Opinion
H049833
07-27-2023
In re D.U., a Person Coming Under the Juvenile Court Law. v. D.U., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. 19JV43729I)
BAMATTRE-MANOUKIAN, ACTING P.J.
I. INTRODUCTION
The juvenile court committed the minor, D.U., to a secure youth treatment facility based on a juvenile wardship petition. Pursuant to a plea agreement, the minor admitted to felony inflicting corporal injury on an intimate partner (Pen. Code, § 273.5, subd. (a)), with an enhancement for personally inflicting great bodily injury under circumstances involving domestic violence (Pen. Code, §§ 1203, subd. (e)(3), 12022.7, subd. (e)), and felony assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)). The juvenile court set the minor's maximum term of confinement to a secure youth treatment facility at 10 years, later modifying the maximum term of confinement to 12 years two months.
The minor raises four challenges to the juvenile court's commitment order and a subsequent modification of this order that set his maximum term of confinement at 12 years two months. First, he alleges that the maximum term of confinement the court set exceeds an age ceiling that he states is contained in Welfare and Institutions Code section 875, subdivision (c)(1)(A). Second, the minor alleges that this matter must be remanded to the juvenile court because the juvenile court did not exercise discretion in setting the maximum term of confinement. Third, the minor asserts that precommitment credits should have been applied to the maximum term of confinement. Finally, in supplemental briefing, the minor contends that punishment for one of the counts in the petition should be stayed under Penal Code section 654's prohibition against multiple punishments in certain circumstances, and as a result, this matter should be remanded so the juvenile court can decide which count to stay punishment for.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We conclude that the record indicates the juvenile court did not set the minor's maximum term of confinement "based upon the facts and circumstances of the matter or matters that brought or continued the ward under the jurisdiction of the court and as deemed appropriate to achieve rehabilitation," as required under section 875, subdivision (c) effective June 30, 2022. Based on the parties' agreement that the juvenile court was required to make this determination, we remand the matter to the juvenile court to conduct a new dispositional hearing at which it shall set a maximum term of confinement in accordance with this discretion. The Attorney General also concedes that the minor is entitled to have precommitment credits applied to his maximum term of confinement. Although the Attorney General argues that the credits may be applied without remand, because we are already remanding this matter to the juvenile court, we order the juvenile court to apply the minor's precommitment credits on remand. On remand, the minor may raise his remaining issues regarding the age-related language in section 875, subdivision (c)(1)(A) and the applicability of Penal Code section 654 to the juvenile court in the first instance.
II. BACKGROUND
On November 7, 2021, police responded to a domestic disturbance report at the apartment the minor shared with his girlfriend, the couple's baby, and the minor's mother. The minor's girlfriend reported that the minor "dragged her out of bed, struck her in the head for 15 minutes, kicked her, and strangled her," applying enough pressure to block her breathing for about five seconds. She stated that the baby then began to cry, and the minor tended to the baby. The minor's girlfriend reported that after the minor tended to the baby, the minor resumed the assault, continuing to strike his girlfriend for another 45 minutes until she told the minor that she needed to change the baby's diaper. The minor's mother then arrived home and called police, and the minor fled the apartment. The minor's girlfriend drove herself to the hospital, where she was found to have suffered a broken nose and other injuries. That night, according to a probation report, the minor "self-surrendered to Juvenile Hall and was detained without incident."
Prior to the assault on his girlfriend, the minor was the subject of numerous petitions under section 602. The minor was initially adjudged a ward of the court in August 2019 for misdemeanor brandishing a deadly weapon (Pen. Code, § 417, subd. (a)(1)). Later petitions alleging various criminal activity followed in December 2019, February 2020 (two petitions), June 2020, November 2020, and December 2020.
Section 602, subdivision (a) states: "Except as provided in Section 707, any minor who is between 12 years of age and 17 years of age, inclusive, when he or she violates any law of this state or of the United States or any ordinance of any city or county of this state defining crime other than an ordinance establishing a curfew based solely on age, is within the jurisdiction of the juvenile court, which may adjudge the minor to be a ward of the court."
Based on the minor's actions toward his girlfriend, the prosecution filed another wardship petition on November 9, 2021. The petition alleged felony inflicting corporal injury on an intimate partner (Pen. Code, § 273.5, subd. (a); count 1) and felony assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4); count 2). Both counts also alleged an enhancement that the minor personally inflicted great bodily injury under circumstances involving domestic violence (Pen. Code, §§ 1203, subd. (e)(3), 12022.7, subd. (e)). The petition also stated an intent to ask the juvenile court to aggregate the multiple counts in this matter and all prior sustained petitions, thereby increasing the maximum term of confinement pursuant to section 726. At the time of this petition, section 726 stated as follows: "If the court elects to aggregate the period of physical confinement on multiple counts or multiple petitions, including previously sustained petitions adjudging the minor a ward within Section 602, the 'maximum term of imprisonment' shall be the aggregate term of imprisonment specified in subdivision (a) of Section 1170.1 of the Penal Code . . . ." (§ 726, subd. (d)(3), as amended by Stats. 2021, ch. 18, § 7.)
Pursuant to a plea agreement, the minor admitted the allegations in counts 1 and 2, and the enhancement allegation for count 1. In exchange, the enhancement allegation for count 2 was dismissed. In agreeing to this disposition, the minor signed a general waiver and admission acknowledging that he would be placed on probation at least until age 19, that neither count would be an" 'adult' strike," and that "[t]ogether with my prior offenses, my maximum custody time is 10 years, 0 months."
At the dispositional hearing on January 27, 2022, the juvenile court ordered that the minor be continued as a ward of the court. The juvenile court received recommendations from the probation officer, including that the court set a maximum term of confinement at "10 years [without] prejudice." Defense counsel's only comment about the recommendations involved the recommended maximum term of confinement of 10 years. Defense counsel requested time to submit briefing on this issue because the defense believed the minor's maximum term of confinement should be three years. The juvenile court responded: "At this snapshot in time, the Court is going to set the maximum term of confinement at ten years, but that is without prejudice to both counsel briefing issues for the [individual rehabilitation plan] hearing."
Defense counsel then submitted a brief that noted the version of section 875 then in effect stated: "The maximum period of confinement shall not exceed the middle term of imprisonment that can be imposed upon an adult convicted of the same offense or offenses." (§ 875, subd. (c)(2), as amended by Stats. 2021, ch. 18, § 12.) Thus, defense counsel asserted that the minor's maximum term of confinement should be three years because the middle term of imprisonment for the minor's offense of felony assault with force likely to produce great bodily injury is three years.
The individual rehabilitation plan hearing took place on March 1, 2022. At the time of this hearing, section 875 did not specifically indicate that the juvenile court could aggregate the maximum term of confinement on multiple counts or multiple petitions. (§ 875, subd. (c), as amended by Stats. 2021, ch. 18, § 12.) However, at the hearing, the juvenile court rejected the defense's argument to limit the maximum term of confinement to three years. The juvenile court reasoned that it had the authority to aggregate the minor's period of confinement based on the multiple counts represented in the instant petition along with the previously sustained petitions regarding the minor. As a result, the juvenile court ruled as follows: "So the Court will adopt the aggregate maximum term of 12 years 2 months, and as a practical matter, it won't make any difference today, but I think that is what I am required to do." The juvenile court also stated: "Please have no hesitancy of taking me up on this because I think we need clarity on it." The maximum term of confinement of 12 years two months was the same as the term listed on the individual rehabilitation plan for the minor. The juvenile court did not explain how the previously stated maximum term of confinement of 10 years was arrived at, or how it calculated the new aggregate maximum term of 12 years two months. The juvenile court did not explain what specifically it believed it was "required to do" with regard to the maximum term of confinement, though the comment was made in the context of the court's ruling regarding aggregation. Defense counsel did not further argue that the maximum term of confinement should be limited.
The hearing began on February 28, 2022, but the court then continued the proceedings to the next day after declaring it needed more information to determine an appropriate individual rehabilitation plan for the minor.
The minute order from this hearing reflects that the juvenile court adopted an aggregate maximum term of confinement of 12 years two months. This appeal followed.
III. DISCUSSION
The minor's notice of appeal states that the minor is appealing the "[d]ispositional hearing held on 1/27/22 and 3/1/22." The minor's appeal actually challenges the commitment order from the dispositional hearing on January 27, 2022, and a March 1, 2022 modification of that commitment order. The minor's dispositional hearing took place on January 27, 2022, at which the juvenile court took actions consistent with the duties the court is charged to perform at a dispositional hearing, as outlined in section 875, subdivisions (a) through (c). The March 1, 2022 hearing was an individual rehabilitation hearing, which takes place after the dispositional hearing and at which "the court shall receive, review, and approve an individual rehabilitation plan . . . for the ward that has been submitted to the court by the probation department and any other agencies or individuals the court deems necessary for the development of the plan." (§ 875, subd. (d)(1).) The juvenile court has the authority to change, modify, or set aside any order made by the court, subject to certain procedural requirements. (§ 775.) The minor does not challenge the terms of his individual rehabilitation plan, and the juvenile court initially set the minor's maximum term of confinement at 10 years "without prejudice," revisiting the issue at the March 1, 2022 hearing and modifying the maximum term of confinement to 12 years two months. We therefore consider the minor to be appealing the January 27, 2022 order and the modification of that order that took place on March 1, 2022.
A. Maximum Term of Confinement
The minor asserts that under amendments to section 875 that took effect on June 30, 2022, after his proceedings, remand is required to allow the juvenile court to reconsider the maximum term of confinement "based upon the facts and circumstances of the matter or matters that brought or continued the ward under the jurisdiction of the court and as deemed appropriate to achieve rehabilitation." (§ 875, subd. (c)(1), as amended by Stats. 2022, ch. 58, § 41.) The minor argues that although this language was not included in section 875 at the time of his proceedings, the addition of this language represents an ameliorative change entitled to retroactive application to his case, and thus this matter should be remanded to the juvenile court to allow it to consider how to exercise its discretion.
The Attorney General does not concede that the addition of this language in section 875 is "retroactive." However, the Attorney General does take the position that juvenile courts were required at the time of the minor's dispositional hearing to exercise the discretion now provided for in setting maximum terms of confinement, because the later amendments to section 875 "are mere clarifications of existing law." Thus, both parties agree that the juvenile court was required to set the minor's maximum term of confinement in accordance with the discretion spelled out in the later amendments to section 875. The Attorney General then argues: "Given that the amendments at issue did not change the law, on a silent record, this Court must presume the juvenile court performed its statutory duty and considered the requisite 'facts and circumstances' in setting the maximum term of confinement." In addition, the Attorney General asserts that the record demonstrates that the juvenile court was aware of this discretion and exercised it accordingly.
"In reviewing the juvenile court's decision, '[t]he . . . court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.' [Citation.]" (J.N. v. Superior Court (2018) 23 Cal.App.5th 706, 714.)" 'All exercises of discretion must be guided by applicable legal principles . . . . [Citations.] If the court's decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, the court has not properly exercised its discretion under the law. [Citation.] Therefore, a discretionary order based on an application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion and is subject to reversal. [Citation.]' [Citation.]" (Id. at pp. 714715.)"' "Defendants are entitled to sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court."' [Citation.]' "[A] court that is unaware of its discretionary authority cannot exercise its informed discretion."' [Citation.] 'Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing.' [Citation.]" (People v. Czirban (2021) 67 Cal.App.5th 1073, 1096-1097 (Czirban).) When a statute retroactively supplies a trial court with sentencing discretion, remand is required unless the record provides a "clear indicator of how the trial court would exercise its new discretion . . . ." (People v. Dryden (2021) 60 Cal.App.5th 1007, 1033 (Dryden).)
Section 875 was added effective May 14, 2021 as part of an effort to "require a court to consider, as an alternative to commitment to the Division of Juvenile Justice, placement in local programs established as a result of the realignment of wards from the Division of Juvenile Justice to county-based custody." (Sen. Bill No. 92 (2021-2022 Reg. Sess.).) The Legislature has announced its intent to close the Division of Juvenile Justice (DJJ) "through shifting responsibility for all youth adjudged a ward of the court . . . to county governments ...." (§ 736.5, subd. (a).) DJJ facilities are scheduled to close on June 30, 2023. (§ 736.5, subd. (e).)
Sections 726 and 731 "together govern the physical confinement of minors committed to DJJ." (In re Ernesto L. (2022) 81 Cal.App.5th 31, 38 (Ernesto L.).) "Section 726 governs the confinement of any minor who 'is removed from the physical custody of the minor's parent or guardian as the result of an order of wardship made pursuant to Section 602,' and section 731 further governs the confinement of any such minor who is committed to DJJ. [Citations.]" (Ibid.) When committing a minor to DJJ, the juvenile court "shall set a maximum term based upon the facts and circumstances of the matter or matters that brought or continued the ward under the jurisdiction of the court and as deemed appropriate to achieve rehabilitation." (§ 731, subd. (b).) This language in section 731, subdivision (b) "unambiguously provides that the juvenile court has discretion to set a maximum term of physical confinement, based on the facts and circumstances of the case, so long as that term does not exceed the maximum period that could be imposed on an adult convicted of the same offense." (In re Sean W. (2005) 127 Cal.App.4th 1177, 1183 (Sean W.).)
In In re Jacob J. (2005) 130 Cal.App.4th 429, 431-432 (Jacob J.), the juvenile court committed the minor for a period not to exceed four years under section 731. On appeal, the minor contended that the discretion language in section 731 (which had recently been added to the statute) required remand, because the record did not indicate that the juvenile court set a maximum term of confinement based on the facts and circumstances of the matter. (Jacob J., supra, at p. 432.) The Court of Appeal noted that the record was silent as to whether the juvenile court considered the facts and circumstances of the minor's case in setting the maximum term of confinement. (Id. at pp. 437-438.) The court recognized that "[o]n a silent record, the 'trial court is presumed to have been aware of and followed the applicable law' when exercising its discretion. [Citations.]" (Ibid.) However, the court held that "where, as here, the juvenile court sets the maximum term of physical confinement . . . 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." (Id. at p. 438.) The court thus remanded the matter to the juvenile court to set a new maximum term of confinement in accordance with the juvenile court's exercise of this discretion. (Id. at p. 439.)
Other reviewing courts have reached similar conclusions that the juvenile courts in those cases failed to exercise their discretion in setting the maximum term of confinement under section 731. In In re R.O. (2009) 176 Cal.App.4th 1493, the juvenile court "concluded that it had no choice but to set a maximum term of confinement equal to the mandatory sentence applicable to an adult convicted of the same offense." (Id. at p. 1497, fn. omitted.) The Court of Appeal held: "The authority to consider the 'facts and circumstances of the matter' necessarily implies the authority to impose a term shorter than the term applicable to an adult for the same crime. Therefore, the court erred when it concluded that it lacked discretion to impose a term of confinement less than the indeterminate term that would have been imposed on an adult convicted of the same offenses." (Id. at pp. 1497-1498, fn. omitted.) Likewise, in Sean W., the Court of Appeal observed that "[t]he [juvenile] court, counsel, and the probation department indicated no awareness of court discretion in setting the maximum term of confinement." (Sean W., supra, 127 Cal.App.4th at p. 1182.) Therefore, the court remanded the matter to permit the juvenile court "to make an informed determination of [the minor's] maximum term of confinement." (Id. at p. 1189.) Similarly, in In re Carlos E. (2005) 127 Cal.App.4th 1529, the Court of Appeal concluded that "[t]he juvenile court set the maximum term of confinement at four years, based solely on the maximum term an adult would face." (Id. at p. 1533.) Thus, the court remanded the matter to the juvenile court, holding that the juvenile court "erred in its failure to set a maximum term of physical confinement . . . based upon the facts and circumstances of the matter before it." (Id. at p. 1543.)
The California Supreme Court disapproved of Jacob J. in In re Julian R. (2009) 47 Cal.4th 487 (Julian R.).) In Julian R., the juvenile court inserted" '10 years 2 months'" as the maximum term of confinement on the preprinted commitment form (form JV-732) following the dispositional hearing. (Id. at p. 493.) This period was the same term the probation officer had indicated was the maximum period of confinement for an adult convicted of the same offenses. (Ibid.) On appeal, the minor raised two issues: first, that the juvenile court should have orally pronounced the maximum period of confinement instead ofjust entering it on the form; and second, that the juvenile court failed to determine whether the facts and circumstances of his crimes warranted a maximum period of confinement shorter than the adult maximum prison term for the same offenses. (Id. at pp. 493-494.)
As to the first issue in Julian R., the California Supreme Court held that no oral pronouncement of the maximum term of confinement is required under sections 726 and 731. (Julian R., supra, 47 Cal.4th at pp. 496-498.) The court rejected the minor's argument that without an "oral pronouncement, with a statement of reasons, it will be difficult for a reviewing court to determine whether the juvenile court has indeed considered a period of confinement based on the crime's facts and circumstances." (Id. at p. 498.) The court considered this concern "overstated," particularly because a recent revision to form JV-732 "requires the juvenile court both to state the duration of the maximum period of confinement and to acknowledge that it has 'considered the individual facts and circumstances of the case in determining the maximum period of confinement.'" (Ibid.)
As to the minor's second argument in Julian R., that the juvenile court failed to determine whether the facts and circumstances of his crimes warranted a shorter maximum term of confinement, the California Supreme Court recognized: "Section 731 sets two ceilings on the period of physical confinement to be imposed. The statute permits the juvenile court in its discretion to impose either the equivalent of the 'maximum period of imprisonment that could be imposed upon an adult convicted of the offense or offenses' committed by the juvenile [citation] or some lesser period based on the 'facts and circumstances of the matter or matters that brought or continued' the juvenile under the court's jurisdiction [citation]." (Julian R., supra, 47 Cal.4th at p. 498.) The California Supreme Court recognized that the juvenile court did not state on the record that it considered whether the facts and circumstances of the minor's case warranted a lesser maximum period of confinement. However, the court held that" 'we apply the general rule "that a trial court is presumed to have been aware of and followed the applicable law. [Citations.]"' [Citation.]" (Id. at p. 499.) The court stated that the Court of Appeal in Jacob J. failed to apply the presumption that the juvenile court was aware of and followed the applicable law. (Julian R., supra, at p. 499.) Thus, based on "the circumstances of this case," the Julian R. court presumed that the juvenile court exercised its discretion in setting a maximum term of confinement and that in so doing, the juvenile court determined that the appropriate term was a period equal to the maximum adult term. (Ibid.) In so holding, however, the court stated: "It would have been better practice if the juvenile court had stated on the record that it had considered, based on the 'facts and circumstances' of Julian's offenses, a confinement period less than the prison term for an adult convicted of the same offenses [citation], and that in the exercise of its discretion it had decided against such a shorter confinement. In light of newly revised Judicial Council form JV-732 requiring the juvenile court to acknowledge its consideration of the crime's facts and circumstances [citation], in the future a court's exercise of its discretion will be evident." (Id. at p. 499, fn. 4.)
Because the minor in the instant case was committed to a secure youth treatment facility, section 875 governed the minor's proceedings, not sections 726 and 731. At the time of the juvenile court's January 2022 order regarding the minor's maximum term of confinement and the March 2022 modification of that order, section 875 contained no reference to a juvenile court's ability or obligation to exercise discretion in setting the maximum term of confinement. Instead, section 875, subdivision (c) read as follows: "In making its order of commitment, the court shall additionally set a maximum term of confinement for the ward in a secure youth treatment facility. The maximum term of confinement shall represent the longest term of confinement in a facility that the ward may serve subject to the following: [¶] (1) A ward committed to a secure youth treatment facility under this section shall not be held in secure confinement beyond 23 years of age, or two years from the date of the commitment, whichever occurs later. However, if the ward has been committed to a facility based on adjudication for an offense or offenses for which the ward, if convicted in adult criminal court, would face an aggregate sentence of seven or more years, the maximum period of confinement shall not exceed the ward attaining 25 years of age or two years from the date of the commitment, whichever occurs later. [¶] (2) The maximum period of confinement shall not exceed the middle term of imprisonment that can be imposed upon an adult convicted of the same offense or offenses." (§ 875, subd. (c), as amended by Stats. 2021, ch. 18, § 12.)
Four months after the minor's proceedings in this case concluded, amendments to the statute took effect that provide that the juvenile court "shall additionally set a maximum term of confinement for the ward based upon the facts and circumstances of the matter or matters that brought or continued the ward under the jurisdiction of the court and as deemed appropriate to achieve rehabilitation." (§ 875, subd. (c)(1), as amended by Stats. 2022, ch. 58, § 41.) This new language mirrors the language in section 731, subdivision (b) that grants discretion to the juvenile court.
In proceedings under section 726 and section 731, the juvenile court is required to take two related but distinct actions: to impose a maximum term of confinement based on the term of imprisonment that may be imposed on an adult convicted of the same offense or offenses, and to exercise discretion in imposing a lesser maximum term of confinement based on the facts and circumstances of a minor's case as necessary to achieve rehabilitation. (See Julian R., supra, 47 Cal.4th at p. 498 ["Section 731 sets two ceilings on the period of physical confinement to be imposed"]; In re Alex N. (2005) 132 Cal.App.4th 18, 26 (Alex N.) ["The length of a minor's confinement . . . is restricted by both the [maximum period of imprisonment under section 726] and the 'maximum term of physical confinement set by the court based upon the facts and circumstances' of the minor's offenses . . . ."].) At the time of the minor's proceedings, section 875 only explicitly provided for one type of maximum term of confinement determination, established by the middle term of imprisonment that can be imposed upon an adult convicted of the same offenses. The statute contained no reference to the decision to impose a potentially lower maximum term of confinement based on the facts and circumstances of the minor's case.
The record contains no indication that the juvenile court was aware of its discretion to set a potentially lower maximum term of confinement based upon the facts and circumstances of the minor's case. The probation officer's recommendations, which the juvenile court relied upon, contain no discussion about the facts and circumstances of the minor's case in the context of determining a maximum term of confinement. Defense counsel's brief concerning the maximum term of confinement did not raise the issue of the court's discretion. Counsel also did not raise this issue in the minor's proceedings. The record also does not include a form JV-732, the form that Julian R. noted requires the juvenile court in section 731 cases to acknowledge its consideration of the crimes' facts and circumstances.
The Judicial Council has recently approved a new form that requires the juvenile court to list a maximum term of confinement "[a]fter having considered the individual facts and circumstances of the case under Welfare and Institutions Code section 875(c) ...." (Judicial Council Forms, form JV-733.)
Instead, the limited discussion at the minor's dispositional hearing indicates that the juvenile court did not believe it had the discretion that the statute later specified it possessed. After stating that it could aggregate the period of physical confinement on the minor's multiple counts and multiple petitions, the juvenile court stated: "So the Court will adopt the aggregate maximum term of 12 years 2 months, and as a practical matter, it won't make any difference today, but I think that is what I am required to do." (Emphasis added.) This statement could be read that the juvenile court believed it was required to aggregate the offenses, that it believed it was required to impose the maximum term of confinement it calculated based on the term of imprisonment for an adult convicted of the same offenses, or both. The juvenile court's additional statement inviting counsel to "have no hesitancy of taking me up on this because I think we need clarity on it" does not specify what exactly the court believed it was "required to do," but it does indicate that the juvenile court recognized that some portion of section 875, subdivision (c) lacked clarity, and it indicates that the juvenile court did not believe that it had any discretion to not aggregate the offenses and/or to determine the minor's maximum term of confinement based on the facts and circumstances of this case, as section 875, subdivision (c) later expressly authorized the court to do.
Amendments to section 875, subdivision (c) after the minor's proceedings clarified the juvenile court's discretion in two respects. First, the amendments specified the discretion to set a maximum term of confinement based on the facts and circumstances of the case. (§ 875, subd. (c)(1).) Second, the later amendments specified that the juvenile court may set a maximum term of confinement based on the aggregate term of imprisonment specified in Penal Code section 1170.1, subdivision (a), "[i]f the court elects to aggregate the period of physical confinement on multiple counts or multiple petitions . . . ." (§ 875, subd. (c)(1)(B), as amended by as amended by Stats. 2022, ch. 58, § 41.) Under analogous language in sections 726 and 731, the failure of the juvenile court to recognize its discretion on either matter warrants remand. (Alex N., supra, 132 Cal.App.4th at pp. 24-27.) Thus, the juvenile court's statement, however interpreted, suggests that the court did not understand that it possessed discretion the statute later expressly provided the juvenile court had.
The Attorney General argues that the juvenile court understood that it possessed the discretion to set a lower maximum term of confinement because the court was accustomed to this discretion under section 731. The Attorney General also asserts that two actions by the juvenile court demonstrated its understanding that it possessed such discretion. First, the Attorney General points to the decision by the juvenile court to aggregate the offenses for purposes of the minor's maximum term of confinement, even though at the time of the minor's dispositional hearing, section 875, subdivision (c) contained no language regarding aggregation. The Attorney General asserts that this action demonstrates that "the juvenile court understood that the same principles governing DJJ commitments-which permitted aggregation of petitions-applied to [secure youth treatment facility] commitments under section 875," including the discretion to impose a lower maximum term of confinement based on the facts and circumstances of the case. Second, the Attorney General asserts that the maximum term of confinement of 12 years two months the juvenile court imposed was lower than the maximum term of confinement of 12 years 11 months it could have imposed, demonstrating that the court exercised discretion in setting this term.
We do not find the Attorney General's arguments persuasive. The fact that the juvenile court recognized that the ability to aggregate carried over to the new statute does not demonstrate that the juvenile court recognized that its discretion in setting a maximum term of confinement based on the facts and circumstances of the minor's case also necessarily carried over. To the contrary, the juvenile court's "required to do" statement indicates that it did not believe that this discretion from section 731 applied, as the later amendments specified. Additionally, the fact that the juvenile court imposed a lesser maximum term of confinement than the period the Attorney General contends it could have imposed does not demonstrate the juvenile court exercised discretion in setting this term. Nothing in the record indicates the juvenile court determined the minor's maximum term of confinement based on its discretion as opposed to a calculation of the middle term of imprisonment for an adult convicted of the same offenses. The record suggests the juvenile court merely adopted the 12-year-two-month term listed in the individual rehabilitation plan, and this plan contained no discussion of setting this maximum term based upon the facts and circumstances of the minor's case.
Based on the narrow facts of this case, we find this case distinguishable from the California Supreme Court's decision in Julian R. In Julian R., a statute was in place at the time of the dispositional hearing that expressly gave the juvenile court the discretion to set a lower maximum term of confinement based on the facts and circumstances of the minor's case. (Julian R., supra, 47 Cal.4th at p. 495.) The juvenile court's dispositional hearing in Julian R. took place in February 2007. (Id. at p. 493.) By that point, several Court of Appeal decisions had already held that the juvenile court was required to consider the facts and circumstances of a minor's case when setting a maximum term of confinement, putting the juvenile court in Julian R. on notice about its discretion and allowing the California Supreme Court to presume the juvenile court exercised this discretion. Here, no such clear statutory language was in place under the version of section 875 in existence at the time of the minor's proceedings. In addition, unlike in Julian R., here the record is not silent as to whether the juvenile court understood its discretion. Instead, the juvenile court stated it believed it was "required to" take the action it did, in terms of aggregating the minor's offenses and/or setting the maximum term of confinement. The record here also does not include a form JV-732, the form that Julian R. noted with approval would alleviate future concerns as to whether juvenile courts took their discretion into account in setting maximum terms of confinement. Because the facts of this particular case are distinguishable from Julian R., we determine that remand is appropriate to allow the juvenile court to determine whether to aggregate the minor's offenses and previously sustained petitions, and to set a maximum term of confinement based upon the facts and circumstances of this case as deemed appropriate to achieve rehabilitation.
We reject the Attorney General's additional argument that "any error was harmless because it is not reasonably probable the court would have calculated a lesser maximum term had it considered the facts and circumstances of [the minor's] matters." Remand is appropriate in this situation unless the record provides a "clear indicator of how the trial court would exercise its new discretion . . . ." (Dryden, supra, 60 Cal.App.5th at p. 1033.) The juvenile court here observed that the minor's instant offenses represented "an ugly domestic violence issue which endangered both the girlfriend and the baby as I understand it." However, this single statement does not indicate whether the juvenile court would have imposed the same maximum term of confinement had it recognized its discretion to impose a lesser term based on the facts and circumstances of the minor's case. The record references several "facts and circumstances of the matter" that the juvenile court might have considered in determining whether a lower maximum term of confinement might be appropriate. (§ 875, subd. (c)(1).) Under these circumstances, the juvenile court did not clearly indicate that it would not have exercised its discretion favorably to the minor. (Dryden, supra, at pp. 1032-1033.)
Because we have concluded that the minor's appeal is properly characterized as an appeal from the juvenile court's order at the January 27, 2022 dispositional hearing and the subsequent modification to that order on March 1, 2022, it is appropriate to remand this matter for a new dispositional hearing. Upon remand, the juvenile court shall set a maximum term of confinement "based upon the facts and circumstances of the matter . . . as deemed appropriate to achieve rehabilitation." (§ 875, subd. (c)(1).) We express no opinion about how the juvenile court should exercise its discretion. (Alex N., supra, 132 Cal.App.4th at p. 27; Czirban, supra, 67 Cal.App.5th at pp. 1096-1097.)
B. Remaining Issues
Our decision to remand this matter for a new dispositional hearing means we need not address the minor's argument regarding the applicability of the age-related language in section 875, subdivision (c)(1)(A). The minor may raise this issue in the juvenile court at the new dispositional hearing.
With regard to the minor's argument regarding the applicability of Penal Code section 654, the minor may raise this issue on appeal even though no objection on this basis was made in the juvenile court. (People v. Scott (1994) 9 Cal.4th 331, 354 fn. 17; People v. Leonard (2014) 228 Cal.App.4th 465, 499.) However, because we are remanding this matter for a new dispositional hearing, it is appropriate to allow the minor to raise this issue at the new dispositional hearing for the juvenile court to decide in the first instance.
Finally, our disposition of this matter will allow the juvenile court to correct the issue the minor raised about his precommitment credits. The minute order from the January 27, 2022 dispositional hearing specified the minor was to receive 447 days of precommitment credits. However, the minute order from the March 1, 2022 individual rehabilitation plan hearing does not note that the minor was to be credited with any precommitment credits, though it does state: "Prior orders not in conflict with today's orders remain in full force and effect."
The version of section 875, subdivision (c) in effect at the time of the minor's proceedings did not specify whether and how a minor's precommitment credits were to be applied to the maximum term of confinement the juvenile court imposed. (§ 875, subd. (c), as amended by Stats. 2021, ch. 18, § 12.) Amendments that took effect after the minor's proceedings state that "[p]recommitment credits for time served must be applied against the maximum term of confinement as set pursuant to this subdivision." (§ 875, subd. (c)(1)(C), as amended by Stats. 2022, ch. 58, § 41.) The Attorney General concedes that "the juvenile court neglected to apply [the minor's] 447 days of precommitment credits against his maximum term of confinement." However, the Attorney General takes the position that this court may correct the error by deducting 447 days of precommitment credits from the 12 year two month maximum term of confinement.
The minor notes that in Ernesto L., the reviewing court held that "when a minor is committed to DJJ, section 731 requires the juvenile court to apply the minor's precommitment credits against the actual maximum custodial term the court imposes, not the theoretical maximum exposure term." (Ernesto L., supra, 81 Cal.App.5th at p. 41.) In other words, Ernesto L. held that "the minor's precommitment credits must be applied against the 'maximum term [the court sets] based upon the facts and circumstances' under that statute-i.e., the maximum custodial term. [Citation.]" (Id. at p. 43.) The minor asks this court to extend the holding of Ernesto L., which involved section 731, by requiring the juvenile court in this section 875 case to apply precommitment credits against any lower maximum term of confinement the court sets in the exercise of its discretion.
Because we are already remanding this matter to the juvenile court to set a maximum term of confinement in light of its discretion under section 875, subdivision (c), and because the parties agree that precommitment credits should be applied, we direct the juvenile court to apply precommitment credits in accordance with section 875, subdivision (c)(1)(C) upon remand.
IV. DISPOSITION
The January 27, 2022 order of the juvenile court committing the minor to a secure youth treatment facility for a maximum term of confinement of 10 years, and the subsequent March 1, 2022 modification of the order setting the minor's maximum term of confinement at 12 years two months, are reversed. The matter is remanded to the juvenile court to conduct a new dispositional hearing consistent with this opinion, including exercising the juvenile court's discretion to (1) determine whether or not to "aggregate the period of physical confinement on multiple counts or multiple petitions, including previously sustained petitions adjudging the minor a ward," and (2) set a maximum term of confinement "based upon the facts and circumstances of the matter or matters that brought or continued the ward under the jurisdiction of the court and as deemed appropriate to achieve rehabilitation." (Welf. &Inst. Code, § 875, subds. (c)(1), (c)(1)(B).) Additionally, the juvenile court is directed to apply precommitment credits for time served in its order of commitment, in accordance with Welfare and Institutions Code section 875, subdivision (c)(1)(C).
WE CONCUR: DANNER, J., WILSON, J.