Opinion
A118795
4-29-2008
In re CHARLES M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. CHARLES M., Defendant and Appellant.
NOT TO BE PUBLISHED
Charles M. appeals from a dispositional order adjudging him a ward of the court and removing him from his parents custody after he admitted to personally using a firearm to commit an assault. He contends that the matter should be remanded for a new disposition because the court abused its discretion in designating his theoretical maximum term of physical confinement in secure custody at 14 years. We disagree, and accordingly, affirm the dispositional order.
"In this opinion we use the phrase, `theoretical maximum term of physical confinement because the `actual term is indeterminate and is governed by certain guidelines. [Citation.] In theory, there is no statutory minimum time of physical confinement before a juvenile offender can be released." (In re Christian G. (2007) 153 Cal.App.4th 708, 712, fn. 1.)
FACTUAL AND PROCEDURAL BACKGROUND
This juvenile proceeding to declare Charles a ward of the court arose from an incident on February 14, 2007, when the then 15-year-old youth fired twice at a vehicle traveling in his neighborhood. The three people in the car were not hit, but the vehicle sustained two bullet holes, one on the trunk and the other on the drivers door.
In a Welfare and Institutions Code section 602 petition filed on May 10, 2007, and later amended on May 15, 2007, the People alleged that Charles had committed the felony offenses of assault with a firearm (counts 1, 2, 3) (Pen. Code, § § 245, subd. (a)(2)), possession of a concealable firearm (Pen. Code, § 12101, subd.(a)(1)) (count 4), and discharge of a firearm at "an inhabited dwelling vehicle" (Pen. Code, § 246) (count 5). Counts 1 through 3 included enhancement allegations of personal use of a firearm (Pen. Code, § 12202.5, subd. (a)), and criminal street gang activity (Pen. Code, §§ 186.22, subd. (b)(1)).
All further unspecified statutory references are to the Welfare and Institutions Code.
At a June 1, 2007, jurisdictional proceeding, after waiving his rights to a hearing, Charles admitted to the allegations of assault and the related firearm use enhancement in count one. The other counts and enhancements were dismissed. Before accepting Charles admission, the court informed him that it was possible he could be physically confined for a maximum term of 14 years.
After a dispositional hearing on July 16, 2007, the juvenile court adjudged Charles a ward of the court, removed him from the custody of his parents, and directed the probation officer to place him in a suitable foster home, private institution, or group home/county facility. The court also set Charles theoretical maximum term for physical confinement in secure custody at 14 years by aggregating the upper term of 4 years on the assault offense and the upper term of 10 years on the firearm use enhancement. Both counsel believed, however, that the court could set the maximum term at less than 14 years. The court was not inclined to do so, noting as aggravating circumstances the very serious nature of the offense, Charles was under the influence of alcohol at the time of the incident, and the record did not indicate a valid reason for his conduct. Charles counsel unpersuasively argued that Charles lack of a criminal history, his willingness to take responsibility for his conduct, and the circumstance of the offense as reported by him, warranted a maximum term of seven years based upon aggregating the middle terms of three years on the assault offense and four years on the firearm use enhancement.
DISCUSSION
Charles argues that the juvenile court abused its discretion in stating the theoretical maximum term of physical confinement based upon the upper terms for the assault and firearm use enhancement. He asks us to set aside the dispositional order and remand the matter for a new determination of the theoretical maximum term of physical confinement. We conclude Charles argument is unavailing.
Section 726 provides, in relevant part, that if a minor is removed from the custody of his parents as a consequence of a wardship proceeding under section 602, the courts dispositional 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." (§ 726, subd. (c).) The " `maximum term of imprisonment means the longest of the three time periods set forth in paragraph [(3)] of subdivision (a) of Section 1170 of the Penal Code, but without the need to follow the provisions of subdivision (b) of Section 1170 of the Penal Code or to consider time for good behavior or participation pursuant to Sections 2930, 2931, and 2932 of the Penal Code, plus enhancements which must be proven if pled." (§ 726, subd. (c).) California Rules of Court, rule 5.795(b), requires that, "If the youth is declared a ward under section 602 and ordered removed from the physical custody of a parent or guardian, the court must specify and note in the minutes the maximum period of confinement under section 726."
"The referenced provisions of the Penal Code section 1170 provide[d] that where the statute gives the trial court a choice of three terms, the court shall impose the middle term unless it makes findings of mitigation or aggravation to support imposition of the lower or upper term. [Citation.]" (In re Jose Z. (2004) 116 Cal.App.4th 953, 966.) By the time this juvenile proceeding was commenced, Penal Code section 1170, subdivision (b), had been amended to provide that the trial court had discretion, in the interests of justice, to impose any of the three terms provided by statute. (Stats. 2007, ch. 3, eff. March 30, 2007.) The change in the law does not affect our decision in this case.
At both the dispositional hearing and in its dispositional order, the juvenile court complied with its required obligations by specifying the theoretical maximum term of physical confinement at 14 years by aggregating the upper terms for the assault offense and the firearm use enhancement.
Charles argues, however, that in this case, the parties agreed the court could impose less than the theoretical maximum term of confinement, and the court engaged in a traditional analysis of weighing aggravating and mitigating factors that is used in sentencing adult offenders. He therefore asks us to review the courts decision for an abuse of discretion, and conclude that there was an abuse of discretion warranting remand for a new determination of the theoretical maximum term of confinement. Charles argument fails for two reasons.
First, neither the juvenile court nor the parties (by stipulation) could agree to the specification of a theoretical maximum term of physical confinement not authorized by law. (People v. Velasquez (1999) 69 Cal.App.4th 503, 505.) The Legislature specified in section 726 that the theoretical maximum term of physical confinement is to be set at the maximum sentence that could have been imposed upon an adult offender "under any circumstances." (In re Jose Z., supra, 116 Cal.App.4th at p. 966.) Thus, the juvenile court had no discretion other than to state that the theoretical maximum term of physical confinement is 14 years based upon the upper terms for the assault offense and the firearm use enhancement. (See In re George M. (1993) 14 Cal.App.4th 376, 380-381; In re Billy M. (1983) 139 Cal.App.3d 973, 982; In re James A. (1980) 101 Cal.App.3d 332, 336-339.) Had the juvenile court stated a theoretical maximum term of physical confinement of less than 14 years as requested by Charles, it would have been an unauthorized disposition subject to judicial correction whenever the error came to the attention of either the juvenile court or a reviewing court. (In re Ricky H. (1981) 30 Cal.3d 176, 190-191; see In re Eugene R. (1980) 107 Cal.App.3d 605, 618 & fn. 8, disapproved on others ground in In re Ricky H., supra, 30 Cal.3d at pp. 185-190.)
Second, "The statutory scheme is designed to determine the maximum period of imprisonment that could be imposed upon an adult. It is not designed to elicit reasons for indeterminate terms." (In re Jesse F. (1982) 137 Cal.App.3d 164, 169.) Thus, neither section 726, subdivision (c), nor California Rules of Court, rule 5.795(b), requires the juvenile court to give reasons for setting the theoretical maximum term of physical confinement based upon the upper terms. That in this case the juvenile court gave reasons for its decision does not warrant that we remand for a new determination. We are certain that on remand, the juvenile court would reach the same result omitting any reference or discussion of its reasons.
Because the juvenile court compiled with its statutory responsibilities, pursuant to section 726, subdivision (c), and California Rules of Court, rule 5.795(b), we affirm the dispositional order.
Section 731, subdivision (c), governs the setting of the theoretical maximum term of physical confinement for youths committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF). Because Charles was not committed to DJF, the provisions of section 731, subdivision (c), are inapplicable, and therefore, we need not address the parties arguments regarding that section.
DISPOSITION
The dispositional order filed on July 16, 2007 is affirmed.
We concur:
McGuiness, P. J.
Pollak, J.