In re Dave R.

Filed 9/20/07 In re Dave R. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Hugo Loza, Commissioner.

Kenneth J. Hutz, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.

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In August 2006, appellant Dave R., a minor, admitted allegations that he committed two misdemeanors: battery (Pen. Code, 242) and escape from a juvenile facility (Welf. & Inst. Code, 871, subd. (a)). Following the disposition hearing, the court ordered appellant committed to the Department of Corrections and Rehabilitation, Juvenile Justice (DCRJJ). The court declared appellants maximum term of physical confinement (MTPC) (Welf. & Inst. Code,  731, subd. (b)) to be five years five months, by aggregating the terms for the instant offenses and offenses adjudicated in prior wardship proceedings, and awarded appellant 608 days of predisposition credit.

On appeal, appellant contends the court (1) incorrectly calculated the MTPC; (2) erroneously failed to exercise its statutory discretion in setting the MTPC; and (3) erroneously failed to declare whether an offense of which appellant was adjudicated in a 2003 proceeding was a felony or misdemeanor. We will find merit in the first of these arguments, decline to reach the second, reject the third and remand for further proceedings.

DISCUSSION

Calculation of MTPC

Appellant contends the court incorrectly calculated the MTPC. Specifically, he argues that the court erred by including in the MTPC a felony-length term for a battery of which appellant was adjudicated on June 29, 2004.

Background

In May 2004, appellant admitted allegations of misdemeanor battery (Pen. Code,  242) and assault by means of force likely to cause great bodily injury ( 245, subd. (a)). On June 8, 2004, the court ordered appellant committed to the Tulare County Long Term Detention Facility and, by aggregating the terms for the assault and offenses adjudicated in prior wardship proceedings, set the MTPC at three years six months.

In a wardship petition filed June 15, 2004, it was alleged that appellant committed felony battery (Pen. Code,  242), and that he did so for the benefit of, at the direction of or in association with, a criminal street gang, with the specific intent to promote, further or assist in criminal conduct by gang members, within the meaning of section 186.22, subdivision (d) (hereafter Penal Code section 186.22(d)).^[1]

At the hearing on June 29, 2004, the following exchange took place:

[Defense counsel]: . . . [] [Appellant is] prepared to admit the battery as a misdemeanor, with a misdemeanor gang allegation . . . .

THE COURT: All right. Sounds fine to me.

[Deputy District Attorney]: So what he would be doing, admitting Count 1, 17(b).

THE COURT: Which in turn makes it a one year, which in turn[] means four months more. . . .

Appellant confirmed that he understood that as a result of his admissions, his maximum confinement time will be increased and will be three years and ten months. Later in the proceeding, appellant admitted [t]he charge of battery, . . . a misdemeanor, and the accompanying Penal Code section 186.22(d) allegation. Shortly thereafter, appellant waived preparation of the dispositional social study, and the court readjudged appellant a ward of the court, ordered him recommitted to the Tulare County Long Term Detention Facility and stated that appellants confinement time has been increased to three years ten months.

Appellant admitted the instant offenses in August 2006. The report of the probation officer filed August 21, 2006 (2006 RPO), recommended an MTPC of five years five months, consisting of, inter alia, three years for SA, 186.22(d) PC.^[2]

At the disposition hearing on August 31, 2006, defense counsel argued that the court should deem the 186.22(d), a misdemeanor, and compute the accurate time with that being a misdemeanor. The court rejected this argument, and adopted the probation officers recommendation for the MTPC.

Analysis

Penal Code section 186.22(d) provides that where, as here, the court has found true a section 186.22(d) allegation and the underlying offense is a misdemeanor, the underlying offense may be punished, in the courts discretion, either as a misdemeanor, i.e., by incarceration in county jail up to one year, or as felony, by a prison term of up to three years. ( 186.22(d); Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900 & 909 [section 186.22(d) is an alternate penalty provision that enables prosecutors to more severely punish gang-related misdemeanors].) Appellant argues that the parties agreed in 2004 that the battery of which he was adjudicated on June 29, 2004,^[3]in connection with which he admitted a section 186.22(d) allegation, would be punished as misdemeanor, and therefore the court erred in setting an MTPC in the instant proceeding which included a felony-length periodthree yearsfor that offense. This error, appellant argues further, requires that the matter be remanded to allow the court to declare a new MTPC.

The Attorney General (AG) seems to concede the court made some sort of error in setting the MTPC, and he agrees that the matter should be remanded. The AG suggests, however, that contrary to appellants argument, the agreement did not preclude the court from including in the MTPC a felony-length period for appellants second 2004 battery. The AG asserts, the matter should be remanded for consideration of whether the terms of 2004 plea agreement limited appellants sentence on the enhancing allegation to a term of no more than one year in county jail.

As we explain below, we agree with appellant that the court erred in setting the MTPC, and we agree with both parties that remand is required. However, on remand, we will direct the court to determine both the maximum term of physical confinement under Welfare and Institutions Code^[4]section 731what we refer to as the MTPCand the maximum term of imprisonment under section 726. At the outset, we clarify what is meant by each of these phrases by examining the interplay between sections 726 and 731.

Section 726, subdivision (c) provides, in pertinent part, that if 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, subject to exceptions not relevant here, as follows: the maximum term of imprisonment, as that phrase is used in section 726, is, for a felony, the longest of the three periods prescribed for the offense; the maximum term of imprisonment for a misdemeanor is the longest term of imprisonment prescribed by law; and where the court elects to aggregate confinement periods for multiple felony offenses, the maximum term of imprisonment must be specified in accordance with the formula set forth in Penal Code section 1170.1, i.e., the sum of the principal term (the longest term imposed for any of the offenses) and subordinate terms (one-third of the middle term imposed for each other offense). Subordinate misdemeanor terms are calculated as one-third of the maximum term for such offenses. (In re Eric J. (1979) 25 Cal.3d 522, 536-538.)

Section 731 pertains to commitments to the DCRJJ. Section 731, subdivision (b) (hereafter section 731(b)) has long provided that a minor may not be committed to the DCRJJ for a period in excess of the maximum term 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: A minor committed to [the DCRJJ] also may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement [what we refer to as the MTPC] 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. ( 731(b), italics added.)

Thus, taken together, sections 726 and 731 require the juvenile court to make two distinct determinations when committing a minor to the DCRJJ. 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 set a maximum term of physical confinement in the DCRJJ. (Ibid.) Further, as this court held in Carlos E., section 731 requires that in making the latter determination, the court exercise its discretion, based upon the facts and circumstance of the matter . . . which brought . . . the minor under the jurisdiction of the juvenile court. (In re Carlos E., supra, 127 Cal.App.4th at p. 1538.) The maximum term of physical confinement under section 731(b), i.e., the MTPC, may not be more than the maximum term of imprisonment under section 726. (In re Carlos E., supra, at p. 1542.) However, it may be less. (Ibid.)

Here, as indicated above, the court, adopting the recommendation set forth in the August 2006 RPO, declared an MTPC of five years five months. The 2006 RPO indicates that this figure was calculated, utilizing the formula set forth in Penal Code section 1170.1, by choosing three years under Penal Code section 186.22(d) for appellants second 2004 battery as the principal term, and adding subordinate terms for the instant offenses and offenses adjudicated in prior wardship proceedings.^[5] However, as we explain below, the courts choice of a felony-length term on the 2004 battery as the principal term was error.

We reject the AGs suggestion that under parties 2004 agreement, the court retained the discretion to impose a felony-length confinement period for appellants second 2004 battery adjudication. In the course of the on-the-record recitation of the agreement, the court specifically stated that appellants admissions would result in an increase of four months in the MTPC set in the previous proceeding on June 8, 2004. As indicated above, the portion of the maximum term of imprisonment under section 726 attributable to a misdemeanor is one-third of the maximum term for the offense ( 726; Pen. Code, 1170.1; In re Eric J., supra, 25 Cal.3d at pp. 536-538), and four months is equal to one-third of the one-year maximum term under Penal Code section 186.22(d) for a misdemeanor violation of Penal Code section 242. Moreover, the court declared an MTPC of three years ten months, four months greater than the previously set MTPC. On this record, it is clear that under the parties agreement, appellants second 2004 battery was to be punished as a misdemeanor, notwithstanding appellants admission of, and the true finding on, the Penal Code section 186.22(d) allegation.

Because the MTPC cannot exceed the maximum term of imprisonment, the following question remains: What is the maximum term of imprisonment, calculated in conformity with the agreement of the parties, i.e., on the basis of a misdemeanor-length term for the second 2004 battery? The 2006 RPO indicates appellant had suffered an adjudication of one other offense designated a felony: his adjudication of grand theft. That offense is punishable as a misdemeanor, or as a felony by a term of 16 months, two years or three years (Pen. Code, 489, 18), and the record indicates appellant admitted the offense as a felony. Thus, it is still possible that the calculation for appellants maximum term of imprisonment could include a principal term of three years. However, this does not insure that the court could again declare an MTPC of at least five years five months. In fact, the contrary is true.

In the calculation set forth in the 2006 RPO, the portion of the five-year five-month MTPC attributable to appellants grand theft adjudication was calculated as a subordinate term under the Penal Code section 1170.1 formula, i.e., eight months, representing one-third of the midterm. If the grand theft adjudication forms the basis of the principal term in the calculation of the maximum term of imprisonment, that calculation will include, instead of an eight-month subordinate term for that offense, a two-month subordinate term for the June 2004 battery, thus reducing appellants maximum term of imprisonment by six months. (Pen. Code, 243 [maximum term for misdemeanor battery is six months in county jail]; In re Eric J., supra, 25 Cal.3d at pp. 536-538 [subordinate term for misdemeanor calculated at one-third of maximum term for such offense].) Thus, on this record, appellants maximum term imprisonment under section 726 is four years eleven months, and because the MTPC cannot exceed the maximum term of imprisonment, the MTPC of five years five months declared by the court was in error.

Accordingly, we will remand this matter with directions to determine the maximum term of imprisonment in accordance with our discussion, and to declare a new MTPC. As indicated above, the MTPC may be less, but cannot be more, than the maximum term of imprisonment, and the court must set the MTPC, in the exercise of its discretion, based on consideration based upon the facts and circumstances of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court. ( 731(b)).

Courts Exercise of Discretion under section 731(b)

Appellant contends the court was not aware of, and failed to exercise, its discretion under section 731(b) in setting the MTPC, and therefore remand is required to allow the court to exercise that discretion. Because, we order remand with directions that the court declare a new MTPC, we need not address this contention.

Section 702

Section 702 provides, in relevant part: If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony. Such an offense is commonly called a wobbler. (In re Manzy W. (1997) 14 Cal.4th 1199, 1201 (Manzy W.).) The purpose of section 702 is two-fold: (1) to provid[e] a record from which the maximum term of physical confinement for an offense can be determined, particularly in the event of future adjudications (In re Manzy, supra, 14 Cal.4th at p. 1205), and (2) to ensure[e] that the juvenile court is aware of, and actually exercises, its discretion under . . . section 702 (id. at p. 1207).

Appellant suffered his adjudication of grand theft in 2003. As indicated above, grand theft is a wobbler. (Pen. Code, 489, 18.) Appellant contends the court was required in the 2003 proceeding to declare pursuant to section 702 that the grand theft was either a misdemeanor or felony; the court failed to do so; the record does not demonstrate the court was aware of its section 702 discretion; and therefore [t]he matter must be remanded with instructions that the juvenile court express its section 702 discretion and reconsider [appellants] term accordingly.

There is no dispute that [section 702] requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemeanor in the case of an adult. (Manzy W., supra, 14 Cal.4th at p. 1204, italics added; accord, In re Kenneth H. (1983) 33 Cal.3rd 616. 619 [section 702 means what it says and mandates the juvenile court to declare the offense a felony or misdemeanor].) The AG does not dispute the merits of appellants contention and concedes that remand is appropriate. As we explain below, however, appellants section 702 claim is not cognizable on this appeal. Accordingly, we decline to accept the Peoples concession.

California Rules of Court, rule 5.790(a)(1) provides, in relevant part: At the disposition hearing: [] (1) If the court has not previously considered whether any offense is a misdemeanor or felony, the court must do so at this time and state its finding on the record. Thus, the section 702 declaration for an offense must be made no later than the disposition hearing in the proceeding in which that offense is adjudicated. Moreover, the disposition order is an appealable order (In re Melvin S. (1976) 59 Cal.App.3d 898, 900), and a minor appellant must file a notice of appeal within 60 days after the juvenile court issues an appealable order (Cal. Rules of Court, rule 5.585(a) & (f)). Therefore, in order to challenge a courts failure to comply with section 702 with respect to a particular, a minor must file a notice of appeal within 60 days after the disposition order in the proceeding in which that offense is adjudicated. And [i]f a party fails to appeal an appealable order within the prescribed time, this court is without jurisdiction to review that order on a subsequent appeal. (In re Marriage of Lloyd (1997) 55 Cal.App.4th 216, 219; accord, Mauro B. v. Superior Court (1991) 230 Cal.App.3d 949, 953).

Here, appellant admitted the grand theft allegation on January 14, 2003; on February 26, 2003, he admitted an allegation that he committed another offense; and on May 6, 2003, at the disposition hearing covering both offenses, the court adjudged appellant a ward of the court and placed him on probation. The record before us contains no indication that the court at any point declared the grand theft to be a felony or misdemeanor. However, appellant failed to file a notice of appeal within 60 days of the disposition order. Therefore, at this point, this court lacks jurisdiction to address appellants claim that the juvenile court failed to comply with section 702 with respect to his adjudication of grand theft.

DISPOSITION

The matter is remanded to the juvenile court for the court to (1) determine and declare, in accordance with views set forth in this opinion, the maximum term of imprisonment within the meaning of Welfare and Institutions Code section 726, and (2) determine and declare the maximum term of physical confinement within the meaning of Welfare and Institutions Code section 731, based on the facts and circumstances that brought appellant before the juvenile court. In all other respects the judgment is affirmed.

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^*Before Vartabedian, Acting P.J., Wiseman, J. and Kane, J.

^[1] Penal Code section 186.22(d) provides, for any offense committed for the benefit of, at the direction of, or in association with, a criminal street gang, the following criminal penalties: imprisonment in the county jail not to exceed one year, or . . . imprisonment in the state prison for one, two, or three years, provided that any person sentenced to imprisonment in the county jail shall be imprisoned for a period not to exceed one year, but not less than 180 days . . . .

^[2] The remainder of the MTPC, as set forth in the August RPO, consists of eight months for felony grand theft (Pen. Code, 487, subd. (a)) and, for the remaining offenses, all of which are misdemeanors, the following: fighting in a public place ( 415, subd. (a)), 30 days; assault by means of force likely to cause great bodily injury ( 245, subd. (a)), four months; battery ( 242), two months; resisting, delaying or obstructing a peace officer ( 148, subd. (a)), four months; violation of gang registration requirement ( 186.33, subd. (a)), two months; possession of live ammunition ( 12101, subd. (b)(1)), two months; battery ( 242), two months; and escape from a juvenile facility (Welf. & Inst. Code,  871, subd. (a)), four months.

^[3] We refer to this battery as appellants second 2004 battery, to distinguish it from the battery of which he was adjudicated on June 8, 2004.

^[4] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[5] See footnote 3, ante.