Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 52-000797
BUTZ, J.Sergio L., a minor, appeals from an order of the Placer County Juvenile Court ordering him into the custody of the Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ).
On appeal, the minor contends (1) the juvenile court miscalculated his maximum confinement period, and (2) remand is necessary for the juvenile court to comply with the discretionary sentencing required by Welfare and Institutions Code section 731, subdivision (b). We agree with the minor’s contentions and shall remand for the necessary determination.
Undesignated statutory references are to the Welfare and Institutions Code.
PROCEDURAL HISTORY
In June 2001, the minor admitted two counts of sexual battery on a child (Pen. Code, § 243.4, former subd. (d)(1)), one count of unauthorized entry of a dwelling (Pen. Code, § 602.5), and two counts of child molestation (Pen. Code, § 647.6, former subd. (a)), all of which were misdemeanors. He was declared a ward of the court and placed on probation. In October 2005, the minor admitted a charge of felony oral copulation with a person under 18 years of age (Pen. Code, § 288a, subd. (b)(1)) and to being in violation of curfew and his probation. In September 2006, he was committed to DJJ for a maximum period of 110 months: a base term of 96 months for the 2005 felony and subordinate terms of 14 months for the 2001 misdemeanors.
DISCUSSION
I. Incorrect Maximum Term for Principal Count
The minor argues that the court miscalculated his maximum period of confinement by 60 months, and the People agree. We too agree.
The court calculated the minor’s maximum confinement period as follows: for felony oral copulation--the upper term of 96 months (eight years); for the two child molestation counts--four consecutive months each (one-third of 12 months), i.e., a total of eight consecutive months; and for the two counts of sexual battery on a child and a single count of unauthorized entry--two months consecutive for each (one-third of six months), i.e., a total of six consecutive months. This adds up to a total maximum term of confinement of 110 months (nine years four months).
A problem arises because the maximum sentence for a violation of Penal Code section 288a, subdivision (b)(1) is 36, not 96, months. Consequently, the court miscalculated the minor’s maximum term of confinement by 60 months.
II. Exercise of Discretion Required by Former Section 731, Subdivision (b)
The minor contends the record fails to show, as is required, that the juvenile court made the discretionary sentencing determination required by former section 731, subdivision (b). The People argue the record shows that the court did exercise its discretion. We agree with the minor.
Former section 731, subdivision (b) provided in relevant part: “A minor committed to the [DJJ] 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 [DJJ] 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.”
We refer to the version of section 731, subdivision (b) in effect in 2006 at the time of the minor’s disposition hearing. (See Stats. 2003, ch. 4, § 1, eff. April 8, 2003, operative Jan. 1, 2004.)
Welfare and Institutions Code section 726, subdivision (c) (2d par.), states in pertinent part: “As used in [Welfare and Institutions Code] Section 731, ‘maximum term of imprisonment’ means the longest of the three time periods set forth in [Penal Code] Section 1170[, subdivision (a)(2)].”
“[W]here . . . the juvenile court sets the maximum term of physical confinement at [DJJ] 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. (2005) 130 Cal.App.4th 429, 438, italics added.) “Thus, while [section 731, subdivision (b)] 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.” (Ibid.)
According to the reporter’s transcript of the disposition hearing conducted September 22, 2006, the only issue discussed by the parties was whether the minor should be committed to DJJ or to some less restrictive program, such as Delancey Street. The minor’s maximum period of confinement was never mentioned, let alone discussed at the hearing. The clerk’s transcript for September 22 committing the minor to DJJ simply states the maximum period for which an adult could have been committed.
Even after discounting the 60 months which was erroneously imposed, the confinement period is still the maximum which could have been imposed on an adult--36 months.
Notwithstanding the failure of the juvenile court to properly determine the minor’s maximum period of confinement, the People argue that the record shows the court exercised its discretionary sentencing choice because the court set forth in detail the minor’s history before the juvenile court. In making this argument, the People fail to recognize that the court’s sole purpose in detailing the minor’s history was to support its determination that DJJ was the appropriate disposition. Nothing in the record shows the court ever considered, or was aware of, its duty to consider a sentence less than the maximum which could be imposed upon an adult. Consequently, remand for such a calculation is required.
DISPOSITION
The matter is remanded for the juvenile court to comply with the discretionary sentencing procedure set forth in former Welfare and Institutions Code section 731, subdivision (b) and to recalculate the minor’s maximum period of confinement. In all other respects, the order of commitment is affirmed.
We concur: BLEASE, Acting P.J., CANTIL-SAKAUYE, J.