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In re Paul T.

California Court of Appeals, Fifth District
Jul 15, 2008
No. F054224 (Cal. Ct. App. Jul. 15, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Fresno County No. 01CEJ600374-5, Jon N. Kapetan, Judge.

Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Stephen G. Herndon and Alison Elle Aleman, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

THE COURT

Before Vartabedian, Acting P.J., Levy, J., and Kane, J.

It was alleged in a supplemental juvenile wardship petition (Welf. & Inst. Code, § 777) filed August 7, 2007, that appellant Paul T., then 18 and one-half years of age, violated conditions of probation granted in a previous wardship proceeding in that he failed to refrain from (1) the use of alcohol and (2) associating with persons known to him to be gang members. On August 14, 2007, appellant admitted the allegations, and at the disposition hearing on September 27, 2007, the court ordered appellant committed to the Department of Corrections and Rehabilitation, Juvenile Justice (DCRJJ), formerly known as the Department of the Youth Authority, and declared appellant’s maximum term of physical confinement (MTPC) to be four years ten months, based on offenses adjudicated in previous wardship proceedings.

Except as otherwise indicated, all statutory references are to the Welfare and Institutions Code.

On appeal, appellant’s sole contention is that in setting the MTPC, the court failed to exercise its discretion under section 731, subdivision (b) (section 731(b)). We will affirm.

BACKGROUND

Because the facts of the instant probation violations and appellant’s previously adjudicated offenses are not relevant to the issues raised on appeal, we will forgo recitation of those facts.

Prior to the filing of the August 2007 supplemental petition, appellant suffered adjudications of assault with a deadly weapon or by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), which the court declared to be a felony, and the following misdemeanors: being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), battery (Pen. Code, § 242) and unlawfully driving or taking a motor vehicle (Veh. Code, § 10851, subd. (a)).

DISCUSSION

In order to address appellant’s contention that the court failed to exercise its section 731(b) discretion, we find it useful, at the outset, to examine the interplay between section 726 and former section 731, and the history of the latter statute.

All references to section 731 are to the version of that statute in effect at the time of appellant’s September 2007 disposition hearing, and for the sake of convenience we dispense with the qualifier “former” when referring to section 731. That statute was amended shortly after the disposition hearing, and, in the version now in effect, section 731(b) became subdivision (c) of section 731, with certain nonsubstantive changes. (Stats. 2007, ch. 257, § 2, pp. 2257-2258.)

Section 726, subdivision (c) provides, in pertinent part, that “[i]f the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, the 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.” (Italics added.) This subdivision goes on to provide as follows: the “maximum term of imprisonment,” as that phrase is used in section 726, is, for a felony, the longest of the three periods prescribed for the offense, but without regard to the provisions of Penal Code section 1170, subdivision (b) (requiring the consideration of mitigating and aggravating factors), and without regard to time for good behavior, etc.; the maximum term of imprisonment for a misdemeanor is “the longest term of imprisonment prescribed by law”; and where the court elects to aggregate confinement periods for multiple felony offenses, the maximum term of imprisonment must be specified in accordance with the formula set forth in Penal Code section 1170.1, i.e., the sum of the “principal term” (the longest term imposed for any of the offenses) and “subordinate terms” (one-third of the middle term imposed for each other offense). Subordinate misdemeanor terms are calculated as one-third of the maximum term for such offenses. (In re Eric J. (1979) 25 Cal.3d 522, 536-538.)

Section 731 pertains to commitments to the DCRJJ. Prior to January 1, 2004, the second paragraph of this section provided: “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. Nothing in this section limits the power of the Youthful Offender Parole Board to retain the minor on parole status for the period permitted by Section 1769.” Section 731 was amended, January 1, 2004. The second paragraph was rewritten; it became subdivision (b) and the second sentence was added. At the time of appellant’s disposition hearing, section 731(b) read: “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. This section does not limit the power of the Youth Authority Board to retain the minor on parole status for the period permitted by Section 1769.” (§ 731(b), italics added.)

Thus, taken together, sections 726 and 731 require the juvenile court to make two distinct determinations when committing a minor to the DCRJJ. First, “[s]ection 726 directs the juvenile court to determine the maximum term of imprisonment by choosing the longest period of incarceration applicable to an adult offender without regard to mitigating or aggravating circumstances. (§ 726 subd. (c).)” (In re Carlos E. (2005) 127 Cal.App.4th 1529, 1538.) Second, while retaining this requirement, section 731 requires, in addition, that the court set a “maximum term of physical confinement” in the DCRJJ. (Ibid.) And section 731 further requires that in making the latter determination, the court exercise its discretion, “‘based upon the facts and circumstance of the matter ... which brought ... the minor under the jurisdiction of the juvenile court.’” (Ibid.) This maximum may not be more than the “maximum period of confinement” under section 726, but it may be less. (Id. at p. 1542.) This represents a major departure from the prior, long-established rule that a minor’s maximum period of physical confinement was necessarily the maximum term that could be imposed on an adult offender. (Id. at pp. 1534-1537.)

There is no dispute as to the foregoing principles. There is also no dispute that (1) the MTPC declared by the court -- four years ten months -- is equal to the section 726 “maximum term of imprisonment” for the offenses upon which the court based the MTPC, and (2) the court did not state on the record that the court recognized it had the discretion under section 731(b) to set an MTPC at less than the maximum term of imprisonment, based on the facts and circumstances placing appellant before the court. Moreover, we reject respondent’s contention that the court’s remarks at the disposition hearing indicate the court did, in fact, base its determination of appellant’s MTPC on applicable “facts and circumstances” (§ 731(b)). We have reviewed the court’s remarks, and we note that although the court referred to the circumstances of the instant probation violations and appellant’s past offenses, and remarked on the seriousness of the aggravated assault appellant committed, it appears the court’s comments were by way of explaining its decision to order appellant committed to the DCRJJ. The record is silent as to whether the court took facts and circumstances about appellant’s case into account when it set his MTPC. The question before is whether, on the record before us, remand is required to allow the court to exercise its section 731(b) discretion. In arguing for remand, appellant relies on In re Jacob J. (2005) 130 Cal.App.4th 429. There, as here, the court declared an MTPC equal to the maximum term of imprisonment for a similarly situated adult and the record was silent on the question of whether the court understood the scope of its section 731 discretion. The court in Jacob J. acknowledged that “[o]n a silent record, the ‘trial court is presumed to have been aware of and followed the applicable law’ when exercising its discretion,” and that “[t]he appellate court cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of its discretion.” (Id. at pp. 437-438.) But, the court stated, “we think the matter goes somewhat beyond the question of whether the juvenile court was aware of and exercised the discretion granted by [section 731].” (Id. at p. 438.)

Based on the wording of section 731, its legislative history and its “structure,” the court concluded, “where, 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.” (In re Jacob J., supra, 130 Cal.App.4th at p. 438.) In explaining its point regarding the structure of the statute, the court stated, “Before the statute was amended, it said the maximum term of physical confinement at CYA could not exceed the maximum period of imprisonment that could be imposed on an adult convicted of the same offenses. After its amendment, the statute spoke of a second and separate, although perhaps not different, period of physical confinement, that is, confinement set by the court given the particular facts and circumstances of the case under consideration. When the court has stated only the maximum term of confinement that could have been imposed on an adult and is silent as to a maximum term based on the facts of the case, it has not spoken to the second, separate maximum called for by the amended statute. [¶] Thus, while the statute does not require a recitation of the facts and circumstances upon which the trial court depends, or a discussion of their relative weight, the record must reflect the court has considered those facts and circumstances in setting its maximum term of physical confinement even though that term may turn out to be the same as would have been imposed on an adult for the same offenses. The juvenile court having failed to set that term, the matter must be remanded to the court for that determination.” (Ibid.)

We read Jacob J. in the context in which it was decided. At the time of the disposition hearing in that case in February 2004, the amendment to section 731 had been in effect a little over one month, and there was as yet no case law discussing the ramifications of the amendment. In re Sean W. (2005) 127 Cal.App.4th 1177, the first published appellate opinion to hold that under section 731(b) a juvenile court had the discretion to declare an MTPC of less than the adult maximum, was not filed until March 2005. If a statutory provision conferring discretion is new, or if there is controversy as to the scope of discretion conferred, it should not be presumed from a silent record that the court understood the scope of its discretion and followed the applicable law. (See People v. Fuhrman (1997) 16 Cal.4th 930, 942-945.) Therefore, it would have been inappropriate for the juvenile court, in February 2004, to presume from a silent record that the court understood the scope of its discretion under section 731(b) and determined the MTPC after considering the applicable facts and circumstances. In our view, remand was the proper disposition in Jacob J.

Here, by contrast, the disposition hearing in the instant case occurred in September 2007, two and one-half years after Sean W. was decided. In April 2005, this court reached the same conclusion regarding the court’s discretion under section 731(b) in In re Carlos E., supra, 127 Cal.App.4th 1529, and the court in Jacob J. followed suit in June 2005. We are aware of no published case holding to the contrary. Thus, at the time of the disposition hearing, the principle that the court was required to base its determination of the MTPC on the facts and circumstances that brought appellant before the juvenile court was well established and not subject to serious controversy. Under the circumstances presented here, we find it appropriate to apply the ordinary rule that “‘[a] judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.’” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Accordingly, we presume the juvenile court in the instant case understood the scope of its discretion under section 731 and exercised that discretion, and we conclude, therefore, that remand is not necessary.

DISPOSITION

The judgment is affirmed.


Summaries of

In re Paul T.

California Court of Appeals, Fifth District
Jul 15, 2008
No. F054224 (Cal. Ct. App. Jul. 15, 2008)
Case details for

In re Paul T.

Case Details

Full title:In re PAUL T., a Person Coming Under the Juvenile Court Law. v. PAUL T.…

Court:California Court of Appeals, Fifth District

Date published: Jul 15, 2008

Citations

No. F054224 (Cal. Ct. App. Jul. 15, 2008)