discretion, the minor’s contention is without merit.
Disposition
The judgment is affirmed.
We concur: RAYE, J., BUTZ, J.