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In re P.P.

California Court of Appeals, Fourth District, Third Division
Mar 26, 2008
No. G038504 (Cal. Ct. App. Mar. 26, 2008)

Opinion


In re P.P., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. P.P., Defendant and Appellant. G038504 California Court of Appeal, Fourth District, Third Division March 26, 2008

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. DL026929 Joy W. Markman, Judge.

Jan B. Norman, 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, Assistant Attorney General, Peter Quon, Jr., Maxine Cutler, and Stephanie Chow, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

ARONSON, J.

P.P., age 16 at the time of his offense, appeals from a judgment of the juvenile court committing him to the Department of Corrections and Rehabilitation, Division of Juvenile Justice, for the “‘theoretical maximum term of physical confinement’” for his participation in a knife assault on a motorist. Specifically, defendant challenges the four-year maximum term the court imposed for the assault, as part of his total term of nine years and eight months, which included commitment for a street terrorism count and related enhancements. (Pen. Code, § 186.22, subds. (a) & (b).) Defendant contends the total term should have been a year shorter based on a midterm of three years for the assault rather than the upper term. (Pen. Code, § 245, subd. (a)(1).) He relies on statutory provisions limiting the commitment period for juveniles to “the maximum term of imprisonment which could be imposed upon an adult convicted of the [same] offense or offenses . . . .” (Welf. & Inst. Code, §§ 726, subd. (c); 731, subd. (c); all further undesignated section references are to this code, unless otherwise noted.) He couples these statutory limitations to the Sixth Amendment jurisprudence culminating in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).

“[W]e use the phrase, ‘theoretical maximum term of physical confinement’ because the ‘actual term’ is indeterminate” since “there is no statutory minimum time of physical confinement before a juvenile offender can be released.” (In re Christian G. (2007) 153 Cal.App.4th 708, 711, fn. 1 (Christian G.).)

Defendant does not argue the Sixth Amendment affords juveniles the right to have a jury rather than a judge determine whether aggravating factors exist. Instead, he argues simply that because there was no such jury finding here, an adult in his shoes could receive no more than the three-year midterm for assault and, therefore, the plain terms of section 726, subdivision (c), and section 731, subdivision (c), mandated the same maximum for him. Like our sister courts, we reject this contention. (Christian G., supra, 153 Cal.App.4th at pp. 713-715; In re Alex U. (2007) 158 Cal.App.4th 259, 264-266.)

We do so for two reasons. First, in response to Cunningham,the Legislature amended the determinate sentencing law (DSL) to eliminate the midterm as the default statutory maximum absent aggravating factors. (Pen. Code, § 1170, subd. (b).) The Legislature made this change effective March 30, 2007 — before defendant’s commitment hearing on April 5, 2007. (See People v. Black (2007) 41 Cal.4th 799, 808, fn. 2.) The California Supreme Court has determined the change does not violate ex post facto principles. (People v. Sandoval (2007) 41 Cal.4th 825, 853-857; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Consequently, defendant is mistaken in assuming a three-year midterm sentencing limitation would apply to an adult convicted of the same assault he committed.

Second, and more fundamentally, the statutes on which defendant relies do not support his position. Both sections 726 and 731 expressly state that in ascertaining the maximum term of confinement for a juvenile, the court shall do so without regard to the default midterm sentence (formerly) mandated by Penal Code section 1170, subdivision (b). The ratio decidendi of Cunningham turned on the existence of this provision in California’s former DSL establishing the midterm as the “‘relevant “statutory maximum”’” that “‘a judge may impose . . . without any additional findings.’” (Cunningham, supra, 127 S.Ct. at p. 860.) Absent this lynchpin, defendant’s argument falls apart. Simply put, the relevant juvenile commitment provisions, i.e., subdivision (c) in both sections 726 and 731, disavow the midterm statutory maximum defendant seeks to import via Cunningham from former subdivision (b) of Penal Code section 1170. In sum, the relevant Welfare and Institutions Code provisions do not recognize the midterm as the applicable statutory maximum but, to the contrary, expressly reject it. Defendant’s reliance on the midterm is therefore misplaced and, consequently, his appeal is without merit.

Section 726, subdivision (c), provides: “As used in this section and in [s]ection 731, ‘maximum term of imprisonment’ means the longest of the three time periods set forth in paragraph (2) of subdivision (a) of [s]ection 1170 of the Penal Code, but without the need to follow the provisions of subdivision (b) of [s]ection 1170 of the Penal Code . . . .” (Italics added.)

The judgment is affirmed.

WE CONCUR: SILLS, P. J., RYLAARSDAM, J.


Summaries of

In re P.P.

California Court of Appeals, Fourth District, Third Division
Mar 26, 2008
No. G038504 (Cal. Ct. App. Mar. 26, 2008)
Case details for

In re P.P.

Case Details

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

Court:California Court of Appeals, Fourth District, Third Division

Date published: Mar 26, 2008

Citations

No. G038504 (Cal. Ct. App. Mar. 26, 2008)