Opinion
NOT TO BE PUBLISHED
Super. Ct. No. J5055
BUTZ, J.The juvenile court sustained charges against Montana M., a minor, of battery on a custodial officer (Pen. Code, § 243, subd. (c)(1)), a felony, and delaying or obstructing a peace officer in the performance of his or her duties (Pen. Code, § 148, subd. (a)(1)), a misdemeanor. The minor was committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF), for a maximum confinement period of two years seven months.
On appeal, the minor contends (1) legislation enacted and operative after his commitment to the DJF requires the commitment be vacated and a new disposition hearing be conducted; (2) remand is required to permit the juvenile court to declare whether the violation of Penal Code section 243, subdivision (c)(1) is a felony or a misdemeanor; and (3) the court miscalculated his maximum period of confinement. We reject these claims and shall affirm the order of commitment.
FACTUAL AND PROCEDURAL BACKGROUND
While detained in the county juvenile hall, the minor was approached by two custodial officers. One officer went into the minor’s room to question the minor about gang markings on a piece of paper, while the second officer stayed in the doorway. When the minor began to call the first officer names, she instructed him to face the window and kneel down with his hands on his head. Although the minor faced the window, he refused to kneel down. A third custodial officer came into the room to assist the first officer in handcuffing the minor. As the two officers began to move the minor to a holding cell, he resisted, jumping up and down and kicking his feet, hitting one officer in the hand and chest, and causing the officer’s defibrillator to go off twice.
A petition was filed alleging the minor committed one count of inflicting injury upon a custodial officer, a felony, and one misdemeanor count of resisting, delaying, or obstructing a peace officer. Following a contested jurisdictional hearing, the juvenile court found both counts to be true as alleged.
DISCUSSION
I
On January 24, 2007, the juvenile court committed the minor to the DJF for violations of Penal Code sections 243, subdivision (c)(1) and 148, subdivision (a)(1).
Operative September 29, 2007, Welfare and Institutions Code section 731 was amended to permit commitment of a section 602 minor to the DJF if the committing offense was listed in section 707, subdivision (b), and the minor was not otherwise ineligible for such commitment under section 733. A ward was ineligible for DJF commitment pursuant to section 733, operative September 1, 2007, if the ward’s committing offense was not a section 707, subdivision (b) offense or a sex offense listed in Penal Code section 290, subdivision (d)(3).
Undesignated statutory references are to the Welfare and Institutions Code.
In relevant part, section 731 provides: “(a) If a minor is adjudged a ward of the court on the ground that he or she is a person described by Section 602, the court may order any of the types of treatment referred to in Sections 727 and 730 and, in addition, may do any of the following: [¶] . . . [¶] (4) Commit the ward to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities, if the ward has committed an offense described in subdivision (b) of Section 707 and is not otherwise ineligible for commitment to the division under Section 733.” (§ 731, subd. (a)(4).)
Section 733 provides in relevant part: “A ward of the juvenile court who meets any condition described below shall not be committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities: [¶] . . . [¶] (c) The ward has been or is adjudged a ward of the court pursuant to Section 602, and the most recent offense alleged in any petition and admitted or found to be true by the court is not described in subdivision (b) of Section 707, unless the offense is a sex offense set forth in paragraph (3) of subdivision (d) of Section 290 of the Penal Code.” (§ 733, subd. (c).)
Effective October 13, 2007, Penal Code section 290, subdivision (d)(3) was repealed and reenacted as Penal Code section 290.008, subdivision (c).
Also operative September 1, 2007, was section 731.1, which provided the juvenile court with a procedure for recall of minors committed to the DJF prior to September 1, 2007, for what are now noncommittable offenses under section 733 and who remain confined in a DJF institution.
Section 731.1 provides in relevant part: “Notwithstanding any other law, the court committing a ward to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities, upon the recommendation of the chief probation officer of the county, may recall that commitment in the case of any ward whose commitment offense was not an offense listed in subdivision (b) of Section 707, unless the offense was a sex offense set forth in paragraph (3) of subdivision (d) of Section 290 of the Penal Code, and who remains confined in an institution operated by the division on or after September 1, 2007. Upon recall of the ward, the court shall set and convene a recall disposition hearing for the purpose of ordering an alternative disposition for the ward that is appropriate under all of the circumstances prevailing in the case.”
Relying on In re Estrada (1965) 63 Cal.2d 740, and similar adult criminal cases, which hold that where new legislation reduces the punishment for a criminal offense, the reduced punishment is applicable to all convictions for the offenses which are not yet final, unless the new law states otherwise (id. at p. 748), the minor argues that because neither of his committing offenses come within Welfare and Institutions Code section 707, subdivision (b) or Penal Code section 290, subdivision (d)(3), he is entitled to retroactive benefit of Welfare and Institutions Code sections 731 and 733 to have his commitment recalled. The argument is not persuasive.
Estrada is not applicable for two reasons. First, neither section 731 nor section 733 reduces the punishment for any criminal offense, let alone alters the punishment for either of the minor’s committing offenses. Instead, rather than inflicting punishment, these sections simply exclude a minor’s commitment to one specific institution designed for his rehabilitation, the DJF, where rehabilitation treatment is more intensive and lengthier than is necessary for commission offenses obviously less serious than those set forth in Welfare and Institutions Code section 707, subdivision (b) or Penal Code section 290, subdivision (d)(3).
Second, unlike sentencing a defendant to prison, a commitment of a ward to the DJF is not punishment. Penal Code section 1170, subdivision (a)(1) declares that the purpose of adult imprisonment for commission of crime is punishment, whereas Welfare and Institutions Code section 202, subdivisions (a) and (b) make clear that the purpose of commitment of wards to juvenile institutions is for both public safety and rehabilitation, with punishment being recognized only as a tool for accomplishing the latter. (In re Michael D. (1987) 188 Cal.App.3d 1392, 1396.)
Consequently, the minor’s reliance on the reasoning of Estrada is inapposite to a minor’s commitments from juvenile court.
Nor is either section 731 or section 733 retroactive. Statutes are not retroactive unless the Legislature makes clear its intent that such be the case. (Tapia v. Superior Court (1991) 53 Cal.3d 282, 287.) Because the Legislature made both section 731 (as amended) and section 733 (as reenacted) operative September 1, 2007, without any suggestion that either section be given retroactive effect, neither section is retroactive. (See Stats. 2007, ch. 175, §§ 19, 22.)
The section which governs a minor’s commitment to the DJF prior to September 1, 2007, for an offense noncommittable after September 1, 2007, is section 731.1, which provides a recall procedure of such a minor’s contention. (See fn. 5, ante.)
For the foregoing reasons, the minor’s contention that he is entitled to have his DJF commitment recalled is rejected.
II
The minor contends remand is required because the juvenile court failed to declare the felony/misdemeanor status of the Penal Code section 243, subdivision (c)(1) violation, a wobbler offense. No remand is necessary.
Section 702 states in part, “If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, [i.e., a wobbler], the court shall declare the offense to be a misdemeanor or felony.”
“‘[S]ection 702 means what it says and mandates the juvenile court to declare the offense a felony or misdemeanor.’” (In re Manzy W. (1997) 14 Cal.4th 1199, 1204.) However, remand for compliance with section 702 is not required where “the record as a whole establishes that the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement limit.” (Id. at p. 1209.)
Here, during argument at the conclusion of the jurisdictional hearing, the minor’s counsel argued for reduction of the Penal Code section 243, subdivision (c)(1) offense, which she pointed out was a wobbler, to be declared a misdemeanor rather than as “has been charged as a felony.” After hearing the People’s position that the battery was “definitely” felony conduct, the court stated it was finding the offenses true and that “I’m going to deny, at this juncture, the request to declare the matter misdemeanor conduct.”
Not only is the court’s statement tantamount to an express declaration that the offense is a felony, but the statement shows that the court was aware of its discretion to reduce the offense to a misdemeanor. Consequently, remand is not required.
III
The minor’s claim that he is entitled to an additional eight months nine days of presentence custody credit arises as follows. The probation report accurately pointed out that the maximum period for which the minor could be confined was three years four months (three years for the battery, four months for the obstruction or delaying a peace officer). However, directly beneath this calculation, the report stated that the total custody time available was three years eight months, an obvious error of four months. The report also observed that the minor was entitled to precommitment credit of eight months nine days, an amount of time unchallenged by the minor. Using the erroneous confinement period of three years eight months, the probation officer subtracted the eight months nine days of custody time served, which yielded two years 11 months and 21 days.
In committing the minor to the DJF, the juvenile court stated that it had “considered the needs of the minor and information presented and the recommendations of Probation and Juvenile Justice (DJF diagnostic team evaluation)” that the minor should be committed to the DJF. The court then stated that the minor’s confinement would be for a period not exceeding two years 11 months, and that it was aware of its discretion to set the term of confinement. The court did not mention the additional 21 days available for confinement.
Section 731, subdivision (b) mandates that the juvenile court discretionarily set the maximum confinement term “‘based upon the facts and circumstances of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court . . . .’” (In re Jacob J. (2005) 130 Cal.App.4th 429, 436.)
At this point, the minor’s counsel interrupted and pointed out to the court the four-month error in the probation report. The court checked the probation report, agreed with counsel, and reduced the confinement time by four months to two years seven months, again noting that it “exercise[d] its discretion in setting that term pursuant to Welfare and Institutions Code section 732 [sic],” and again not mentioning the additional 21-day period.
The court obviously was referring to section 731, because section 732 has nothing to do with determining the minor’s confinement period, but instead relates to conveying the minor to a state or county institution.
The minor claims the foregoing record shows that the confinement term of two years seven months was the result of the court’s discretionary term calculation under section 731 and had nothing to do with the court’s crediting him the eight months nine days to which he was entitled. We do not so read the record.
The court’s comments regarding its awareness of its discretion to set the term of confinement was clearly meant to show compliance with the mandate of section 731, subdivision (b), and that the court was discretionarily choosing the maximum period available, namely, two years seven months. That this is so is bolstered by the arithmetic involved: Three years four months is the same as two years 15 months and 30 days; two years 15 months and 30 days, minus eight months nine days, yields two years seven months and 21 days. This is the precise amount shown by the probation department, and the amount accepted by the juvenile court, without consideration of the extra 21 days. Indeed, if there was any error by the court, it was in the court’s failure to add the additional 21 days to the confinement period, a failure working to the minor’s benefit. Consequently, the minor’s attempt to obtain double precommitment credit is rejected.
DISPOSITION
The order committing the minor to the DJF is affirmed.
We concur: NICHOLSON, Acting P.J. ROBIE, J.