Opinion
F061242 Super. Ct. No. JL003619
08-10-2011
In re JOEL A., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JOEL A., Defendant and Appellant.
Carol A. Koenig, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Cornell, Acting P.J., Gomes, J., and Detjen, J.
APPEAL from a judgment of the Superior Court of Merced County. David W. Moranda, Judge.
Carol A. Koenig, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant, Joel A., a minor, admitted allegations, set forth in a juvenile wardship petition (Welf. & Inst. Code, § 602), that he committed second degree robbery (Pen. Code, §§ 211, 212.5, subdivision (c)), and that a principal in the commission of that offense personally used a firearm (Pen. Code, § 12022.53, subds. (b), (e)(1)). At the subsequent disposition hearing, the juvenile court ordered appellant committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF), and set appellant's maximum term of physical confinement (MTPC) at 15 years, reflecting the five-year upper term that could be imposed on an adult convicted of second degree robbery and the 10-year term prescribed for the firearm use enhancement under Penal Code section 12022.53, subdivision (b).
Except as otherwise indicated, all statutory references are to the Welfare and Institutions Code.
Appellant appeals from the disposition order. He argues that the juvenile court, in setting the MTPC, failed to exercise its discretion under section 731, subdivision (c) (section 731(c)). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Facts
The report of the probation officer states that a City of Merced Police Department report indicated the following: Appellant requested that the victim, a sales clerk in the jewelry department in a Sears store, show him some jewelry. Appellant told the victim which items he wanted to see, and the victim "look[ed] down" as she attempted to locate the items in the jewelry case. She "began to crack open the back side of the jewelry case," and when she looked up, she saw that appellant was pointing a gun "straight at her." Appellant then reached into the case, grabbed several necklaces and ran off. A Sears loss prevention officer gave chase. A police officer arrived on the scene, joined in the chase, and shortly thereafter appellant stopped and was "placed into restraints." The officer found a revolver "tucked away" in the waistband of appellant's pants. The gun was loaded with seven live rounds. At the police station officers found six gold chains and two silver chains on appellant's person.
The Disposition Hearing
The court, at the disposition hearing, stated, "Well, I have heard the arguments from both counsel and the statements from the ... father and the aunt. In addition, I have read all the letters that have been provided by the defense including the minor's letter." The court then noted that, "[o]n one side," appellant "has had some minor troubles" and "appears to have ... good family support," but "[o]n the other side," the instant offense was "extremely serious," "[a] firearm was used," and "[t]he effect on the victim is ... probably profound." The court then engaged in an on-the-record "weighing [of] those things," and thereafter the following exchange occurred:
"THE COURT: [¶] ... [¶] My decision is that it's in the minor's best interests and the interests of society that the minor be sentenced to the [DJF].... [I]n looking at the time I have a problem with the enhancement, the 10 years on the enhancement. That is usually reserved for somebody who used the firearm or shoots the firearm. Here they have given the maximum time for that.[] And the Court is required to look at the facts as to the charges in setting the time. You don't just set the maximum time. You have to pick between the
"MS. CARLSON [deputy district attorney]: Judge, it's a 53(b) enhancement which requires the Court
"THE COURT: Oh, it's a 10, 20, life?
"MS. CARLSON: 10, 20, life.
"THE COURT: Is that what he admitted to?
"MS. CARLSON: Yes.
"THE COURT: Why does the maximum time on [the firearm use] enhancement ... say 10 years then?
"MS. CARLSON: Because the (b) section is 10 years. The (b) is 10, the (c) is 20 and the (d) is life.
"THE COURT: They look at each one of them individually, not in one triad?
"MS. CARLSON: Right, the
"THE COURT: I have got it. Okay. [¶] Well, then the 10 years probably is the appropriate, the only sentence for that particular enhancement.[] [¶] ... [¶] I do find the sustained petition on a June 1st, 2010, robbery which is a 707(b) offense which I'm committing the minor to [DJF] and setting the time of 5 years. I'm adding an enhancement under [section] 12022.53(b) which is a 10 year enhancement. I have considered all the facts and circumstances of the offense ... in setting those terms."
In this discussion, the court clarified that appellant admitted a firearm use enhancement under Penal Code section 12022.53, subdivision (b), for which the prescribed term is 10 years, while the prescribed terms under subdivisions (c) and (d) of Penal Code section 12022.53, neither of which are applicable here, are, respectively, 20 years and 25 years to life.
DISCUSSION
Appellant's claim that the court failed to exercise it discretion under section 731(c) in setting the MTPC is based, in turn, on the claim that the record shows that the court was not aware of the full scope of that discretion. In order to address appellant's claims, we find it useful to examine the interplay between sections 726 and 731.
Section 726, subdivision (c) provides, in pertinent part, that "[i]f 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." (Italics added.) This subdivision goes on to provide, in pertinent part and subject to exceptions not relevant here, that the "maximum term of imprisonment," as that phrase is used in section 726, is, for a felony, the longest of the three time periods prescribed for the offense. (In re Eric J. (1979) 25 Cal.3d 522, 536-538.)
Section 731 pertains to commitments to the DJF. Section 731 has long provided that a minor may not be committed to the DJF for a period in excess of the maximum period of imprisonment for an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court. And effective January 1, 2004, that statute was amended to add the following sentence, now found in section 731(c): "A [minor] committed to [the DJF] 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 [minor] under the jurisdiction of the juvenile court, which may not exceed the maximum period of adult confinement as determined pursuant to this section."
"As originally enacted, this language was part of subdivision (b) of ... section 731. The subdivision was later redesignated subdivision (c), but its language remains materially the same. (Stats. 2007, ch. 257, § 2, p. 2260.)" (In re A.G. (2011) 193 Cal.App.4th 791, 801, fn. 9.)
Thus, taken together, sections 726 and 731 require the juvenile court to make two distinct determinations when committing a minor to the DJF. First, section 726 directs the juvenile court, generally, "to determine the maximum term of imprisonment by choosing the longest period of incarceration applicable to an adult offender.... (§ 726 subd. (c).)" (In re Carlos E. (2005) 127 Cal.App.4th 1529, 1538.) Second, while retaining this requirement, section 731 requires, in addition, that the court determine the minor's MTPC, and that in making that determination, the court exercise its discretion, "based on the 'facts and circumstance of the matter ... that brought or continued' the juvenile under the court's jurisdiction." (In re Julian R. (2009) 47 Cal.4th 487, 498 (Julian R.).) The MTPC may not be more than the maximum term of imprisonment under section 726, but it may be less. (Julian R., at p. 498.)
There is no dispute that the MTPC declared by the court—15 years—is equal to the section 726 "maximum term of imprisonment" for the instant offense and accompanying enhancement. (Pen. Code, § 213, subd. (a)(2) [upper term for second degree robbery is five years], Pen. Code, § 12022.53, subd. (b) [term for firearm use enhancement is 10 years].) There is also no dispute as to the principles summarized above, and that therefore, the court had the discretion under section 731(c) to declare an MTPC of less than 15 years. The parties part company, however, on the question of whether the court was aware of the full scope of, and therefore failed to exercise, that discretion.
The court's remarks indicate that the court arrived at the MTPC by considering the maximum term for each of the component parts of the term that could be imposed on an adult convicted of robbery with a Penal Code section 12022.53, subdivision (b) enhancement. Appellant's argument consists of two parts, each directed at one of those component parts, i.e., appellant argues that the court was not aware that in setting the MTPC, "it could order less than the maximum time on [1] the robbery or [2] the enhancement." We address these parts of the argument in that order.
First, we reject appellant's contention that the record shows that the court was unaware it could, in the exercise of its discretion based on the facts and circumstances that brought appellant before the juvenile court, set an MTPC that included a term for appellant's robbery adjudication that was less than the upper term for robbery. The court explicitly stated that in setting the MTPC it had "considered all the facts and circumstances of the offense and enhancement...." And in addressing the question of the maximum time that could be imposed for the enhancement, the court stated, "the Court is required to look at the facts as to the charges in setting the time. You don't just set the maximum time. You have to pick between the --" (Italics added.) Although the court was interrupted at that point, and although the court made these remarks in the context of setting the portion of the MTPC attributable to the enhancement, in our view these remarks indicate that the court understood the following: In determining the portion of the MTPC attributable to a felony or an enhancement for which one of three terms is possible, the court was not required to choose the upper term ("the maximum time"). Rather, the court could, in its discretion, "pick between" various options, including the lower or middle term, based on its consideration of the relevant facts and circumstances ("the facts as to the charges"). Because the sentencing triad scheme applicable to most felonies, including robbery, provides three options among which to choose, the court's use of the phrase "pick between" indicates it understood it could impose an MTPC based on either the lower or middle term, as well as the upper term. If the court was unaware it could choose the lower, middle or upper term, it would not have referred to the process of "pick[ing] between" options.
Appellant's claim that the court was unaware it could impose less than the maximum term on the firearm use enhancement stands on a different footing. As the People note, "the court's comments are not as clear" regarding the enhancement. Because there is only one possible term for the enhancement—10 years—the court's use of the phrase "pick between" tells us nothing about whether the court thought it could pick some period of time less than 10 years, or that the court was limited to the prescribed term. On this record, we agree with appellant that the record simply does not tell us what the court understood with regard to the scope of its discretion with respect to the term it could impose on the enhancement.
We also agree with appellant, and the People do not dispute, that it was within the juvenile court's statutory discretion to impose less than 10 years on the enhancement. On this point we find instructive In re R.O. (2009) 176 Cal.App.4th 1493 (R.O.). In that case, the juvenile court sustained allegations that the minor committed first degree murder and that he used a firearm in the commission of the crime. The juvenile court concluded it had no choice but to set an MTPC equal to the mandatory sentence applicable to an adult convicted of the same offense, and set the MTPC at 35 years to life.
On appeal, the minor argued that the court erred in concluding it lacked discretion to impose a lesser period of confinement. The People countered that "section 731 not only sets a ceiling on the court's choice of a juvenile's period of confinement, it also sets a floor." (R.O., supra, 176 Cal.App.4th at p. 1498.) "[T]he Attorney General reason[ed] that because an adult convicted of first degree murder with the use of a firearm would be subject to a mandatory indeterminate sentence, it follows that the minimum confinement term for R.O. must be the same, there being no low, middle or upper term that the court could select." (Ibid.)
The appellate court rejected this argument "because the plain language of section 731, subdivision (c), which requires the court to consider the 'facts and circumstances of the matter,' explicitly vests in the court discretion to select a period of confinement that is less than the minimum mandatory indeterminate sentence." (R.O., supra, 176 Cal.App.4th at p. 1498.) Therefore, the court held it had the discretion to impose an MTPC of less than the maximum mandatory indeterminate sentence, even though there was no triad of terms among which to choose. By a parity of reasoning, the juvenile court in the instant case had the discretion to impose a term on the enhancement of less than the 10-year prescribed term.
Appellant argues that because the record does not affirmatively show that the juvenile court was aware that it could, in its discretion under section 731(c), impose less than 10 years on the firearm use enhancement, this court must remand the matter to allow the juvenile court to exercise that discretion. We disagree. As demonstrated above, the record is silent as to the court's understanding of the scope of its discretion in setting a confinement period for the enhancement. Appellant's argument asks us, in effect, to presume from a silent record that the court was not aware of the scope of its discretion. "But such a presumption would [] require [this] court 'to ignore a cardinal principle of appellate review': A '"'judgment or order of the lower court is presumed correct [, and a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.'" [Citation.]'" (Julian R., supra, 47 Cal.4th at pp. 498-499). "'This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' [Citations.]" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) "As [the California Supreme Court] has stated, '[a reviewing court] appl[ies] the general rule "that a trial court is presumed to have been aware of and followed the applicable law. [Citations.]"' 'This rule derives in part from the presumption of Evidence Code section 664 "that official duty has been regularly performed,"' and thus when 'a statement of reasons is not required and the record is silent, a reviewing court will presume the trial court had a proper basis for a particular finding or order.' [Citation.]" (Julian R., at p. 499.)
Appellant argues the presumption discussed above should not apply here, for three reasons. First, he asserts "it would be unreasonable to apply this presumption" because "the record is clear that the court was mistaken as to [its] discretion to order a lesser term." We disagree. Contrary to appellant's assertion, the record does not affirmatively show that the court was mistaken. Rather, as demonstrated above, (1) the record affirmatively shows the court did understand its discretion with regard to the term that could be imposed on the robbery, and (2) the record is silent as to the court's understanding of its discretion with respect to the time it could impose on the enhancement.
Second, appellant argues the presumption that the court was aware of and followed the applicable law should not apply here because the court made its written order of commitment to DJF utilizing an older version of California Judicial Council form JV-732, "Commitment to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice" (unnecessary capitalization omitted), which, unlike the revised version of the form, did not contain a statement that the court considered the individual facts and circumstances of the case in setting the MTPC.Appellant's description of the content of the court's written order is correct, but irrelevant. As is also demonstrated above, the court made specific reference to its consideration of the facts and circumstances of appellant's case in setting the MTPC.
Judicial Council form JV-732, as revised January 1, 2009, allows the court to indicate, by marking a box in item 8(b): "The court has considered the individual facts and circumstances of the case in determining the maximum period of confinement."
Finally, appellant argues that the presumption in question should not apply because remand would "further[] the stated goals of the statute: greater local control, enhanced accountability of the Department of Juvenile Justice and local determination of the term of confinement in DJF." However, appellant cites no authority, nor are we aware of any, for the proposition that these considerations trump, or otherwise render inoperative, the rule in question here, which is both a well established "general principle of appellate practice" and "an ingredient of the constitutional doctrine of reversible error.'" (Denham v. Superior Court, supra, 2 Cal.3d at p. 564.) We will apply the general rule here, and presume the court was aware that it could order less than the maximum confinement time on the firearm use enhancement. Appellant has not demonstrated that the court misunderstood the scope of its discretion under section 731(c).
DISPOSITION
The order appealed from is affirmed.