Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Super. Ct.No. J180284 Marsha Slough, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Eric A. Swenson, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, J.
A Welfare and Institutions Code section 602 petition filed against minor and appellant Charles Y. (minor) alleged that he committed forcible rape (Pen. Code, § 261, subd. (a)(2), count 1) and a forceable lewd act upon a child. (Pen. Code, § 288, subd. (b)(1), count 2.) Minor admitted the allegation in count 2 and stipulated to a commitment to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ), formerly known as the California Youth Authority (CYA), in exchange for the dismissal of count 1. The juvenile court found the allegation admitted as true. The court committed minor to CYA for the maximum term of eight years. Minor filed a “motion to re-sentence” (the motion), based on the holding of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham). The court denied the motion.
All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted.
We will refer to the DJJ as the CYA in this opinion, since the record uses the term CYA.
On appeal, minor asserts that the court had the discretion, under section 731, subdivision (b), to set the maximum term of physical confinement at the upper term, based on the facts and circumstances of the case. However, he argues that his eight-year term is unconstitutional under Cunningham because the juvenile court did not find any aggravating factors true beyond a reasonable doubt to justify the upper term. Thus, he contends that the court erred in denying the motion. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On January 25, 2002, the victim, who was 11 years old, was walking down the street when minor and his friend called her over to their location (minor was 15 years old at the time). The victim knew them from school and the neighborhood. Minor kicked, slapped, and tripped the victim. After she fell to the ground, he and his friend dragged her behind a trash dumpster. The two boys pinned her to the ground and took turns having intercourse with her, against her will. When they were finished, they walked away and said, “Bye.”
A section 602 petition was filed alleging that minor committed forcible rape (Pen. Code, § 261, subd. (a)(2), count 1) and a forcible lewd act upon a child. (Pen. Code, § 288, subd. (b)(1), count 2.) Minor admitted as true the allegation contained in count 2 and stipulated to a commitment to CYA in exchange for the dismissal of count 1. On April 4, 2002, the court declared minor a ward of the court and committed him to CYA for a maximum period of eight years.
On March 6, 2007, minor filed a “motion to re-sentence,” under sections 731, subdivision (b) and 726, subdivision (a), based on the holding of Cunningham. Counsel for minor argued that aggravating factors justifying the upper term had to be proven beyond a reasonable doubt in a court trial. The People argued that Cunningham was premised on the right to a jury trial, and that there was no such right in juvenile court. The People further argued that the entire system of juvenile dispositions was fundamentally different from sentencing in criminal court for adults. The court denied the motion.
ANALYSIS
Minor contends the juvenile court should have sentenced him to the midterm of six years, not the upper term of eight years. He claims that, under Cunningham, supra, a minor may not be committed to CYA for the upper term unless the juvenile court determines the truth of aggravating factors beyond a reasonable doubt. Minor is wrong.
Section 731, subdivision (b) provides, in relevant part: “A minor committed to the Department of the Youth Authority may not be held in physical confinement for a period of time in excess of the maximum period 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. A minor committed to the Department of the Youth Authority 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 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.”
Since the time minor filed his opening brief, this subdivision has been amended and is now designated as subdivision (c), effective September 29, 2007. The content of section 731, subdivision (c) remains the same, with only a few amendments. Thus, to avoid confusion, we will refer to section 731, subdivision (b) in this opinion.
“The second sentence of section 731, subdivision (b), was added in 2003 by Senate Bill No. 459 . . . . (Stats. 2003, ch. 4, § 1.) It was intended ‘to give the juvenile court discretion to impose less than the adult maximum term of imprisonment when committing a minor to CYA and to require the court to set that term of confinement based on the facts and circumstances of each case. [Citation.]’ [Citation.] ‘[W]here, as here, the juvenile court sets the maximum term of physical confinement at CYA at the maximum term of an adult confinement, the record must show the court did so after considering the particular facts and circumstances of the matter before it.’ [Citation.]” (In re Christian G. (2007) 153 Cal.App.4th 708, 714 (Christian G.).)
The record here reflects that the court read the probation report and properly considered the particular facts and circumstances of the case before committing minor to CYA for a maximum term of eight years. Minor’s contentions that Cunningham applies to juvenile cases and that the potential maximum term of physical confinement for a juvenile must be based on facts found beyond a reasonable doubt are simply incorrect. The court in Christian G. explained, as follows: “In exercising its discretion whether to set the minor’s theoretical maximum term of physical confinement at less than the maximum term of imprisonment, the juvenile court is not required to follow the procedures applicable to adult sentencing. The second sentence of section 731, subdivision (b), ‘has not inserted the adult determinate sentencing scheme into the juvenile indeterminate disposition scheme. . . . Senate Bill No. 459 created the Youth Authority Board [now the Board of Parole Hearings], which decides the actual length of a minor’s confinement at CYA. [Citation.] While [the second sentence of] section 731, subdivision (b), does allow the court to set an earlier outside limit to the indeterminate period of confinement, based on the facts and circumstances of the case, the basic system for determining a minor’s actual length of stay, based on the administrative board’s decision, remains unchanged.’ [Citation.]” (Christian G.,supra, 153 Cal.App.4th at p. 714, italics added.)
“There is nothing in the legislation or its history to suggest the Legislature sought to make sweeping changes in the commitment of a minor to CYA from an indeterminate term to a determinate term, nor is there any provision that the Legislature is restricting the juvenile court to the adult sentencing triad. Proof the juvenile court’s decision is not tied directly to the adult system is found in the language utilized; the juvenile court is to consider the facts and circumstances of the matter, rather than being restricted solely to the aggravating or mitigating circumstance scheme for adults. 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.]” (In re Carlos E. (2005) 127 Cal.App.4th 1529, 1542, italics added.)
“Thus, in setting a minor’s theoretical maximum term of physical confinement based on the facts and circumstances of the case, section 731, subdivision (b), does not compel a juvenile court to adhere to the Cunningham restrictions or the aggravating/mitigating circumstances scheme applicable to the sentencing of adult felons. 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. ‘. . . 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.’” (Christian G., supra, 153 Cal.App.4th at p. 715, italics added.)
The People cite Christian G. in their brief, and minor, in his reply brief, just claims that Christian G. “was wrongly decided.” Minor has given us no compelling reason to part from Christian G.
Therefore, since Cunningham does not apply to juvenile dispositions, the juvenile court properly denied minor’s motion to have his sentence modified.
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P.J., McKINSTER, J.