In re Brian K.

Filed 9/10/07 In re Brian K. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Robert J. McIntyre, Judge. Affirmed.

Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jennifer Jadovitz and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.

1. Introduction^[1]

Brian K. appeals from a judgment declaring him a ward of the juvenile court and committing him to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ), formerly known as the California Youth Authority (CYA).

Defendant contends that the juvenile court erroneously determined that his theoretical maximum term of physical confinement was 10 years 10 months.^[2] Relying on Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (hereafter Cunningham), defendant contends that the juvenile court erroneously computed the theoretical maximum term by using the upper term of six years for the base term. He also contends the juvenile court did not expressly exercise its discretion under section 731, subdivision (b), by imposing the upper term.

2. Factual and Procedural Background

Defendant was born in April 1989. He was first adjudged a ward of the court under section 602 at age 14 in April 2003. In May 2006, defendant was charged with multiple truancies, testing positive for methamphetamine, and other offenses. A bench warrant was subsequently issued when defendant failed to appear for several court hearings.

In October 2006, a petition subsequent alleged defendant had committed a violation of section 417.4, exhibiting an imitation firearm, as well as resisting arrest, a misdemeanor. ( 148, subd. (a)(1).) The probation report described an incident in which defendant threatened another juvenile at a shopping mall with a toy gun. Defendant was a member of a skateboarding crew or gang, HKD, meaning hate, kill, destroy. Defendant admitted resisting arrest and the imitation-firearm allegation was dismissed. Defendants maximum confinement time, based on 12 violations between July 2002 and October 2006, was calculated to be 10 years 10 months with credit for time served.

After the hearing, the juvenile court continued defendant as a ward of the court and committed him to DJJ with the theoretical maximum confinement time of 10 years 10 months. The major portion of the time was an upper term of six years for first degree burglary from a petition dated April 26, 2004. The court commented in detail about defendants strengths, weaknesses, and prospects. The court specifically stated the maximum at ten years and ten months . . . is the appropriate amount.

3. Discussion

Defendant contends the trial court should have sentenced him to the midterm of four years, not the upper term of six years, on the base term for first degree burglary, reducing his sentence from 10 years 10 months to eight years eight months. He relies on Cunningham in an argument that has already been rejected in the recent decision of Christian G., supra, 153 Cal.App.4th 708 with which we agree and quote here at length: In Cunningham the United States Supreme Court held that Californias determinate sentencing law violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments insofar as it permits a court to impose an upper term sentence based on facts found by the court and established only by a preponderance of the evidence. [Citation.] Except for a prior conviction, aggravating factors must be either admitted by the defendant or found by a jury and proved beyond a reasonable doubt. [Citation.] Cunningham overruled a contrary holding in People v. Black (2005) 35 Cal.4th 1238. In Black the California Supreme Court held that, when a trial court exercises discretion to select the upper term sentence based on facts found by the court, the defendants right to a jury trial is not violated.

Thus, [defendant] argues, if he had been sentenced as an adult offender, the trial court could not have imposed [the] upper term[] . . . because the aggravating factors had neither been admitted by him nor found true by a jury. [Defendant] maintains that, pursuant to sections 731, subdivision (b), the maximum term for a juvenile court commitment is controlled by what the maximum term would be on the same offense in adult court. Since the maximum available to an adult convicted of appellants offense would be limited under Cunningham to the middle term, the juvenile court erred in exceeding this maximum. Therefore, the maximum period of confinement must be reduced based upon the use of the middle term[] . . . . (Christian G., supra, 153 Cal.App.4th at pp. 712-713.)

Christian G. affirmed [t]here is no right to jury trial in juvenile proceedings. (In re Javier A. (1984) 159 Cal.App.3d 913, 949 et sec., collecting and analyzing the California Supreme Court cases which so held.) [Defendant] cannot, at the same time, claim both the rights attendant to adult sentencing proceedings (Cunningham ) while reaping the fruits attendant to juvenile proceedings (the opportunity to be released on parole years before an adult would be released). (Christian G., supra, 153 Cal.App.4th at p. 713.)

Section 731, subdivision (b), provides: A minor committed to the Department of the Youth Authority 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 Department of the Youth Authority 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. This section does not limit the power of the Youth Authority Board to retain the minor on parole status for the period permitted by Section 1769.

Citing In re Jacob J. (2005) 130 Cal.App.4th 429, 435, Christian G. explains that maximum term of imprisonment, as used in sections 726 and 731, means the longest of the three time periods set forth in section 1170, subdivision (a)(3), but without the need to follow the provisions of subdivision (b) of Section 1170 of the Penal Code [middle term imposed absent mitigating or aggravating circumstances] . . . . [Citation.] Thus, a minors theoretical maximum term of physical confinement for an offense may not exceed an adults maximum term of imprisonment for the same offense based on imposition of the upper term.

The second sentence of section 731, subdivision (b), was added in 2003 by Senate Bill No. 459. (Stats. 2003, ch. 4, 1.) It was intended to give the juvenile court discretion to impose less than the adult maximum term of imprisonment when committing a minor to CYA and to require the court to set that term of confinement based on the facts and circumstances of each case. [Citation.] (In re Jacob J., supra, 130 Cal.App.4th at p. 437.) [W]here, as here, the juvenile court sets the maximum term of physical confinement at CYA at the maximum term of 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.)

In exercising its discretion whether to set the minors theoretical maximum term of physical confinement at less than the maximum term of imprisonment, the juvenile court is not required to follow the procedures applicable to adult sentencing. The second sentence of section 731, subdivision (b), has not inserted the adult determinate sentencing scheme into the juvenile indeterminate disposition scheme. . . . Senate Bill No. 459 created the Youth Authority Board [now the Board of Parole Hearings], which decides the actual length of a minors confinement at CYA. [Citation.] While [the second sentence of] section 731, subdivision (b), does allow the court to set an earlier outside limit to the indeterminate period of confinement, based on the facts and circumstances of the case, the basic system for determining a minors actual length of stay, based on the administrative boards decision, remains unchanged. (In re Sean W. (2005) 127 Cal.App.4th 1177, 1188.)

There is nothing in the legislation or its history to suggest the Legislature sought to make sweeping changes in the commitment of a minor to CYA from an indeterminate term to a determinate term, nor is there any provision that the Legislature is restricting the juvenile court to the adult sentencing triad. Proof the juvenile courts decision is not tied directly to the adult system is found in the language utilized; the juvenile court is to consider the facts and circumstances of the matter, rather than being restricted solely to the aggravating or mitigating circumstance scheme for adults. The juvenile courts determination must be tied to the purposes of the juvenile system, which include the protection of the public as well as the rehabilitation of the minor. (In re Carlos E. (2005) 127 Cal.App.4th 1529, 1542.)

Thus, in setting a minors theoretical maximum term of physical confinement based on the facts and circumstances of the case, section 731, subdivision (b), does not compel a juvenile court to adhere to the Cunningham restrictions or the aggravating/mitigating circumstances scheme applicable to the sentencing of adult felons. A contrary interpretation of the statute would ignore the distinction between the determinate sentencing law, which provides for fixed terms designed to punish, and the juvenile justice system, which provides for indeterminate terms designed to rehabilitate. Any parallel between the adult felon and the juvenile delinquent who have violated the same penal statute ends at the point of beginning of two separate, distinct punishment/rehabilitation statutory schemes. The commitment of the youth, processed through the juvenile court, to the Youth Authority for the maximum period under Welfare and Institutions Code section 731 is in no way the equivalent of the commitment of the adult to prison for the same crime for the upper term based upon aggravation factors. [] When the juvenile is committed for the maximum period, he is in fact being committed for an indeterminate period. The adult sent to prison for the upper term prescribed will be confined for that specific period less any behavior-performance credits. [Citations.] At the heart of the Determinate Sentence Law is the concept of a fixed term. [] In contrast, to the juvenile, the maximum term is simply the outside time limit for a statutory program aimed directly at rehabilitation. (In re Robert D. (1979) 95 Cal.App.3d 767, 774-775.) (Christian G., supra, 153 Cal.App.4th at pp. 714-715.)

The foregoing answers defendants contention that the theoretical maximum term of physical confinement for a juvenile must be based on the due process right of proof beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358, 363-364.) Unlike for an adult, the juvenile court need not make any factual findings in imposing the upper term. ( 726, subd. (c); In re Jesse F. (1982) 137 Cal.App.3d 164, 168-170; In re Ismael A. (1989) 207 Cal.App.3d 911, 914-921.) Nor does a juvenile have a Sixth Amendment right to a jury trial. Section 726 expressly defines the maximum term of commitment as the upper term without requiring any factfinding or the consideration of a presumptive midterm.

Nor did the juvenile court fail expressly to exercise its statutory discretion to impose a lower term. The juvenile court conducted two disposition hearings. Defense counsel argued defendant should not be placed with DJJ, citing his good progress while at juvenile hall. In contrast, the district attorney emphasized defendants repeated violations for more than four years, including acts of theft and violence, his drug use, gang involvement, and penchant for running away from programs in which he had been placed. The probation officer also testified in support of the maximum term and commitment to DJJ.

The juvenile court, as previously noted, made a detailed statement about why it committed defendant to DJJ for the maximum term. In doing so, it met its obligation to set the maximum term of adult confinement after considering the particular facts and circumstances of the matter before it. (In re Jacob J., supra, 130 Cal.App.4th at pp. 437-438.)

Furthermore, recent case law has held defendants maximum period of confinement established pursuant to [] sections 726 and 731 is not based on impermissible factors under Cunningham; instead, it is based on the recidivist factor deemed constitutionally permissible in Cunningham when applied to an adult offender. Thus, even if Cunningham were applicable, the maximum period of confinement in this case does not exceed the maximum sentence that could be imposed on an adult with a comparable record of prior offenses. (In re Antonio P. (2007) 153 Cal.App.4th 1540, ____].)

4. Disposition

Accordingly, the trial court did not err in determining appellants theoretical maximum term of physical confinement to be 10 years 10 months. We affirm the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/McKinster

Acting P. J.

s/King

J.

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^[1] All statutory references are to the Welfare and Institutions Code.

^[2] [W]e use the phrase, theoretical maximum term of physical confinement because the actual term is indeterminate and is governed by certain guidelines. (In re Jovan B. (1993) 6 Cal.4th 801, 811, 816-818.) In theory, there is no statutory minimum time of physical confinement before a juvenile offender can be released. (In re Christian G. (2007) 153 Cal.App.4th 708 (Christian G.).)