Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura No. 2005009068, Roland N. Purnell, Judge
Law Offices of Ira M. Salzman, Ira M. Salzman for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, Erika D. Jackson, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
After a no contest plea, Kyle L. was convicted of resisting an officer through force or violence, a felony. (Pen. Code, § 69.) The court denied appellant's motion to reduce his conviction to a misdemeanor, suspended the imposition of sentence, and placed him on formal probation for 36 months. Appellant argues that his sentence is unauthorized because he was a juvenile at the time of the offense, and the court sentenced him without conducting a fitness hearing. He also argues that the court abused its discretion by denying his request to reduce the offense to a misdemeanor. We affirm the conviction, reverse the order of probation, and remand for sentencing in accordance with section 1170.17, subdivision (c).
All statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of January 22, 2005, appellant, a 17-year-old high school student, and his friend, Dylan G., were visiting appellant's girlfriend, Kimberly E., who lived in apartment 143 of a housing complex at California State University, Channel Islands. Appellant and Dylan G. were intoxicated and started "messing around."
Sometime after 11:00 p.m., campus police officer Jodie King received a report that someone in apartment 143 was making suicidal statements, holding a piece of glass to his throat, and trying to choke someone else in the apartment. King went to the apartment, spoke with appellant and Dylan G., and concluded that they would not harm each other. She told them that campus administrators would decide whether they could stay in the apartment that night. King left to speak with Sarah Toner, the assistant resident director for student housing.
After speaking with Toner, King returned to apartment 143 to direct appellant and Dylan to leave. She found appellant in a bedroom of apartment 143, lying on a bed. She tapped him, and he lunged at her and said he would leave. Appellant pushed King and continued to approach her, although she ordered him to get back. His arms flailed and flew wildly, and he kept approaching her, even after she used her baton and pepper spray to try to stop him. King backed away, but appellant continued pursuing her, into the hallway, outside apartment 143. He said that he had seen her gun and he would force her to shoot him.
During the pursuit, appellant repeatedly struck King. While they were in the hallway, he hit her against the wall of apartment 147, and "her head ricochet[ed] off the wall and [came] back down." He placed his hands on her torso. Fearing that he would grab the gun from her holster, King shot appellant once. He fell down and she handcuffed him. King suffered head and back pain, a large contusion on her elbow, a bruised and scratched forehead, bumps on the back of her head, a concussion, and a knee injury that required surgery.
On April 1, 2005, the prosecution filed a complaint in the criminal court alleging that on January 22, 2005, appellant committed an assault on a peace officer by means of force likely to produce great bodily injury (§ 245, subd. (c)), a Welfare and Institutions Code section 707, subdivision (b) offense, and that appellant was 17 years of age on the date of the offense. (Welf. & Inst. Code, § 707, subd. (d)(1).) Following a preliminary hearing, appellant was held to answer in criminal court, and the prosecution filed an information charging him with the just-described assault charge. The prosecution later filed an amended information adding an allegation that appellant had resisted an officer through force or violence. (§ 69.) On November 1, 2006, appellant pleaded no contest to resisting an officer through force or violence. During sentencing proceedings, the court denied his motion to reduce his conviction to a misdemeanor, suspended the imposition of sentence, and placed him on probation for 36 months, on several conditions, with 360 days in county jail.
DISCUSSION
Appellant argues that his case should be remanded for a fitness hearing because the court sentenced him without conducting such a hearing, as required by section 1170.19. He is correct.
Except as otherwise specified in Welfare and Institutions Code section 707, "when . . . a minor 16 years of age or older [is accused of having] violated the criminal law . . ., the minor generally is subject to the juvenile court law unless the court concludes, upon the motion of the prosecutor and after an investigation and report by a probation officer, that the minor would not be amenable to the care, treatment, and training . . . available through the . . . juvenile court. (§ 707, subd. (a)(1).) In assessing the minor's fitness for treatment under the juvenile court law, the court considers [several factors, including] the minor's degree of criminal sophistication, [and] delinquent history, the success of previous attempts by the juvenile court to rehabilitate the minor, and the . . . gravity of the alleged offense." (Manduley v. Superior Court (2002) 27 Cal.4th 537, 548.)
"Proposition 21, titled the Gang Violence and Juvenile Crime Prevention Act of 1998 and approved by the voters at the March 7, 2000, Primary Election (Proposition 21), made a number of changes to laws applicable to minors accused of committing criminal offenses." (Manduley v. Superior Court, supra, 27 Cal.4th 537, 544-545.) As expanded by Proposition 21, Welfare and Institutions Code section 707, subdivision (d) authorizes prosecutors to bring specified charges against certain minors directly in criminal court, without a prior adjudication by the juvenile court that the minor is unfit for a disposition under the juvenile court law. (Id. at p. 545.) Such actions are called "direct-file" cases in this discussion.
At the time of the offense, appellant was 17 years old. Because he was accused of assault by means of force likely to cause great bodily injury on a peace officer (§ 245, subd. (c)), the prosecution was entitled to, and did, institute a direct-file case against him in the criminal court. (See Welf. & Inst. Code, § 707, subds. (b)(14) & (d)(1), (2).) Appellant was convicted of resisting an officer through force or violence. (§ 69.)
The sentencing powers of a criminal court in a direct-file case are set forth in section 1170.17, subdivision (a), which provides: "When a person is prosecuted for a criminal offense committed while he . . . was under the age of 18 years and the prosecution is lawfully initiated in a court of criminal jurisdiction without a prior finding that the person is not a fit and proper subject to be dealt with under the juvenile court law, upon subsequent conviction for any criminal offense, the person shall be subject to the same sentence as an adult convicted of the identical offense . . ., except under the circumstances described in subdivision (b) or (c)." (Italics added.)
Section 1170.17, subdivision (c) describes appellant's case. He was convicted of resisting arrest through force or violence, "the type of offense which, in combination with [his] age at the time the offense was committed, [made him] eligible for transfer to a court of criminal jurisdiction, pursuant to a rebuttable presumption that [he was] a fit and proper subject to be dealt with under the juvenile court law." (§ 1170.17, subd. (c); Welf. & Inst. Code, § 707, subd. (a)(1).)
When a minor in a direct-file case is convicted of a lesser offense than that charged, without having had a fitness hearing, he is eligible for what could be called a post-conviction fitness hearing. (§ 1170.17, subd. (c).) Section 1170.17, subdivision (c) entitles such a minor to "a disposition under the juvenile court law" unless the following four conditions are met: (1) The district attorney makes a motion for disposition under the criminal law; (2) the court orders the probation department to prepare a written social study and recommendation concerning whether the defendant is a fit and proper subject to be dealt with under the juvenile court law; (3) the criminal court conducts a fitness hearing or suspends proceedings and remands the matter to the juvenile court for a fitness hearing; and (4) the district attorney demonstrates at that hearing, by a preponderance of the evidence, that the defendant is not a fit and proper subject to be dealt with under the juvenile court law based on his degree of criminal sophistication, his prospects of being rehabilitated before expiration of the juvenile court's jurisdiction, his previous delinquent history, the success of previous attempts by the juvenile court to rehabilitate him, and the circumstances and gravity of the offense for which he was convicted. (§ 1170.17, subd. (c); see also § 1170.19, subd. (b).) These four conditions were not satisfied in appellant's case.
Respondent argues that because appellant did not make a specific and timely objection, he forfeited the claim that his sentence was not authorized because the prosecution failed to seek a fitness hearing as required by section 1170.17, subdivision (c). During the November 1, 2006, plea proceedings, appellant's counsel interrupted to preserve an issue and any rights appellant might have under the juvenile law. Counsel stated that the case was "direct-filed under [Welfare and Institutions Code section] 707," a "relatively new statute," and he did not want his "silence to [suggest] that juvenile remedies are off the books." The court responded that it had "an idea that the probation officer [would] address that issue, as well, in the probation report." The prosecution then informed appellant that based upon his plea, he could be placed on probation, or sentenced pursuant to juvenile law and sentenced to the California Youth Authority for a maximum of three years.
During sentencing proceedings on December 12, 2006, appellant's counsel argued that the case should have been filed as a section 69 resisting charge rather than a section 245, subdivision (c) felony assault, and that if it had been filed properly, appellant's case would have been in juvenile court. Counsel added, "We start off with the proposition and the fact that no matter what this Court decides, [appellant] has an adult conviction." Neither the court nor the prosecutor disagreed with the latter statement, although sections 1170.17 and 1170.19 entitled appellant to be sentenced in juvenile court and obtain a juvenile disposition under the circumstances discussed herein.
While section 1170.19, subdivision (a)(4) authorizes the court to impose an adult sentence in lieu of ordering a juvenile disposition, with the knowing and intelligent consent of the prosecution and the minor being sentenced, it cannot do so before causing "to be received into evidence a social study by the probation officer, prepared pursuant to Section 706 of the Welfare and Institutions Code, and . . . stat[ing] that the social study made by the probation officer has been read and considered by the court." (Italics added.) Here, the court sentenced appellant without ordering such a report.
In arguing that appellant forfeited the right to challenge his sentence based on the lack of compliance with sections 1170.17 and 1170.19, respondent asserts that appellant failed to renew his "insufficient, broad objection" at the sentencing hearing. When the court asked whether there was "any legal cause why judgment should not now be pronounced," appellant's counsel responded, "No legal cause, your honor." Counsel indicated that "the key issue at hand . . . [was] . . . whether this [assault charge] should be a felony or a misdemeanor."
In this case, the comments of counsel and the court suggest their misunderstanding of the sentencing requirements for a direct-file case where the minor is convicted of a charge that would not have been eligible for direct filing in criminal court without a fitness hearing. Prior to the entry of the plea, appellant's counsel stated that he did not want his "silence to [suggest] that juvenile remedies are off the books" in this direct-file case under a "relatively new statute." The court responded by stating that it had "an idea that the probation officer [would] address that issue, as well, in the probation report." The record suggests that the court was unaware of its obligation to order a social study and recommendation regarding appellant's fitness under juvenile court law. (§§ 1170.17, subd. (c), 1170.19, subd. (b)(4).) Appellant's counsel also seemed unaware of appellant's right to a juvenile disposition absent the previously discussed prerequisites.
Where a party has forfeited a claim by failing to raise it in the trial court, an appellate court may exercise its discretion and review the claim. (See In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7.) Here, had the required procedures been followed, and had the prosecution failed to prove that appellant was unfit for a juvenile court disposition, he would have been entitled to have "his . . . [criminal] conviction deemed to be a finding of delinquency wardship under Section 602 of the Welfare and Institutions Code" (§ 1170.19, subd. (b)(2)) and to have "his . . . criminal court records accorded the same degree of confidentiality as if the matter had been initially prosecuted . . . in the juvenile court" (id., subd. (b)(3)). Because it appears that the court and counsel for both parties misunderstood these substantial rights, we deem it appropriate to remand appellant's case for a fitness hearing. (See Sheena K., at pp. 881-889.)
Appellant also contends that the court abused its discretion in denying his motion to reduce his section 69 "wobbler" conviction to a misdemeanor. We disagree. A court's decision to reduce wobbler felony charges is subject to the abuse of discretion standard. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) In making its decision, the court properly considered relevant factors, including "'the defendant's appreciation of and attitude toward the offense.'" (Id. at p. 978.) Here, the court addressed appellant's failure to recognize the forceful character of his conduct despite his acknowledgement that he did not follow King's orders. It also recognized its discretion to reduce the offense to a misdemeanor at a later time.
The conviction is affirmed, the order of probation is reversed, and the case is remanded for sentencing in accordance with section 1170.17, subdivision (c).
We concur: GILBERT, P.J. YEGAN, J.