Opinion
C087638
07-19-2021
In re J.G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.G., Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. J37065
BLEASE, Acting P. J.
A minor can be committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF) only if the juvenile court finds the minor committed an offense eligible for DJF commitment. In order to be eligible, an offense must be one of the offenses listed in either Welfare and Institutions Code section 707, subdivision (b) or Penal Code section 290.008, subdivision (c), and that offense is only eligible if it was “the most recent offense alleged in any [section 602] petition and admitted or found to be true by the court.” (§ 733, subd. (c); hereafter § 733(c)]; In re D.B.(2014) 58 Cal.4th 941, 944 (D.B.); In re Greg F. (2012) 55 Cal.4th 393, 400 (Greg F.).) A juvenile court may also “dismiss [a section 602] petition, or may set aside the findings and dismiss the petition, if the court finds that the interests of justice and the welfare of the person who is the subject of the petition require that dismissal.” (§ 782.) If the “structured institutional environment and special programs available only at the DJF” would best serve a minor's needs, and if “the severity of a minor's offenses, and the minor's own special needs, call for a disposition that includes DJF”-then the “ ‘interests of justice and the welfare of the minor' ” may both point toward a DJF commitment. (Greg F., at p. 417; § 782.)
Undesignated statutory references are to the Welfare and Institutions Code.
Thus, notwithstanding the seemingly absolute rule of section 733(c), when a minor is placed on probation for a duly adjudicated DJF-eligible offense, and a new section 602 petition alleges a subsequent non-DJF-eligible offense, the juvenile court may use section 782 to dismiss the new petition and commit the minor to DJF based on the prior offense. (Greg F., supra, 55 Cal.4th at p. 400.)
This case presents an issue not addressed in Greg F., whether section 782 permits the court to impose a DJF commitment after dismissing previously adjudicated petitions alleging non-eligible offenses. (See Greg F., supra, 55 Cal.4th at p. 415.) We conclude that it does under the particular facts of this case, where the disposition was not part of the plea agreement in the dismissed cases and where the juvenile court had no alternative to DJF commitment other than warehousing the minor in juvenile hall until he turned 18.
On February 1, 2017, the minor J.G. was declared a ward of the juvenile court and placed on probation after the juvenile court previously sustained a section 602 petition alleging the minor committed unlawful possession of a firearm, brandishing a firearm, assault by means likely to produce great bodily injury with a personal use of a deadly weapon allegation, possession of a weapon on school grounds, providing false information to a police officer, and possession of marijuana. (Pen. Code, §§ 29805, 417, sub. (a)(2), 245, subd. (a)(4), 626.10, subd. (a)(1), 148.9, subd. (a), 12022, subd. (b)(1); Health & Saf. Code, § 11357, subd. (b)(1).)
On June 14, 2017, the minor admitted violating his probation and admitted allegations in a subsequent section 602 petition that he committed giving false information to an officer and unlawful possession of ammunition. (Pen. Code, §§ 148.9, 30305, subd. (a)(1).) On July 5, 2017, defendant admitted an allegation in another subsequent section 602 petition that he committed first degree burglary. (Pen. Code, § 459.) The juvenile court continued defendant on probation at the July 19, 2017 dispositional hearing.
After the minor admitted to another probation violation, the juvenile court subsequently granted the People's motion over the minor's objection and dismissed the two subsequent petitions as well as the possession of a weapon, providing false information, and possession of marijuana allegations in the first petition. At a later disposition hearing, the juvenile court committed the minor to the DJF and set a maximum term of 11 years two months.
On appeal, the minor contends the postdisposition dismissals violated his due process rights, the juvenile court failed to state an adequate reason for the dismissals on the record, and the maximum term is erroneous. Agreeing only with the last two contentions, we remand for the trial court to correct its failure to state the reasons for the dismissal in a minute order. We shall also modify the maximum term and affirm the judgment as modified.
BACKGROUND
December 14, 2016 Section 602 Petition
1. Counts One and Two
On September 6, 2016, Amanda S. returned home from work to find her front door was kicked in, with two televisions and a gaming system missing from her home. She confronted the minor about what happened later that day. Police were called as the confrontation became contentious. Amanda told the police she was in an altercation with two males, one of whom threatened her with a firearm pulled from his waistband. Another witness to the incident reported that the minor said, “Don't make me pop off. I'll spray you with my gun, Bitch.” A search of a nearby residence found a firearm, which Amanda identified as the one she saw in the confrontation.
2. Counts Three and Four
Bradley H. was playing basketball with some friends on October 21, 2016, when a group of kids walked up and asked, “Have you guys seen any fucking clowns?” Bradley and his group replied, “No, ” and asked the group how old they were. The kids said 15 to 17 and walked away.
Fifteen minutes later, J.G., one of the members of the group of kids, returned and pointed a pellet gun at Bradley's head, saying, “You think this is fucking funny?” As Bradley raised his hand and told J.G. no harm was intended, J.G. shot Bradley in the face. Bradley was injured by a pellet, which broke through a bone and lodged in his nasal cavity. Surgery was needed to remove the pellet.
3. Counts Five and Six
On the evening of November 7, 2016, Marianne B. found her granddaughter and J.G. at her doorstep; J.G. carried a box filled with what he said was Mason jars. The following morning, law enforcement found J.G. and another juvenile at the residence along with almost five pounds of unprocessed marijuana, a quantity of trimmed marijuana, and marijuana edibles. When asked for his name, J.G. gave a false answer to law enforcement. He later revealed his actual name and date of birth.
On January 10, 2017, the juvenile court sustained all of the allegations in the original section 602 petition stemming from these incidents. The January 26, 2017 dispositional report related J.G.'s prior delinquency history, which included sustained allegations of three felony and various misdemeanor offenses in proceedings on June 18, 2014, September 30, 2015, and February 1, 2016, along with five separate violations of probation on various dates. J.G. received 10 minor and one major rules infractions since his most recent detention at juvenile hall. The report recommended the 15-year-old J.G. be placed in the Minor Adjustments Program (MAP) at disposition, as it was designed to help J.G. and his family to regain and enhance family stability.
At the February 1, 2017 disposition hearing, the juvenile court informed J.G., “I am about at the end of my rope. I'll do this program. You blow this, I'm sure you understand the other options I have available to me. I don't want to do it, but I'll do it in a cold heartbeat if you thumb your nose at this Court or society one more time.” The court then placed J.G. on probation, subject to MAP, in accordance with the probation department's recommendation.
The Dismissed Subsequent Petitions
On May 17, 2017, a home was broken into and $2, 600 worth of firearms were stolen. J.G.'s fingerprints were found on one of the windows at the home. J.G. was subsequently found in possession of a loaded.40-caliber magazine that matched an item stolen during the burglary.
J.G. was in a vehicle that was subjected to a traffic stop on May 31, 2017. When asked to identify himself, J.G., who had an outstanding warrant, gave a false name. A search incident to arrest found honey oil, cigarettes, the.40-caliber magazine, and three baggies of marijuana on the minor.
On June 6, 2017, the People filed a subsequent section 602 petition alleging J.G. committed providing false information to an officer and unlawful possession of ammunition. J.G. admitted to violating his probation and admitted to both counts on June 14, 2017. There was no agreement regarding the disposition.
On June 15, 2017, the People filed another subsequent petition alleging J.G. committed residential burglary. J.G. admitted the allegation on July 5, 2017. As with the prior admission, there was no agreement regarding the disposition. The July 14, 2017 disposition report recommended probation with MAP. The juvenile court reinstated J.G. on probation with MAP at the July 19, 2017 disposition hearing.
On January 18, 2018, the People alleged J.G. violated his probation by removing his GPS monitor and by possessing a controlled substance. J.G. admitted violating his probation on February 7, 2018.
On February 1, 2018, the People filed a motion to dismiss the June 6, 2017 and June 15, 2017 petitions as well as counts four through six of the December 14, 2016 petition so that J.G. would be rendered eligible for DJF commitment.
At a February 18, 2018 hearing on the motion, J.G.'s counsel opposed the motion, stating DJF commitment was only possible if the most recent offense was eligible for DJF, which was not the case here. Counsel also stated: “I think if the standard on which the Court were to decide this was in the best interests of the minor, there would be no problem sending [J.G.] to the Department of Juvenile Justice. But unfortunately, that's not the way the law is written.” The prosecutor responded that the motion was filed because the People thought DJF commitment really was in J.G.'s best interests, as it provided a better chance to rehabilitate him than continuing to release him on MAP until he commits a more serious offense that will cause him to be prosecuted as an adult, noting they were running out of options for J.G., as he had been on MAP twice and likely was not suitable for Camp Condor. The juvenile court took the matter under submission.
At a February 28, 2018 hearing, the juvenile court informed J.G. it was considering continuing the matter for 90 days so he could be evaluated for potential suitability for placement at camp. The court told J.G. that if it were to get a negative report from juvenile hall any time during the 90 days, then its decision would be “very, very easy, and nobody can say you didn't have the opportunity to make this right.” The juvenile court then continued the matter for evaluation.
At a May 23, 2018 hearing, the prosecutor noted that J.G. was found not eligible for camp, and renewed the People's motion to strike the prior adjudications to render him eligible for DJF commitment. The prosecutor told the court J.G. had been out of juvenile hall for only two months before committing two additional felonies, and the only alternative was to confine him in juvenile hall until his 18th birthday. Finding the only alternatives to be DJF commitment or juvenile hall confinement until J.G. turned 18, the juvenile court continued the matter.
The June 15, 2018 disposition report noted that J.G. had 13 minor and six major rules infractions during his most recent commitment to juvenile hall. J.G. had been deemed not suitable for camp placement due to the seriousness of his offenses and his pattern of absconding. The report also related that the 17-year-old J.G. had admitted to supporting himself by selling illegal substances while out on a warrant, he was in the company of known gang members and adult probationers when he was arrested, and information on his cell phone indicated he possessed a multitude of firearms at various times. The report recommended committing J.G. to DJF, where he would be in a secure and structured environment that would offer him various rehabilitative services and opportunities.
The juvenile court granted the People's motion to dismiss on May 30, 2018. The court found local resources were exhausted at this point; nothing in J.G.'s past conduct or behavior indicated he could successfully complete the Camp Condor program. Finding J.G. is a danger to himself as well as the public, the juvenile court concluded DJF commitment was in the minor's best interests.
DISCUSSION
I
J.G. contends granting the motion to dismiss so he could be rendered eligible for DJF placement violated his due process rights. We disagree.
As previously noted, under section 733, a minor cannot be committed to DJF unless the most recent offense is eligible for DJF commitment. Of J.G.'s offenses, only count three of the December 14, 2016, petition, the assault by means likely to produce great bodily injury with the personal use of a firearm enhancement, is eligible for DJF commitment. (See § 707, subd. (c)(14).) Since the offense was committed during the October 21, 2016 attack on Bradley H., all offenses committed after that incident, involving counts four through six of the December 2016 petition as well as the two subsequent petitions, had to be dismissed in order to allow J.G. to be placed in DJF.
In Greg F., our Supreme Court had to assess the “interplay between” sections 733(c) and 782 in a situation where “a ward on probation for a DJF-eligible offense commits a new offense that is not listed in section 707[, subdivision] (b), ” and that offense has been charged in a new section 602 petition. (Greg F., supra, 55 Cal.4th at p. 400.) The court held that, under the circumstances presented, the juvenile court could use its discretion under section 782 to dismiss the newly filed petition “so that the matter can be treated as a probation violation, ” which does not implicate section 733(c), thus allowing a DJF commitment. (Greg F., at p. 400.) The court reached this conclusion by addressing the statutory language, the legislative history of the statutes' adoption, and policy considerations.
As to the statutory language, the court found (1) when the Legislature wishes a statute to “prevail over all contrary law, ” it uses phrases such as “ ‘notwithstanding any other law' ” or “ ‘notwithstanding any other provision of law,' ” but the Legislature did not use such language in section 733(c) or add it later by amendment; thus, section 733(c) on its face does not show a legislative intent to override section 782. (Greg F., supra, 55 Cal.4th at pp. 406-407.) (2) The Legislature is presumed aware of prior law, but when enacting section 733(c) it did not choose to eliminate or reduce the discretion the courts had already exercised for 40 years under section 782. (Greg F., at p. 407.) (3) Because section 733(c) does not mention section 782, it is not more specific than section 782. (Greg F., at p. 407.) (4) The two provisions are not “irreconcilably in conflict, ” but can be harmonized. (Ibid.) If a juvenile court dismisses a section 602 petition under section 782, “its decision does not nullify or abrogate section 733(c). It simply changes the ‘most recent offense alleged in any petition' to which section 733(c) applies in that particular case.... If the minor has been given an opportunity to benefit from probation after committing a DJF-eligible offense, and then goes on to commit a new offense while on probation, the interests of justice and the welfare of the minor may be best served by a DJF commitment. Section 782 gives the juvenile court a discretionary tool in such cases to control the operative petition for purposes of section 733(c) and, consequently, expand its dispositional options. Allowing section 782 dismissals in the interests of justice and for the minor's welfare thus gives effect to both statutes.” (Greg F., at p. 408.)
As to legislative history, the court found that section 733(c) enacted as part of the 2007 realignment statutory scheme, was intended to reduce the number of youthful offenders housed in state facilities by excluding nonviolent offenders from that number. There was no indication the Legislature had considered the situation where a youthful offender, already on probation for a recent serious and violent offense, was the subject of a new section 602 petition alleging a non-DJF-eligible offense, or that the Legislature intended to strip juvenile courts of discretion to impose DJF commitments in such cases. (Greg F., supra, 55 Cal.4th at pp. 408-410.)
As to policy considerations, the court's finding that section 733(c) does not override section 782 avoids the “absurd and unreasonable consequences” that could ensue if the prosecutor “has simply filed the wrong piece of paper: a 602 petition instead of a 777 notice.” (Greg F., supra, 55 Cal.4th at pp. 410-411.) In other words, it would be absurd and unreasonable to prevent the juvenile court from committing to DJF a minor already on probation for a DJF-eligible offense, merely because a later, non-eligible offense had been mistakenly alleged in a section 602 petition (to which section 733(c) applies) rather than in a probation violation notice (to which section 733(c) does not apply). To do so would unreasonably restrict the flexibility, which the juvenile delinquency statutory scheme bestows on juvenile courts, and would elevate form over substance. (Greg F., at pp. 411-412.)
The Supreme Court further reinforced the point that section 733(c) does not restrict a juvenile court's discretion under section 782 by discussing an appellate decision that presented somewhat similar facts to those of our case. (V.C. v. Superior Court (2009) 173 Cal.App.4th 1455 (V.C.), discussed in Greg F., supra, 55 Cal.4th at pp. 414-415.) In V.C., the minor, on probation for a DJF-eligible sex offense, was found to have committed a non-DJF-eligible offense charged in a later section 602 petition and admitted under a plea agreement; then the minor failed to participate in sex offender treatment. The prosecutor moved to dismiss the most recent section 602 petition in order to permit a DJF commitment. After the juvenile court granted the motion, the minor successfully petitioned for a writ of mandate. (V.C., at pp. 1459-1461.)
Greg F. upheld the appellate court's ruling on the ground that to commit the minor to DJF on these facts would not serve the interests of justice because it would violate the minor's executed plea agreement. (Greg F., supra, 55 Cal.4th at p. 415.) However, Greg F. disapproved V.C.'s broader holding that “section 733(c) must always override the juvenile court's ability to dismiss a delinquency petition under section 782.” (Greg F., at p. 415, disapproving “that portion of V.C. v. Superior Court, supra, 173 Cal.App.4th 1455, 1467-1469.”)
In this context, Greg F. stated in dicta: “Dismissing a 602 petition after disposition potentially raises a host of constitutional concerns not presented in the case before us. We express no opinion on whether such a dismissal could ever be appropriate.” (Greg F., supra, 55 Cal.4th at p. 415.) The constitutional concern was, as in V.C., the minor's “ ‘due process right to the benefit of his plea bargain' ” in the dismissed petition. (Ibid., citing V.C., supra, 173 Cal.App.4th at p. 1465.) Failure to abide by the terms of a plea agreement implicates due process principles. (People v. Villalobos (2012) 54 Cal.4th 177, 182; accord, People v. Mancheno (1982) 32 Cal.3d 855, 860.) If a disposition other than DJF commitment was part of a prior plea agreement, dismissal of that case in order to render a minor eligible for DJF raises serious due process concerns.
Those concerns are not present in this case. The disposition was not a subject of the plea agreement in either dismissed case or with regards to the dismissed charges from the December 2016 section 602 petition. At the disposition hearing for the December 2016 petition, the juvenile court informed J.G. the court was at the end of its rope and if the minor continued to “blow it” the court would employ the other options that the minor knew the court had. J.G. continued to commit felonies and probation violations in spite of the juvenile court's warning, leading to two more sustained petitions that were not subject to stipulated dispositions. In light of the ample warning given to the minor and the lack of any stipulated disposition, the dismissals here do not raise the due process concerns identified in the Greg F. dicta.
The facts of this case distinguish the primary authority cited by the minor, V.C. In V.C., pursuant to the minor's plea agreement, he was placed in a Level A facility where he could receive sex offender counseling, among other benefits. After he allegedly failed to participate in counseling and committed other non-criminal violations of probation, the prosecutor filed a probation violation notice recommending DJF commitment, but under the newly enacted section 733(c), the minor could not be committed to DJF for such violations. The prosecutor then moved to dismiss a previously filed section 602 petition alleging a non-DJF-eligible offense in order to make the minor's admitted sexual offense the most recent for purposes of section 733(c). (V.C., supra, 173 Cal.App.4th at p. 1460.) The juvenile court granted the motion, stating among other things that neither the court nor the attorneys had realized the full effect of “ ‘the nuances of the newest law,' ” and that the minor's “ ‘entire delinquent history' ” was DJF worthy; the court also acknowledged that the most recent probation violation notice was based on orders that, after the dismissal, were no longer in effect, “ ‘but it doesn't mean that he's not in violation of the Court's orders.' ” (Id. at p. 1461.)
The appellate court found that the lower court's action amounted to a violation of the minor's constitutional right to the enforcement of his plea bargain, which was not “in the interests of justice.” (V.C., supra, 173 Cal.App.4th at p. 1467.) The high court approved the appellate court's reasoning on this point: “[T]he decision rested primarily on the fact that dismissal of the most recent 602 petition was an attempt to undo an executed plea bargain. [Citation.] It would be difficult indeed to conclude that such an action served the interests of justice.” (Greg F., supra, 55 Cal.4th at p. 415.)
As previously discussed, the dismissal here did not undo a plea agreement as the disposition was not part of any of J.G.'s pleas. The interests of justice were the primary motivation for the dismissal motion and the juvenile court's decision to grant it. When the juvenile court ruled on the motion to dismiss, it had two options for disposition. Since J.G. repeatedly offended when not confined and less restrictive alternatives were not available, the juvenile court was left with two options, warehousing J.G. in juvenile hall until he turned 18, or giving him one last opportunity for rehabilitation at DJF, where J.G. could receive additional services while the public is protected by confining him. The prosecutor, J.G.'s counsel, and the juvenile court all believed that the minor's best interests would be served by DJF commitment and we agree. Since the interests of justice were served by the dismissals, V.C., as limited by Greg F., is distinguished.
The other cases upon which the minor relies, D.B. and In re A.O. (2017) 18 Cal.App.5th 390 (A.O.), are likewise inapposite. In D.B., the high court “answer[ed] a question... left unresolved in In re Greg F....: When a... section 602 petition alleges a minor has committed a series of criminal offenses, including serious or violent offenses, can the minor be committed to [DJF] if the last offense in the series is nonviolent? We hold that the answer is no.” (D.B., supra, 58 Cal.4th at p. 944, fn. omitted.) The reason is that such a disposition violates the “ ‘most recent offense' ” requirement of section 733(c). (D.B., at p. 944.)
The minor in D.B. (not previously adjudicated a ward of the juvenile court, so far as the opinion shows) was accused in a single section 602 petition of committing multiple offenses on May 23, 2010, some DJF-eligible, and then of committing a non-eligible offense a week later. The juvenile court committed the minor to DJF. Because the non-eligible offense was the most recent one alleged in a section 602 petition, this disposition was in error. (D.B., supra, 58 Cal.4th at pp. 944-945.)
The juvenile court did not use section 782 to arrive at its disposition, no party cited section 782 on appeal, and the high court does not discuss it. The opinion simply analyzes the effect of section 733(c) on its face without regard to any other provision of law. (D.B., supra, 58 Cal.4th at pp. 945-948.) Thus, it is not authority for the proposition, already rejected in Greg F., that section 733(c) limits a juvenile court's discretion under section 782.
A.O. involved a minor who admitted two offenses in a single petition, robbery and the more recent offense, resisting an executive officer, and was placed on probation. (A.O., supra, 18 Cal.App.5th at p. 392.) When the juvenile court subsequently found the minor violated his probation, it committed the minor to the DJF. (Ibid.) After DJF refused commitment because the most recent offense rendered the minor ineligible, the juvenile court granted the prosecutor's motion to dismiss over the minor's objection, justifying the order by stating the minor was “‘currently violent based upon his offenses both in-well, while he was in camp....' ” (Id. at p. 393.) The Court of Appeal reversed, finding the juvenile court never purported to invoke section 782, and that the People failed to establish that section 782 applied. (A.O., at p. 394.) In reaching this conclusion, the A.O. court noted how the very sparse record in that case could not support a dismissal after disposition: “Even assuming that such authority might exist in a given case, we cannot find it so here. Appellant admitted the allegations of his section 602 petition in June 2014. The record of those proceedings is not part of the record on appeal. We thus have no idea whether appellant made the admissions pursuant to a plea agreement, or whether any representations were made with regard to his possible placements. Indeed, we do not have before us any record of the facts underlying the offense that purportedly qualifies him for a DJF commitment.” (Id. at p. 396.) Accordingly, “[o]n the sparse record before us, it would also be impossible to determine whether the court's decision to dismiss the resisting charge (Pen. Code, § 69) for the sole purpose of securing a DJF commitment was a proper exercise of discretion. [Citation.]” (Id. at p. 397.)
Unlike A.O., the juvenile court here invoked its authority to dismiss under section 782 and the record supports a finding that the dismissal was in the interests of justice. Since the minor was not deprived of the benefit of any plea agreement, and since the dismissal allowed the juvenile court to render a disposition that best served the interests of justice, the dismissal neither violated due process nor was an abuse of the court's discretion. (See In re Angela M. (2003) 111 Cal.App.4th 1392, 1396 [DJF commitment reviewed for abuse of discretion].)
II
J.G. contends and the Attorney General agrees that the juvenile court erred in failing to state its reasons for the dismissals in the minute order. They are correct.
A section 782 dismissal must be supported by a statement of reasons set forth in the minutes. (Greg F., supra, 55 Cal.4th at p. 413; Cal. Rules of Court, rule 5.790(a)(2)(A).) This requirement is mandatory, not directory. (In re Juan C. (1993) 20 Cal.App.4th 748, 753.) “Accordingly, the failure to comply with this requirement renders the dismissal ‘without effect.' [Citation.]” (A.O., supra, 18 Cal.App.5th at p. 396.)
Under the criminal court dismissal statute, Penal Code section 1385, the disposition for failure to state the reasons for the dismissal order in the minutes is as follows: “[A]s the trial court's order of dismissal is ineffective, the matter must be remanded at least for the purpose of allowing the trial court to correct the defect by setting forth its reasons in a written order entered upon the minutes. Alternatively, on remand the trial court may, but need not, revisit its earlier decision, as on reflection it might determine its reasoning was flawed or incomplete. Judicial economy is furthered by allowing the trial court to correct what, upon reconsideration and reflection, it perceives to have been an unwarranted dismissal, or to consider if a dismissal should be ordered for some new or different reason. In such cases, the court must also have the power to take action such as reconvening the sentencing hearing or allowing a defendant to withdraw a plea entered on the understanding a count or an enhancement would be dismissed. [Citations.]” (People v. Bonnetta (2009) 46 Cal.4th 143, 153.) The same applies here as well. (See People v. Superior Court (Arthur R.) (1988) 199 Cal.App.3d 494, 498, fn. 3 [“Although juvenile proceedings are not criminal (§ 203) and not controlled in all respects by statutes and rules applicable to criminal proceedings and appeals, a general parallel has been acknowledged”].)
III
The juvenile court calculated J.G.'s maximum term of 11 years two months as follows: four years for assault by means likely to produce great bodily injury in violation of Penal Code section 245, subdivision (a)(4); plus one year for the Penal Code section 12022, subdivision (b)(1) personal use of a weapon enhancement; plus eight months (one-third the middle term) for unlawful possession of a firearm in violation of Penal Code section 29805; plus eight months (one-third the middle term) for damaging a phone or electrical line in violation of Penal Code section 591; plus eight months (one-third the middle term) for possession of a weapon in violation of Penal Code section 22210; plus eight months (one-third the middle term) for possession of a stolen vehicle in violation of Penal Code section 496d, subdivision (a); plus six months for brandishing a deadly weapon (Pen. Code, § 417, subd. (a)(1)), for exhibiting a weapon (Pen. Code, § 417, subd. (a)(2)) and for battery (Pen. Code, §§ 242, 243); and plus one year for battery on school property (Pen. Code, § 242.3, subd. (a)(1)) and for resisting an officer (Pen. Code, § 148, subd. (a)(1)).
J.G. and the Attorney General correctly assert this is mistaken because the juvenile court imposed full consecutive terms for the misdemeanor counts rather than one-third the middle term pursuant to Penal Code section 1170.1. We agree.
Pursuant to section 726, subdivision (d)(3), where a juvenile court “elects to aggregate the period of physical confinement on multiple counts or multiple petitions, ... the ‘maximum term of imprisonment' shall be the aggregate term of imprisonment specified in subdivision (a) of Section 1170.1 of the Penal Code.... As a result, the court must determine the principal term, and add to it one-third of the midterm for each of the subordinate terms.” (In re Eric J. (1979) 25 Cal.3d 522, 538.) This requirement is applicable to misdemeanor and felony charges. (Ibid.)
The appropriate terms for the misdemeanor counts are as follows: two months (one-third the maximum term of six months) each for exhibiting a firearm in violation of Penal Code section 417, subdivision (a)(2), brandishing a deadly weapon (Pen. Code, § 417, subd. (a)(1)); plus two months (one-third the maximum term of six months) for battery in violation of Penal Code sections 242 and 243, subdivision (a); plus four months (one-third the maximum term of one year) for a battery on school property in violation of Penal Code section 243.2, subdivision (a) (misdemeanor); plus four months (one-third the maximum term of one year) for resisting arrest in violation of Penal Code section 148, subdivision (a)(1) (misdemeanor). When the proper misdemeanor terms are added to the felony terms, the maximum term is eight years 10 months. If the juvenile court does not set aside the dismissals on remand, it shall modify the judgment accordingly.
DISPOSITION
The dismissal order is set aside and the matter is remanded to determine whether to order the dismissals, and, if so, to state the reasons in the minute order. If the juvenile court does not set aside the dismissal, it is directed to modify the maximum term to eight years 10 months. In all other respects, the judgment is affirmed as modified.
We concur: ROBIE, J., MURRAY, J.