Opinion
F042799.
11-14-2003
In re TOKUNBO O., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. TOKUNBO O., Defendant and Appellant.
Barbara Coffman, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Carlos A. Martinez and Ruth M. Saavedra, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT
Before Wiseman, Acting P.J., Levy, J., and Gomes, J.
FACTS AND PROCEEDINGS
A. May 10, 2002 Hearing
On May 10, 2002, Tokunbo O. admitted an allegation filed in a petition pursuant to Welfare and Institutions Code section 602 alleging that he received stolen property (Pen. Code, §§ 496).[] The court exercised its discretion pursuant to Penal Code section 17 and found the offense to be a misdemeanor. Tokunbo had earlier admitted two felony counts of robbery (Pen. Code, § 211) filed in Riverside County. Tokunbo admitted that the robberies were both committed against elderly victims over age 65 in violation of Penal Code section 667.9.[] Tokunbo was committed to the Kern Crossroads Facility.
Tokunbo had a prior juvenile adjudication on December 7, 2000, for misdemeanor burglary (Pen. Code, § 459).
Tokunbo admitted the allegations in Riverside County on May 8, 2002. The case was transferred from Riverside County for disposition in Kern County.
On April 2, 2002, Tokunbo was with a friend in a van stolen from Enterprise Rent-A-Car.[] Tokunbo admitted he received the van as stolen property. On May 2, 2002, Tokunbo was driving a stolen vehicle. He admitted to an investigating officer that he robbed two elderly women for gas money because they were less likely to fight back.
Because the minor admitted the allegations, and because the only issue on appeal is the maximum term of confinement, we do not provide a detailed summary of the underlying facts of Tokunbos offenses. The facts are derived from the probation reports.
B. March 21, 2003 Hearing
On March 21, 2003, Tokunbo admitted an allegation that on February 19, 2003, he robbed a man (Pen. Code, § 211) and kidnapped him (Pen. Code, § 207).[] After taking several items of property from the victims apartment, Tokunbo forced the victim to drive him a few blocks from the victims residence. Tokunbo told investigators he chose the victim because he was small and unlikely to fight back. Tokunbo admitted an allegation that on February 16, 2003, he received stolen property (Pen. Code, § 496, subd. (a)).
Proceedings against Tokunbo were suspended for one month for an evaluation of Tokunbos mental functioning. An evaluation found Tokunbo competent to stand trial. On March 21, 2003, the juvenile court found Tokunbo competent to stand trial and reinstituted the proceedings against him. Tokunbo entered into a plea agreement at the same hearing.
C. April 4, 2003 Disposition Hearing
The juvenile court found that all local programs had been ineffective in Tokunbos rehabilitation. The court found Tokunbo was a minor with exceptional educational needs. The court made Tokunbo a ward of the court and ordered his commitment to the California Youth Authority (CYA).
The court selected the kidnapping offense, with a maximum term of commitment of eight years, as the principal term. All other offenses and enhancements were subordinate and subject to the one-third of the midterm rule. The court imposed a four-month term for receiving stolen property conviction in 2002 and two one-year terms for the robbery convictions. The court imposed two one year terms for the two elderly victim enhancements. The court imposed an eight-month term for the receiving stolen property conviction in 2003.
Tokunbos maximum term of confinement was set at 13 years. On appeal, Tokunbo contends that the maximum term of confinement for the two elderly victim enhancements was four months for each enhancement, not one year. Respondent concedes the error.
DISCUSSION
Tokunbo contends the juvenile court erred in setting his maximum term of confinement for the elder victim enhancements (Pen. Code, § 667.9) at one year for each enhancement because both enhancements were added to robbery convictions which were subordinate offenses. The term for an elder victim enhancement is one year.
Welfare and Institutions Code section 726, subdivision (c) provides that if the juvenile court elects to aggregate the period of physical confinement on multiple petitions, the maximum term of confinement shall be the aggregate term specified in Penal Code section 1170.1, subdivision (a).[] Subdivision (a) of Penal Code section 1170.1 provides that the subordinate term for each consecutive offense shall consist of the midterm of imprisonment for each felony conviction for which a consecutive term of imprisonment is imposed and shall include one-third the term imposed for any specific enhancement applicable to a subordinate offense. (See In re Jovan B. (1993) 6 Cal.4th 801, 810.)
Aggregation of a juveniles adjudicated offenses is not mandatory, but lies within the juvenile courts discretion. (In re Adrian R. (2000) 85 Cal.App.4th 448, 454.)
For purposes of calculating a juvenile wards maximum confinement or commitment, the Determinate Sentencing Acts enhancement scheme should be applied fully except insofar as the focus of a particular enhancement is "manifestly at odds with the principles of juvenile law." (In re Jovan B., supra, 6 Cal.4th 801, 813.)
The only term set forth in Penal Code section 667.9, subdivision (a) is "a one-year enhancement for each violation." Because the two Penal Code section 667.9 enhancements were added to robbery allegations which were subordinate terms to Tokunbos kidnapping conviction, it violated the sentencing provisions of Penal Code section 1170.1 to impose the entire one-year term for each enhancement. The juvenile court should have imposed a four-month term for each enhancement. Had the court done so, Tokunbos maximum period of commitment to CYA would have been reduced by 16 months to a total term of 11 years 8 months.
DISPOSITION
The case is remanded to the juvenile court for it to reduce the maximum period of confinement for each of Tokunbos Penal Code section 667.9 enhancements from 12 months for each enhancement to 4 months for each enhancement. The court shall prepare and forward to CYA a new commitment order reflecting these changes and that Tokunbos maximum period of commitment is 11 years 8 months. In all other respects, the orders of the juvenile court are affirmed.