In re Frederick C.

Filed 7/31/06 In re Frederick C. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Federico Castro, Judge. (Retired judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified.

Frederick C. appeals a dispositional order, contending the trial court failed to exercise its discretion under Welfare and Institutions^[1] Code section 731, subdivision (b) in setting the maximum term of his physical confinement and that the California Youth Authority commitment form fails to reflect that he is a special needs minor. We order the commitment form corrected. In all other respects, we affirm the judgment.

Factual and Procedural Background

In June 2004, Frederick admitted the truth of a second degree burglary allegation (Pen. Code, § 459). He had numerous prior violations and had performed poorly on probation in the past. About six weeks prior to the dispositional hearing, Frederick admitted he had violated probation and that he had been "kicked out of Camp Barrett." At the dispositional hearing in September 2005, the court ordered Frederick to the California Youth Authority and set the term at the statutory maximum.

I

Exercise of Discretion

Section 731, subdivision (b) provides that a minor may not be held in physical confinement longer than the maximum term that could be imposed on an adult convicted of the same offense(s) or longer than "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 . . . ." The juvenile court must exercise its discretion in determining the maximum term, although "[t]he Youth Authority Board retains the power, subject to the applicable rules and regulations, to determine the actual length of confinement at or below the ceiling set by the juvenile court and to determine the conditions of the minor's confinement." (In re Carlos E. (2005) 127 Cal.App.4th 1529, 1542.) "[T]he statute does not require a recitation of the facts and circumstances upon which the trial court depends, or a discussion of their relative weight, [however,] the record must reflect the court has considered those facts and circumstances in setting its maximum term of physical confinement even though that term may turn out to be the same as would have been imposed on an adult for the same offenses." (In re Jacob J. (2005) 130 Cal.App.4th 429, 438, italics omitted.)

Here, at the dispositional hearing, defense counsel and Frederick's mother argued he should not be committed to the California Youth Authority while the prosecutor argued Frederick "runs from where he's not locked up" and needed a long-term, comprehensive program. The court, in response to the mother's argument, noted that Frederick had failed at other placements and had seven violations. The court also noted that Frederick had been granted probation in the past and had "failed to reform." As to setting the maximum term, the court stated:

"Court further finds that pursuant to [section] 731[, subdivision] (b) discretion to set less than overall maximum of five years and eight months -- I'm going to decline to exercise discretion. And it's the court's intention to give [California Youth Authority] the maximum period of time to rehabilitate the minor. I'll let them decide when to let him out. . . ."

This record shows the court was clearly aware of its discretion to set a lesser maximum term under section 731, subdivision (b) but declined to exercise that discretion to set a lower maximum. It is also evident from the record, as shown by the responses to the arguments of Frederick's mother, that the court's decision not to set a lower maximum term was based on the facts and circumstances of the case, including Frederick's failure at less restrictive placements and his numerous prior violations.

No reversal is merited on the ground the trial court failed to exercise discretion to set a maximum term based on the facts and circumstances of the case.

II

Correction of Commitment Form

Frederick contends the commitment form to the California Youth Authority erroneously fails to reflect that he is an exceptional needs minor. The Attorney General concedes error occurred and we agree.

At the dispositional hearing, the court found Frederick was "an individual with exceptional needs" and this finding was reflected in the minute order, but not in the commitment to the California Youth Authority form.

The commitment form should be corrected to reflect that Frederick is a person with exceptional needs.

DISPOSITION

The court and the California Youth Authority are directed to correct the commitment form to reflect Frederick is a person with exceptional needs. In all other respects, the judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

BENKE, J.

O'ROURKE, J.

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