From Casetext: Smarter Legal Research

In re Roberto V.

California Court of Appeals, Fifth District
Mar 28, 2008
No. F053399 (Cal. Ct. App. Mar. 28, 2008)

Opinion


In re ROBERTO V., a Person Coming Under the Juvenile Court Law. F053399 California Court of Appeal, Fifth District March 28, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Stanislaus County. Super. Ct. No. JUV505892, Linda McFadden, Judge.

Hilda Scheib, 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, Assistant Attorney General, Harry Joseph Colombo and John G. McLean, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

THE COURT

Before Wiseman, Acting P.J., Cornell, J., and Kane, J.

In December 2005, appellant, Roberto V., admitted allegations in a wardship petition (Welf. & Inst. Code, § 602) that he committed a lewd and lascivious act with a child under the age of 14 (Pen. Code, § 288, subd. (a)). He was subsequently committed to the Department of Corrections and Rehabilitation, Juvenile Justice (DCRJJ) for a maximum period of physical confinement (MPPC) of 144 months (12 years). (CT 211) On November 22, 2006, in an unpublished opinion (case No. F049971) this court found that the record did not reflect the juvenile court’s awareness of its discretion to set a lower MPPC based on the facts and circumstances of Roberto’s case and we remanded the matter. (CT: 210, 218-219.)

Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.

On July 3, 2007, the juvenile court again set Roberto’s MPPC at 12 years. On appeal, Roberto contends the court erred when it: 1) used the aggravated term for his molestation offense to calculate his maximum term of confinement; and 2) set his MPPC at 12 years. (CT: 239.) We will affirm.

FACTS

The court initially committed Roberto to the DCRJJ on January 31, 2006, and set his MPPC at 12 years as follows: the aggravated term of eight-years for Roberto’s molestation offense (Pen. Code, § 288, subd. (a)); two eight-month terms for two vehicle theft offenses (Veh. Code, § 10851); an eight-month term for a second degree burglary offense (Pen. Code, §§ 459/460, subd. (b)); an eight-month term for a felony possession of a stolen vehicle offense (Pen. Code, § 496d); a four-month term for a misdemeanor evading a police officer (Veh. Code, § 2800.2); a four-month term for a misdemeanor possession of stolen property offense (Pen. Code, § 46, subd. (a)); a four-month term for a misdemeanor possession of a stolen vehicle offense; a two-month term for a misdemeanor battery offense; and a two-month term for a petty theft offense.

On remand, at a hearing on July 3, 2007, the court stated,

“The Court does recognize, and did recognize then, for the record I’ll make it very clear, that the Court has discretion to set any length of confinement time here. The Court is even not restricted by the triads that have been set in the Penal Code. The Court can order anywhere from zero days up to the maximum confinement time that the Court did impose here.

“And so at this time, any further comments, then, other than what was made at the time of disposition, the previous disposition hearing?

“The Court has reviewed then the updated progress reports from the [DCRJJ] as well. So that doesn’t really change this Court’s opinion as far as what should happen.” (RT 1203)

After the court rejected defense counsel’s argument that Cunningham v. California (2007) 549 U.S. ___, [127 S.Ct. 856] required the court to use the middle term for Roberto’s molestation conviction in calculating his MPPC, the court stated,

“Court is going to find that the Court’s initial sentence was correct. And the Court did realize, although I guess I did not make it clear on the record, the Court had complete discretion as to what to give the minor.

“This Court imposed the aggravated term because this Court felt that this was -- aggravated term, that this minor needed maximum time to rehabilitate with the [DCRJJ]. Obviously, he’ll be eligible for parole in a shorter period of time.” (RT 1205)

Thereafter, in setting Roberto’s MPPC, the court reiterated the terms noted above except that it did not mention Roberto’s misdemeanor possession of a stolen vehicle offense, the misdemeanor petty theft offense, and the misdemeanor battery offense. The court then stated, “And so the [MPPC] is twelve years.”

DISCUSSION

Use of the Aggravated Term to Calculate Roberto’s MPPC

In Cunningham v. California, supra, 549 U.S. ___ [127 S.Ct. 856], the United States Supreme Court found that “[o]ther than a prior conviction, [citations] … ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’” (Cunningham, supra, 549 U.S. ___ [127 S.Ct. at p. 864].)

Section 726, subdivision (c) provides: “If 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.”

Roberto relies on this section to contend Cunningham applies to juvenile proceedings. Thus, according to Roberto, the court violated his right to due process when it used the aggravated term to calculate his MPPC based on facts he did not admit or that were not found true by a jury beyond a reasonable doubt. We rejected a similar contention in In re Alex U. (2007) 158 Cal.App.4th 259. Further, none of Roberto’s arguments persuade us to reconsider our holding in that case. In accord with Alex U., we conclude the court did not err when it used the aggravated term for Roberto’s molestation offense to calculate his MPPC.

Roberto’s MPPC

Roberto contends the court erred in setting his MPPC because “the terms imposed on the offenses on which he was sentenced [result in] an aggregate term of 136 months, not the 144 months the court imposed.” He further contends that his MPPC must be reduced to 136 months (11 years 4 months). We will reject these contentions.

As noted above, section 726, subdivision (c) requires the court to calculate a minor’s MPPC, as does section 731, subdivision (c). Here, the court complied with these sections when it set Roberto’s MPPC at 12 years. Further, the record is clear the court misspoke when it omitted any reference to three of Roberto’s offenses. Moreover, neither section requires the court to individually identify the components that make up a minor’s MPPC. Nor has Roberto provided any authority for his implicit suggestion that the failure to specifically enumerate the individual components of his MPPC limits his MPPC to the aggregate amount of the terms enumerated. Accordingly, we reject Roberto’s contention that his MPPC must be reduced to 11 years 4 months because the court forgot to enumerate three components of the 12-year MPPC it set. (Cf. In re Billy M. 139 Cal.App.3d 973, 982 [court rejected minor’s claim that the failure to refer to one count in calculating minor’s maximum term of confinement was an act of leniency requiring that his MPPC reflect imposition of no sentence on that count].)

Section 731, subdivision (c) provides: “A ward committed to the Division of Juvenile Facilities may not be held in physical confinement for a period of time in excess of the maximum period of imprisonment that could be imposed upon an adult convicted of the offense or offenses that brought or continued the minor under the jurisdiction of the juvenile court. A ward committed to the Division of Juvenile Facilities 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 that brought or continued the ward under the jurisdiction of the juvenile court, which may not exceed the maximum period of adult confinement as determined pursuant to this section….”

DISPOSITION

The judgment is affirmed.


Summaries of

In re Roberto V.

California Court of Appeals, Fifth District
Mar 28, 2008
No. F053399 (Cal. Ct. App. Mar. 28, 2008)
Case details for

In re Roberto V.

Case Details

Full title:In re ROBERTO V., a Person Coming Under the Juvenile Court Law.

Court:California Court of Appeals, Fifth District

Date published: Mar 28, 2008

Citations

No. F053399 (Cal. Ct. App. Mar. 28, 2008)