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In re Julio C.

California Court of Appeals, First District, Fifth Division
Mar 3, 2008
No. A117190 (Cal. Ct. App. Mar. 3, 2008)

Opinion


In re JULIO C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JULIO C., Defendant and Appellant. A117190 California Court of Appeal, First District, Fifth Division March 3, 2008

NOT TO BE PUBLISHED

Alameda County Super. Ct. No. SJ07005922

SIMONS, Acting P.J.

Julio C. (appellant) appeals an order declaring him a ward of the juvenile court (Welf. & Inst. Code, § 707) after the court found he had committed robbery (Pen. Code, § 211) (count 1) and assault with a deadly weapon, to wit: a knife (Pen. Code, § 245, subd. (a)(1)) (count 2). The jury found appellant used a deadly or dangerous weapon (Pen. Code, § 12022, subd. (b)) (hereafter § 12022(b)) as to both counts and found great bodily injury had been inflicted (Pen. Code, § 12022.7) as to count 2. Appellant was committed to the Division of Juvenile Justice (DJJ) for a maximum term of nine years.

Hereafter, assault with a deadly weapon is referred to as ADW.

The DJJ was formerly referred to as the California Youth Authority.

Appellant contends the weapon use enhancement was improperly imposed on the ADW count, the court miscalculated his maximum term of confinement, and the court’s minute order requiring his parents or guardians to reimburse the county for the cost of his care and attorney fees should be stricken.

BACKGROUND

Since appellant’s appeal regards sentencing issues, a detailed recitation of facts is unnecessary. On the evening of November 17, 2006, the 17-year-old victim, Sergio H., was walking home when he was approached and robbed by appellant and codefendants Miguel C. and Javier Z. In the course of the robbery, appellant stabbed Sergio H. in the arm, back, and stomach.

Miguel and Javier were tried with appellant, and the petitions against them were sustained, but they are not parties to this appeal.

At the conclusion of the jurisdiction hearing, the court found that the robbery and ADW counts “merge[d]” under Penal Code section 654 and suggested that the maximum term of confinement would be seven years. At the disposition hearing, the court set the maximum term of appellant’s confinement at nine years, composed of five years for the robbery, one year for the section 12022(b) enhancement, and three years for the section 12022.7 enhancement. Thereafter, the court stated, “I’ll set it at nine under [section 731, subdivision (b)]. That is, they merged the [section] 245 into the [section] 211, so there’s no additional time for that.”

All undesignated section references are to the Penal Code.

DISCUSSION

I. The Section 12022(b) Enhancement Should Be Stricken

Appellant contends the section 12022(b) personal deadly or dangerous weapon use enhancement imposed on the ADW charge must be stricken because use of a deadly or dangerous weapon is an element of ADW. Appellant relies on People v. Summersville (1995) 34 Cal.App.4th 1062, 1070, and People v. McGee (1993) 15 Cal.App.4th 107, 110, which struck a section 12022(b) knife-use enhancement after concluding that a conviction under section 245, subdivision (a)(1) cannot be enhanced pursuant to section 12022(b). The People argue that the juvenile court’s statement at the disposition hearing indicates that it stayed, pursuant to section 654, any confinement time for the ADW count. They contend such stay was proper, relying on People v. Bracamonte (2003) 106 Cal.App.4th 704, 709, which states, “Where the base term of a sentence is stayed under section 654, the attendant enhancements must also be stayed.”

Section 12022(b)(1) provides: “Any person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense.”

Penal Code section 654, subdivision (a) provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.” Section 654 prohibits multiple punishment “where the convictions arise out of an indivisible transaction and have a single intent and objective.” (People v. Monarrez (1998) 66 Cal.App.4th 710, 713.)

Bracamonte is inapposite. First, it did not consider a section 12022(b) enhancement. Instead, it held that where multiple enhancements are applicable under the various subdivisions of section 12022.53 and under section 12022.5, the court for each count must (1) impose but stay all of the section 12022.53 enhancements except the longest one, and (2) not impose, but strike the section 12022.5 enhancements. (People v. Bracamonte, supra, 106 Cal.App.4th at pp. 711, 714.) Second, section 12022(b) expressly states that it may not be imposed where, as here, the use of a dangerous or deadly weapon is an element of the underlying offense. Since imposition of the section 12022(b) enhancement was unauthorized in this case, the appropriate remedy was to strike, not stay, the enhancement.

II. The Maximum Term of Confinement Was Improperly Calculated

Next, appellant contends the court miscalculated his maximum term of confinement as nine years. When the juvenile court removes a minor from his parents’ custody as a result of criminal violations sustained under Welfare and Institutions Code section 602, the court must specify the maximum term of imprisonment that could be imposed on an adult convicted of the same offenses, plus any pled and proved sentence enhancements. (See Welf. & Inst. Code, § 726, subd. (c); In re Jovan B. (1993) 6 Cal.4th 801, 810-811.) The juvenile court has discretion to set the maximum confinement time at less than the adult maximum term. (In re Sean W. (2005) 127 Cal.App.4th 1177, 1185.) Appellant contends the matter must be remanded for the court’s exercise of this discretion.

“ ‘[A]n enhancement must necessarily be stayed where the sentence on the count to which it is added is required to be stayed [under section 654].’ [Citation.] ‘[F]ailure to stay an enhancement, where the base term to which it is added is stayed, and requiring that time be served only for the enhancement[,] has the [improper] effect of elevating the enhancement to the status of an offense. Enhancements are not offenses, they are punishments. . . .’ ” (People v. Bracamonte, supra, 106 Cal.App.4th at p. 711.)

The People agree that the court miscalculated appellant’s maximum term of confinement. They correctly argue that the maximum term of confinement resulted from a mistaken belief that the section 12022.7 enhancement was connected to the robbery, but in fact, the section 12022.7 enhancement was pled only as to the ADW count. They also correctly argue that the court violated section 654 by staying the ADW count, rather than the robbery count. (§ 654, subd. (a); In re Jose P. (2003) 106 Cal.App.4th 458, 469 [in imposing sentence pursuant to section 654 the court must impose sentence on the offense carrying the highest punishment].) Moreover, they argue that the maximum term of confinement should be eight years, calculated as: the four-year upper term for the ADW, plus three years for the section 12022.7 enhancement, plus one year for the section 12022(b) enhancement.

The People note that the probation department’s dispositional report calculated the maximum term of confinement as eight years.

The People argue that despite the court’s error in calculating the maximum term of confinement, remand is unnecessary because the court is presumed to be aware of its discretion to set the maximum term of confinement at less than the greatest term possible. They argue that this court should vacate the stay on the ADW count and its enhancements, stay the robbery count and its enhancement, and impose the eight-year maximum term of confinement.

In his reply brief, appellant concedes that the robbery count and not the ADW count should have been stayed under section 654. However, as we concluded, ante, the section 12022(b) enhancement connected with the ADW count must be stricken. And appellant argues the maximum term of confinement cannot exceed seven years, calculated as: the four-year upper term for the ADW plus three years for the 12022.7 enhancement. He argues that remand is most appropriate to give the court an opportunity to exercise its discretion in setting the maximum term of confinement in an informed manner. We agree. Given the degree of confusion regarding the offenses and enhancements pled, and the calculation of the maximum term of confinement, we will not second guess the court’s sentencing discretion. Instead, remanding the matter for the court’s redetermination of the maximum term of confinement is most appropriate.

III. The Minute Order Regarding Parental Reimbursement for Support and Legal Costs Is Uncertain

Finally, appellant contends that the court’s minute order from the March 23, 2007 disposition hearing improperly ordered: “Parent or Guardian shall reimburse the County for the care and support of the minor in an amount and at a rate as determined by the financial hearing officer, including attorney’s fees.” He acknowledges that the probation officer’s March 9, 2007 disposition report, which was considered by the juvenile court, “recommended that the parent(s) be directed to report to the Financial Hearing Officer immediately following this hearing to give a complete financial statement.” However, appellant states that the court’s oral pronouncement during the disposition hearing did not include such an order, and argues that because the court’s oral pronouncement controls over the inconsistent minute order, the reimbursement order should be stricken.

The People respond that the validity of the reimbursement order is not cognizable on appeal because it was directed at appellant’s parent or guardian, and, therefore, it is appealable only by his parent or guardian. Alternatively, the People argue that if the claim is cognizable it lacks merit because Welfare and Institutions Code sections 903 and 903.1 impose a mandatory liability on parents or guardians for the costs of a delinquent minor’s support and legal services. They argue that given the mandatory nature of the liability, the court’s failure to include such reimbursement in its oral pronouncement can be corrected here or on remand.

Welfare and Institutions Code section 903 seeks reimbursement for the costs of the minor’s “support” during a period of commitment to a juvenile institution. It provides in part: “(a) The father, mother, spouse, or other person liable for the support of the minor . . . shall be liable for the reasonable costs of support of a minor while the minor is placed, or detained in, or committed to, any institution or other place pursuant to Section 625 or pursuant to an order of the juvenile court.”

Before we can determine whether appellant has standing to appeal the reimbursement order, we must determine whether reimbursement was in fact ordered by the court. Neither party cites section 903.45, which provides in relevant part: “(b) In any county where a board of supervisors has designated a county financial evaluation officer, the juvenile court shall, at the close of the disposition hearing, order any person liable for the cost of support, pursuant to Section 903, the cost of legal services as provided for in Section 903.1 or probation costs as provided for in Section 903.2, or any other reimbursable costs allowed under this code, to appear before the financial evaluation officer for a financial evaluation of his or her ability to pay those costs; and if the responsible person is not present at the disposition hearing, the court shall cite him or her to appear for such a financial evaluation. . . . ” (Italics added.)

The reporter’s transcript from the disposition hearing here reflects that the court did not order appellant’s parents to appear before the financial evaluation officer pursuant to section 903.45, and was silent as to the issue of any such reimbursement. Nothing in section 903.45 states that the county forfeits its right to seek reimbursement if the juvenile court fails to order the parent of a juvenile delinquent “to appear before the financial evaluation officer for a financial evaluation of his or her ability to pay those costs.” Therefore, we reject appellant’s contention that the court’s failure to refer to reimbursement at the disposition hearing is reflective of its intent not to require reimbursement from appellant’s parents. Instead, the statement in the court’s minute order appears to order the parents, pursuant to section 903.45, to appear before the county financial evaluation officer for a financial evaluation of their ability to pay those costs. In light of our decision to remand the matter for the court’s redetermination of the maximum term of confinement, we will also direct the court to clarify its intention regarding parental reimbursement for support and legal costs.

Because it is possible that the financial evaluation officer could find the parents unable to pay the reimbursement costs, a discussion of standing to oppose an order to pay such costs is premature.

DISPOSITION

The section 12022(b) enhancement as to the ADW count is stricken. The matter is remanded to the juvenile court with directions to redetermine the maximum term of confinement and clarify its intention regarding parental reimbursement for the minor’s support and legal costs.

We concur. NEEDHAM, J., STEVENS, J.

Retired Associate Justice of the Court of Appeal, First District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Appellant concedes that the court stayed the assault with a deadly weapon charge pursuant to Penal Code section 654.

Welfare and Institutions Code section 903.1 makes parent liable for legal costs rendered to a minor in juvenile court proceedings. It provides in part: “(a) The father, mother, spouse or other person liable for the support of a minor . . . shall be liable for the cost to the county of legal services rendered to the minor by the public defender or other public attorney pursuant to an order of the juvenile court, or for the cost to the county for the legal services rendered to the minor by an attorney in private practice appointed pursuant to an order of the juvenile court.”

“(a) The board of supervisors may designate a county financial evaluation officer pursuant to Section 27750 of the Government Code to make financial evaluations of parental liability for reimbursement pursuant to Sections 207.2, 903, 903.1, 903.2, 903.25, 903.3, and 903.5 and other reimbursable costs allowed by law, as set forth in this section.

“(b) In any county where a board of supervisors has designated a county financial evaluation officer, the juvenile court shall, at the close of the disposition hearing, order any person liable for the cost of support, pursuant to Section 903, the cost of legal services as provided for in Section 903.1 or probation costs as provided for in Section 903.2, or any other reimbursable costs allowed under this code, to appear before the financial evaluation officer for a financial evaluation of his or her ability to pay those costs; and if the responsible person is not present at the disposition hearing, the court shall cite him or her to appear for such a financial evaluation. . . . [¶]

“If the county financial evaluation officer determines that a person so responsible has the ability to pay all or part of the costs, the county financial evaluation officer shall petition the court for an order requiring the person to pay that sum to the county. In evaluating a person’s ability to pay under this section, the county financial evaluation officer and the court shall take into consideration the family’s income, the necessary obligations of the family, and the number of persons dependent upon this income. Any person appearing for a financial evaluation shall have the right to dispute the county financial evaluation officer’s determination, in which case he or she shall be entitled to a hearing before the juvenile court. The county financial evaluation officer at the time of the financial evaluation shall advise such a person of his or her right to a hearing and of his or her rights pursuant to subdivision (c).

“At the hearing, any person so responsible for costs shall be entitled to have, but shall not be limited to, the opportunity to be heard in person, to present witnesses and other documentary evidence, to confront and cross-examine adverse witnesses, to disclosure of the evidence against him or her, and to receive a written statement of the findings of the court. The person shall have the right to be represented by counsel, and, when the person is unable to afford counsel, the right to appointed counsel. If the court determines that the person has the ability to pay all or part of the costs, including the costs of any counsel appointed to represent the person at the hearing, the court shall set the amount to be reimbursed and order him or her to pay that sum to the county in a manner in which the court believes reasonable and compatible with the person’s financial ability.

“If the person or persons, after having been ordered to appear before the county financial evaluation officer, have been given proper notice and fail to appear as ordered, the county financial evaluation officer shall recommend to the court that he, she, or they be ordered to pay the full amount of the costs. Proper notice to him, her, or them shall contain all of the following:

“(1) That he, she, or they have a right to a statement of the costs as soon as it is available.

“(2) His, her, or their procedural rights under Section 27755 of the Government Code.

“(3) The time limit within which his, her, or their appearance is required.

“(4) A warning that if he, she, or they fail to appear before the county financial evaluation officer, the officer will recommend that the court order him, her, or them to pay the costs in full.

“If the county financial evaluation officer determines that the person or persons have the ability to pay all or a portion of these costs, with or without terms, and he, she, or they concur in this determination and agree to the terms of payments, the county financial evaluation officer, upon his or her written evaluation and the person’s or persons’ written agreement, shall petition the court for an order requiring him, her, or them to pay that sum to the county in a manner which is reasonable and compatible with his, her, or their financial ability. This order may be granted without further notice to the person or persons, provided a copy of the order is served on him, her, or them by mail.

“However, if the county financial evaluation officer cannot reach an agreement with the person or persons with respect to either the liability for the costs, the amount of the costs, his, her, or their ability to pay the same, or the terms of payment, the matter shall be deemed in dispute and referred by the county financial evaluation officer back to the court for a hearing.

“(c) At any time prior to the satisfaction of a judgment entered pursuant to this section, a person against whom the judgment was entered may petition the rendering court to modify or vacate the judgment on the basis of a change in circumstances relating to his or her ability to pay the judgment.

“(d) Execution may be issued on the order in the same manner as on a judgment in a civil action, including any balance remaining unpaid at the termination of the court’s jurisdiction over the minor.”


Summaries of

In re Julio C.

California Court of Appeals, First District, Fifth Division
Mar 3, 2008
No. A117190 (Cal. Ct. App. Mar. 3, 2008)
Case details for

In re Julio C.

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JULIO C., Defendant and Appellant.

Court:California Court of Appeals, First District, Fifth Division

Date published: Mar 3, 2008

Citations

No. A117190 (Cal. Ct. App. Mar. 3, 2008)