Opinion
E075469
06-25-2021
In re R.M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. R.M., Defendant and Appellant.
Melanie L. Skehar, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Juliet W. Park, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. J281465 Bryan K. Stodghill, Judge. Affirmed in part; reversed in part with directions.
Melanie L. Skehar, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Juliet W. Park, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER J.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On June 24, 2019, a petition under Welfare and Institutions Code section 602 alleged that minor and appellant R.M. (minor) committed attempted murder under Penal Code sections 664, and 187, subdivision (a) (count 1); attempted second degree burglary under Penal Code sections 664 and 211 (count 2); and assault with a firearm under Penal Code section 245, subdivision (a)(2) (count 3). The petition also alleged that minor personally used a firearm under Penal Code section 12022.53, subdivision (b), as to all counts.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
Pursuant to a plea agreement, on February 19, 2020, minor admitted the truth of count 1 and the allegation. Thereafter, the court sustained the petition as to count 1 and its attendant allegation. The court then dismissed the remaining counts and allegations, and the request to transfer the case to adult court under section 707, subdivision (a)(1), was withdrawn.
After the July 7, 2020, contested disposition, the court adjudged minor a ward of the court and committed him to the Department of Juvenile Justice (DJJ) for a maximum confinement time of 19 years, less 383 days of custody credits.
On August 5, 2020, minor filed a timely notice of appeal.
The facts are taken from the probation report.
On June 19, 2019, minor posted on a social media platform asking if anyone could sell him marijuana cartridges. The victim answered and agreed to sell minor 10 cartridges. In a separate group chat, minor recruited four friends from his high school (J.E., M.B., A.G., and E.H.) to rob the victim. The friends agreed to help minor in exchange for several cartridges and money. Minor told his friends that he would bring a gun and asked the others to bring ski masks.
The next day, minor asked A.G. to accompany the victim to the location of the drug exchange to make sure the victim arrived for the deal. E.B. drove minor and the rest of the group to meet with the victim. J.E. saw minor holding a nine-millimeter handgun; he told minor that they did not need a gun and that minor was stupid for bringing one. Minor did not listen to J.E. and cocked the gun. E.H. also told minor not to display the gun but to just show it in his waistband.
Once they got to the location, minor and M.B. walked toward the victim. The victim was sitting in his truck with A.G. Minor had the gun in his hand as he approached the victim and A.G. Once they got to the truck, minor took the gun out of his waistband, racked a round, and shot the victim in the chest. Minor then stole about $150 to $200 worth of cartridges. Although A.G. knew minor had a gun, A.G. did not think minor planned on using it. A.G. believed the shooting was intentional because minor purposely racked a round.
A witness saw two males walk toward a truck and talk to the driver and passenger. The witness then saw one of the males holding a black semi-automatic handgun. The witness then heard the “racking” of a gun and one gunshot.
A few minutes later, minor and M.B. ran back to their car. As they drove away, minor “freaked out” and told his friends that he might have shot the victim. Minor told them that there had been a struggle for the gun and it went off. Minor thought the victim got shot because the victim fell back when the gun went off. Minor also believed that he had dropped the gun clip and a bullet back at the scene so he asked E.H. to return and try to recover the items. E.H. was later apprehended by police officers who saw him manipulating an unexpended round of ammunition near the crime scene.
The victim sustained one gunshot wound. The bullet entered and exited the victim near the spine. The victim required two surgeries. In addition to his physical injuries, the victim was hurt and confused because A.G. and J.E. were his friends. The victim was unable to attend school due to his injuries.
The victim's mother was upset because minor left the scene and went home. He acted like nothing had happened even though “he had just shot [her] son hours before and didn't know if he was dead or alive.”
At the time of the incident, minor was a junior in high school, and three months shy of turning 17 years old.
DISCUSSION
A. THE JUVENILE COURT PROPERLY COMMITTED MINOR TO THE DJJ
Minor contends that the juvenile court abused its discretion in committing him to the DJJ because “it failed to consider less restrictive alternatives to the DJJ commitment and neglected to find a probable benefit to the minor, thus committing prejudicial error.” We disagree with minor. For the reasons set forth post, we discern no abuse of discretion.
1. ADDITIONAL FACTUAL HISTORY
At the contested disposition hearing, the juvenile court summarized the facts of this case. The court emphasized the criminal sophistication displayed by minor:
“According to the evidence, and it seems undisputed, that [minor] initiated this whole process. He set up the buy, he then recruited the others to participate. He was certainly, if not the primary planner, he was certainly involved in planning it.
“There's messages, there's social medical messages, relating to bringing masks, and other's roles, and what they were going to be paid, or how they were going to be paid, and what they were going to get out of it. So there does seem to be, at least in this Court's mind, that [minor] seems to have been-of all the participants, he was the-he was a major participant, and maybe the primary participant in this case.
“And then we get to the incident itself. And what I think is of impact for this Court is what actually happened when they arrived at the location to rob the victim.
“According to the evidence in this case, is that [minor] did bring the gun, that he acquired the gun, and he brought the gun to the location. There's some talk, again, -amongst all of them, you know, about showing it to the victim, flashing it, but not pointing it, keeping it in the waistband, or-there's lots of discussion about what happened. But the evidence in this case is that is not what happened. [Minor], despite the discussions, he brought the gun. He pulled it out and had it in his hand as he approached the alleged victim in this case. By all accounts, he then racked it and pointed it at the victim.
“The Court has to conclude, based on that evidence, that he intended to fire that gun. I can think of no other reason why anyone who just intended to scare someone or to intimidate someone, why you would rack and put a bullet in the chamber, other than you intended to use it. And when he got to-there was an independent witness that stated that he heard the rack as he was approaching the vehicle. So that is an indicating to this Court that [minor] intended to fire that gun.
“It's unclear to the Court exactly what transpired once he got to the car. But what is clear is that his intent was to fire that gun, and he did. I'm not-it's not an indication that [minor] intended to-it was not a premeditated attempt at murder, but that he intended to [use] that gun and apparently there was a struggle, there was an argument of some sort, or disagreement. At any rate, [minor] fired at the victim while the victim was sitting in his car. And so the Court believes that... is a level of sophistication [that] in this Court's mind warrants a DJJ commitment.”
Thereafter, the court summarized minor's conduct after the offense, which included his attempts to “cover up” the crime, his false and misleading statements to law enforcement, and his attempts to blame the victim. The court believed that these actions by minor showed “a level of sophistication” and that minor had not “necessarily accepted responsibility for his conduct.”
The court also noted minor's behavior following his detention. The court stated, “according to the probation department, he's not actively participating in the programming while he has been in custody” and he was “not taking advantage of all the programs that are available to him to rehabilitate.” Although minor graduated from high school while he was at juvenile hall, he stated that he was “apathetic towards programming at DJJ, ” and had no plans to further his education or participate in counseling at DJJ, “as it will do no good.” In the probation report, the probation officer stated “it is hoped [minor's] attitude will change upon his arrival at DJJ, as sabotaging his future by ignoring interventions and educational opportunities available, will only make it harder for him to reintegrate into society.” The juvenile court noted that “according to the probation department, [minor is] not actively participating in the programing while he has been in custody. And that is critical because one of the things that the Court wants to ensure is that [minor] is being rehabilitated.”
Moreover, the juvenile court reviewed several progress reports of minor's behavior in juvenile hall while minor awaited placement at DJJ. Minor's attitude toward the staff ranged from poor to appropriate, and his interaction ranged from poor to positive. The reports noted that minor wrote racial slurs to other minors in the facility, wrote gang affiliations on the walls, challenged and was disrespectful toward staff, and refused to follow directives or participate in unit programming.
The juvenile court also heard evidence regarding minor's substance abuse. The probation officer reported that minor “has acknowledged that his drug use was a primary motivator in the majority of his actions” in committing the offense. Minor also informed his doctor that minor participated in the offense because he wanted the drugs for free.
Notwithstanding the above, the juvenile court acknowledged minor's tumultuous life, ” which included the separation of his parents, the physical and emotional abuse by minor's mother, and his diagnosis of Crohn's disease. Minor indicated that his father was a paranoid schizophrenic and had a major depressive disorder; he was unable to care for minor. Minor also informed his doctor that he was depressed and suicidal, and thought about suicide several time. He made one attempt on the morning of the current offense. The court acknowledged the difficulties in minor's life and stated that it appreciated “that those are really difficult for [minor] to manage.”
The probation officer and the prosecutor both recommended that minor be committed to the DJJ. The prosecutor emphasized both the violent nature of the crime and that minor was almost 18 years old at the time of the disposition hearing. The prosecutor argued that placing minor “with probation for a year is not even close to being in the best interest of the minor and for the safety of our community. Attempted murder with personal use of a firearm is arguably the second most serious crime a person can commit. The minor needs a locked down facility with structure that offers more than one year possible treatment.”
The prosecutor went on to note the programming available at DJJ that would benefit minor:
“Additionally, as you can see from the probation report, the minor sees no purpose in participating right now in programming or his education. This is even greater support for a structured environment that DJJ offers. Attempted murder would be a category two offense in DJJ, with a parole consideration date of four years. At DJJ, as your Honor knows, there are a lot of great programs there. We would have the aggression interruption training. It's a ten-week cognitive behavioral intervention. It teaches you how to improve your social skills.
“In addition, there [is] also an advanced practice which provides for additional, more rigorous practice of social skills. There's cognitive behavioral intervention for substance abuse, which the minor had mentioned that he has a problem with. That is a 38 session curriculum designed for individuals who have moderate to high needs in the area of substance abuse. They have mental health programming that could address the depression, his PTSD. They have great health services that can deal with his Chron's or any other health issues that he may have.
“DJJ also allows for parole supervision, which I think is very important. It's in the best interest of the minor, as well as the safety of our community. With parole after he is done with his programming at DJJ, the parole supervision will allow for a substantial amount of supervision, which would increase the likelihood that he would successfully reenter the community safely with the ability to secure employment while earning livable wages.
“Again, to reiterate the sophistication, there was talk about bring[ing] a mask, so they can use a mask. So if you look at all of the evidence in this case, it was very sophisticated. It was a very sophisticated-it was a very sophisticated plan to commit a robbery and to bring a gun to the scene, which was racked immediately before the shooting.
In a report dated November 25, 2019, the probation officer reported that minor was not eligible “for both placement and Gateway” due to minor's actions in the commission of his offense. The probation officer also explained that the “DJJ is the only option available for [minor] at the juvenile level as he is ineligible for Gateway due to his actions in the commission of his offense, not the actual charges filed against him. Should he plead to an amended lesser charge, it would not change the circumstances of his offense thus not alter his eligibility for Gateway.” The report also provided a list and description of the programs at DJJ that would benefit minor's mental and physical health. The list included aggression interruption training, CounterPoint, skill of the week, advanced practice, cognitive behavior interventions for substance abuse, and post-secondary education program, which included college courses. The report also stated that “DJJ has mental health programming to address his depression, PTSD, as well as medical services to address his Crohn's Disease. It should be noted that if [minor's] Crohn's Disease prevents him from materially benefitting from DJJ programming due to consistent or extensive hospital stays, DJJ could rescind his commitment and return him to San Bernardino County.”
This report was prepared for the transfer hearing, not the disposition hearing. The same probation officer authored the reports for both hearings. The judge who presided over the disposition hearing also presided over the pretrial hearing in which the transfer motion was withdrawn.
The probation report also noted the need to rehabilitate minor in a secure facility to protect the safety of the community:
“Despite [minor's] traumas and chaotic home life, this officer is not convinced they contributed to his actual offense. The psychological assessment did not align with many of the statements given by [minor] or his parents, leading to doubt as to the accuracy of each of them. However, based on all the totality of information gathered, this officer feels interventions provided in the secure setting of [the DJJ] could rehabilitate [minor] appropriately. Not only would it remove [minor] from his negative environment but it would allow him to change his criminal thinking, look at his own traumas and how they might impact his actions, and ultimately change his dangerous behaviors. Furthermore, it allows for a substantial amount of supervision afterwards to increase the likelihood he will successfully reenter his community safely and with the ability to secure employment while earing a livable wage.”
Minor's counsel disagreed. Counsel argued that she did not believe minor should be placed at DJJ. She emphasized minor's “limited prior history in the juvenile justice system.” Minor's record showed that in November 2017, minor was charged with committing lewd acts with a minor under Penal Code section 288, subdivision (a). He was placed on informal probation under section 654 and the matter was dismissed after six months. Minor was suspended once in high school for possessing two vials of marijuana, a pipe piece, and a grinder. Counsel also briefed the court that minor “has never been on formal probation” or placed in “any sort of suitable placement or treatment facility.”
Minor's counsel asked for a strict placement. She also argued that a suitable placement would be Gateway or a similar facility. In her brief, counsel stated:
“[T]he least restrictive sentencing alternative would be a very strict probation with both mental health and physical health treatment and maintenance.... [D]espite the use of a weapon in this incident, defense counsel submits that it was truly not an intentional shooting, and does not rise to the level of DJJ treatment. Lacking a prior history of violence and other factors such as gang involvement, defense counsel is urging the Court to allow a long term treatment program such as Gateway.... While bringing a gun into the situation escalates [minor's] culpability due to the potential for and actual harm inflicted, this type of charge is frequently handled at Gateway and long term treatment is available. It is noteworthy that three of the other four boys were sent to Gateway, all of them involved in the planning of the incident involving their ‘friend,' knowing [minor] would supply a weapon-one of the boys specifically requesting that in a text. The fourth boy received probation. Further, it appears that DJJ is closing down at the end of the year and will be losing funding. Finally, [minor] is a young man living with Chrohn's disease with a very compromised immune system. The last place that he should be sent is to a jail facility or DJJ.”
In response to minor's counsel's concerns about the potential closure of DJJ, the court stated: “That is a very valid concern[]. The Court is concerned about that as well. Right now we don't have any alternatives. I'm hoping that DJJ and all the programs run by that institution will continue. At this point the Court is just going to continue to operate as if that program is-all the programs are going to continue. Obviously, if things change, we will have a lot to consider. But the programs right now are-we are not sure what is going to happen.
At the conclusion of the hearing-after hearing arguments of counsel and considering the circumstances of this case-the juvenile court determined that it was necessary to commit minor to DJJ “since it appears that the minor needs a closed setting with substantial counseling toward modification of his behavior.” The court stated:
“It's a difficult decision for this Court to make because of [minor's] difficult upbringing and his history. But I do believe that the services provided by DJJ will help to rehabilitate [minor].
“One of the things that I do believe is that he should take the time now to rehabilitate as opposed to releasing him without rehabilitating him because it usually leads to recidivism. [Minor] is almost an adult and the consequences for crimes as an adult are much greater than consequences for crimes as a minor.
“And so the hope is that through this process that the Court will allow [minor] time to be rehabilitated, but also protecting the community while [minor] is being rehabilitated.”
The court then went on to find that continued custody by minor's parents or guardians “would be detrimental to the minor and the minor's welfare requires that custody be taken.” The court noted that “[t]he parent/guardian is incapable of providing, or has failed or neglected to provide proper maintenance, training and education for the minor.” Therefore, the court stated that it was “fully satisfied that the mental and physical condition and qualifications of the minor are such as to render it probable that the minor will be benefitted by the reformatory educational discipline and other treatment provides by the [DJJ].”
2. LEGAL BACKGROUND
When a minor is adjudged a ward of the juvenile court, “the court may make any reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the minor.” (§ 727, subd. (a)(1).) In determining disposition, “the court shall consider, in addition to other relevant and material evidence, (1) the age of the minor, (2) the circumstances and gravity of the offense committed by the minor, and (3) the minor's previous delinquent history.” (§ 725.5) The court may also consider public safety. (§ 202, subd. (b).) The court has a wide range of options available for placing its wards, including probation, placement in a relative's home, foster home, licensed community care facility, or group home (see § 727, subd. (a)(4)); commitment to “a juvenile home, ranch, camp, or forestry camp” or “the county juvenile hall” (§ 730, subd. (a)(1)); or commitment to the DJJ (§ 731, subds. (a)(4), (c); see People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 306 (Lara)).
To commit a minor to the DJJ, the “court [must be] fully satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefited by the reformatory educational discipline or other treatment provided by the DJJ.” (§ 734; see also In re Eddie M. (2003) 31 Cal.4th 480, 488 [“court must find that [the DJJ] would likely benefit the ward”].) In addition, “the record must show that less restrictive alternatives would be ineffective or inappropriate.” (Lara, supra, 4 Cal.5th at p. 306.) However, “[n]othing bars [the DJJ] for... wards who have received no other placement.” (Eddie M., at p. 488.)
We review a juvenile court's decision to commit a minor to the DJJ for abuse of discretion. (In re Michael D. (1987) 188 Cal.App.3rd 1392, 1395.) “We must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them.” (Ibid.) A reviewing court must examine the evidence at the disposition hearing in light of the purposes of the juvenile court law. (Ibid.) Those purposes include (1) the protection and safety of the public, and (2) rehabilitation of the minor through care, treatment and guidance, which is consistent with the minor's best interest, holds the minor accountable for his or her behavior, and is appropriate for the circumstances. (§ 202, subds. (a), (b) & (d).) The court may also consider punishment that is consistent with rehabilitative purposes and a restrictive commitment as a means of protecting public safety. (See id., subd. (b); Michael D., at p. 1396; In re Christopher B. (2007) 156 Cal.App.4th 1557, 1564.)
3. SUBSTANTIAL EVIDENCE SUPPORTS THE COURT'S DECISION
Minor contends that the juvenile court erred in committing him to DJJ because the court failed to consider less restrictive alternatives. We disagree with minor.
As provided in detail above, the prosecutor and the probation officer both informed the court that the DJJ was the only option available to minor due to the serious nature of his charges, his actions during the commission of the offense, and the length of the programming at Gateway, which was inadequate to properly rehabilitate minor. Minor failed to present any evidence that Gateway was the proper placement, other than arguing that “this type of charge is frequently handled at Gateway and long term treatment is available [at Gateway]” and that three of minor's coparticipants were placed there.
The evidence in this case, however, showed that minor was more culpable in the commission of the offense because he organized and set up the drug deal, he recruited his friends to participate in the drug deal, he brought the gun to the drug deal, he put the bullet in the gun, he racked the gun, and he fired the gun at the victim while the victim was sitting in his car. The juvenile court took note that minor's participation in the offense was greater than the coparticipants. The court also discussed why other less restrictive alternatives would not work. First, the court explicitly found that home supervision “would be detrimental to minor” because his parents were incapable of providing “proper maintenance, training and education for the minor.” Moreover, although the juvenile court did not explicitly discuss minor's placement at Gateway, there was ample evidence in the record that minor was ineligible to be placed in Gateway. “this court cannot assume that the superior court judge, who presided over the dispositional hearing and heard appellant's counsel's arguments, gave them no consideration or completely failed to evaluate appellant's suitable for the [DJJ].” (In re. Ricky H. (1981) 30 Cal.3d 176, 183-184 [the juvenile court judge's “silence... regarding his reasons for making a [DJJ] commitment has never been held to violate statutory or constitutional requirements”].)
Moreover, the juvenile court also determined that committing minor to DJJ would be most beneficial to minor because of the programs offered at DJJ. In this case, as provided in detail ante, the court heard evidence that minor would have access to various programs and services to address minor's mental and physical health needs and substance abuse issues. Some of the programs mentioned were aggression interruption training, Counterpoint, skill of the week, advanced practice to address social skills, cognitive behavioral interventions for substance abuse, post-secondary education program, mental health programs to address minor's PTSD, and “great health services that can deal with his Crohn's or any other health issues that the may have.” Not only were these programs considered by the court, the court also found that minor would benefit from DJJ by receiving “reformatory educational discipline” and “substantial counseling toward modification of his behavior” in a secure and structured environment. The court noted that this would ultimately “increase the likelihood that he would successfully reenter the community safely with the ability to secure employment while earing livable wages.” “A juvenile court must determine if the record supports a finding that it is probable the minor will benefit from being committed to DJJ.” (In re Jonathan T. (2008) 166 Cal.App.4th 474, 486.) “There is no requirement that the court find exactly how a minor will benefit from being committed to DJJ.” (Ibid.) One benefit from a DJJ commitment is the secure environment. “In other words, it is not merely the programs at DJJ which [would] provide a benefit to [a] minor, but the secure setting as well.” (Ibid.) Here, based on the record, we find that substantial evidence supports the court's finding minor would benefit from the structure and treatment available at DJJ.
Notwithstanding, in support of his argument minor relies on In re Carlos J. (2018) 22 Cal.App.5th 1 (Carlos J.), in which an appellate court found that the lower court's decision to commit the minor to the DJJ was not supported by substantial evidence. (Id. at pp. 10-15.) The facts in this case are distinguishable from the facts in Carlos J.
In Carlos J., a 15-year-old minor admitted to assault with a firearm with a criminal street gang enhancement arising out of an incident in which he and a coparticipant fired a number of shots at a member of a rival gang. (Carlos J., supra, 22 Cal.App.5th at p. 4.) Prior to that offense, however, the minor “did not have a substantial record of involvement with the juvenile court system.” (Id. at p. 7, fn. omitted.)
The probation department recommended that the minor be committed to the DJJ after concluding that he was a threat to public safety and that he could receive gang intervention services at the DJJ. (Carlos J., supra, 22 Cal.App.5th at pp. 8-9.) No witnesses testified at the disposition hearing, and the juvenile court was not provided with any information about specific services offered by the DJJ. (Id. at p. 9, 14.) The juvenile court agreed with the probation department and committed the minor to the DJJ, but the Court of Appeal, First Appellate District reversed. (Id.at pp. 10-15.) The Carlos J. court held that “[i]n order for a juvenile court to make the determination of probable benefit... there must be some specific evidence in the record of the programs at the [DJJ] expected to benefit a minor.” (Id. at p. 10.) Carlos J. also concluded that “[w]here a minor has particular needs, the probation department should also include brief descriptions of the relevant programs to address those needs.” (Id. at p. 12.)
In sum, based on the record, substantial evidence supports the juvenile court's determination that minor would benefit from “the services provided by DJJ” to aid in the rehabilitation of minor. Since substantial evidence supports the court's decision, we discern no abuse of discretion.
B. MINOR IS ENTITLED TO 384 DAYS OF PREDISPOSITION CUSTODY CREDIT
Minor contends that the juvenile court erred in calculating his predisposition credit at 383 days. Minor contends that he is entitled to 384 days of predisposition credit. The People concur.
“[A] minor is entitled to credit against his or her maximum term of confinement for the time spent in custody before the dispositional hearing.” (In re Lorenzo L. (2008) 163 Cal.App.4th 1076, 1079.) A partial day in custody, including the day of sentencing, is treated as a whole day for disposition custody credit purposes. (In re Marquez (2003) 30 Cal.4th 14, 25-26.)
In this case, minor was arrested on June 20, 2019, and was in custody until his disposition hearing on July 7, 2020. Hence, minor was in custody for a total of 384 days, not 383 days. Minor, therefore, is entitled to 384 days of predisposition custody credit.
C. NEWLY AMENDED SECTION 781 IS RETROACTIVE AND MINOR'S SENTENCE SHOULD BE REDUCED
Minor contends that “the recent amendment to Welfare and Institutions Code section 731 limiting the length of a minor's commitment to the DJJ is an ameliorative change which must be applied retroactively to persons, like the minor, whose case was not final when the amendment went into effect.” The People agree. We agree with the parties and remand this case to the juvenile court for resentencing under the newly amended section 731, subdivision (c).
At the time minor was sentenced, July 7, 2020, section 731, subdivision (c), authorized the juvenile court to commit a ward to the DJJ for a period not to exceed “the maximum term of imprisonment that could be imposed upon an adult convicted for the same offense.” (Former § 731, subd. (c).) On September 30, 2020, Senate Bill No. 823 (2019-2020 Reg. Sess.), hereafter SB 823, was signed into law. SB 823 amended section 731, subdivision (c), to limit the maximum term of confinement to the DJJ to the middle term of imprisonment that could be imposed upon an adult convicted of the same offense.
In this case, although SB 823 did not go into effect until two months after minor's disposition hearing, the statue applies retroactively because minor's case was not final. (In re Estrada (1965) 63 Cal.2d 740 (Estrada).)
In Estrada, the California Supreme Court held that, absent evidence to the contrary, the Legislature intended amendments to statutes that reduce the punishment for a particular crime to apply to all defendants whose judgment are not yet final on the amendment's operative date. (Estrada, supra, 63 Cal.2d at p. 745; see also Lara, supra, 4 Cal.5th at pp. 306-308, and People v. Brown (2012) 54 Cal.4th 314, 323.) In amending section 731, the Legislature did not expressly declare or indicate that it intended the amendment to be retroactive. However, as provided above, amended section 731, subdivision c, is an ameliorative change in the law that provides for the possibility of a reduced sentence. Therefore, under Estrada, it is appropriate to infer that the Legislature intended that the amendment to apply to cases not yet final when the bill took effect on September 30, 2020. (Lara, supra, 4 Cal.5th at pp. 307-308, fn. 5; Estrada, at pp. 744-745 [“if the amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then, in our opinion, it, and not the old statute in effect when the prohibited act was committed, applies”].) “[A] judgment is not final so long as the courts may provide a remedy on direct review. That includes the time within which to petition to the United States Supreme Court for writ of certiorari.” (In re Pine (1977) 66 Cal.App.3rd 593; 594; see also People v. Garcia (2018) 28 Cal.App.5th 961, 973.)
Here, on February 10, 2020, minor entered an admission that he violated Penal Code sections 664 and 187, subdivision (a), attempted murder, with an alleged personal use of a firearm under Penal Code section 12022.53, subdivision (b). The sentencing triad for adults convicted of the same crime is five, seven, or nine years under Penal Code section 664, subdivision (a). The juvenile court imposed the maximum commitment of nine years, which is the maximum term an adult convicted of the same crime would be sentenced.
As provided ante, at the time of minor's sentencing, the nine-year commitment was authorized under then-applicable section 731, subdivision (c). Under the amended statute, however, minor cannot be committed to the DJJ for a period that exceeds the middle term of imprisonment that could be imposed upon an adult convicted of the same offense. In this case, the middle term is seven years.
Therefore, this case should be remanded to the juvenile court for resentencing.
DISPOSITION
This case is remanded to the juvenile court. On remand, the court shall (1) award one additional day of predisposition credit to minor; and (2) resentence minor pursuant to amended section 731, subdivision (c). In all other respects, the orders and judgment of the juvenile court are affirmed.
We concur: RAMIREZ P. J., RAPHAEL J.