In re GENEVA C

Filed 7/21/06

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Charles Clay III, Judge. Affirmed.

Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Appellant Geneva C. appeals from an order of the juvenile court finding her to be a ward of the court and committing her to camp for the maximum term of confinement. Appellant contends that Welfare and Institutions section 731, subdivision (b),[1] vests the juvenile court with discretion to commit a minor to camp for less than the maximum term to which an adult offender could be sentenced. We conclude that both the plain language and legislative history of section 731, subdivision (b), demonstrate that the statute provides discretion only when the minor is committed to the California Youth Authority (CYA)[2] and to no other institution within the juvenile court's jurisdiction.

Factual and Procedural Background

Appellant was the subject of two petitions alleging that she was a minor who fell within the provisions of section 602. The first petition alleged that she possessed marijuana for sale (Health & Saf. Code, § 11359); the second, that she committed second degree robbery and assault by means of force likely to produce great bodily injury. (Pen. Code, § 211; 245, subd. (a)(1).) The juvenile court sustained both petitions, declared her a ward of the court, and placed her in the camp community placement program. Without objection, the court fixed the maximum period of confinement at six years, eight months, computed as follows: the principal term of five years for robbery plus subordinate consecutive terms of one-third the three-year middle term for assault by means of force likely to produce great bodily injury and one-third the middle term of two years for possession of marijuana for sale.

The facts underlying appellant's substantive offenses are irrelevant to the appellate issues. Hence, we simply note that the evidence relating to the possession of marijuana for sale allegation showed that on April 14, 2005, police seized quantities of marijuana, cocaine, and a digital scale from an apartment occupied by appellant and several others. The evidence of the robbery and assault allegations showed that appellant and a female companion attacked minor Lashanda L. as she was walking on the street, and took her necklace, cell-phone, purse, and money.

Discussion

A. Forfeiture

Appellant did not object when the juvenile court set her maximum period of confinement in camp. The Attorney General argues that appellant's failure to object forfeits her right to challenge the juvenile court's determination. The Attorney General relies on People v. Carmony (2004) 33 Cal.4th 367, 376, which held that appellate claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices cannot be raised for the first time on appeal. The Attorney General's reliance on that theory of forfeiture is inapposite to this proceeding because the principal issues raised by Carmony and appellant's case are distinguishable. Carmony dealt with the application of the forfeiture rule to claims relating to the trial court's failure to exercise or explain its discretionary sentencing choices. Appellant's case poses a purely legal question, whether section 731, subdivision (b) grants the juvenile court discretion when it places a minor in camp. (In re M. L. B. (1980) 110 Cal.App.3d 501, 503 [The interpretation and construction of a statute and its applicability to a case is solely a question of law].) We conclude that appellant's failure to raise this issue of law in the juvenile court does not constitute a forfeiture of the issue on appeal. (See In re Justin S. (2001) 93 Cal.App.4th 811, 814 [pure question of law unrelated to sentencing record maybe raised for the first time on appeal].)[3]

B. Statutory Interpretation of Section 731, subdivision (b)

Appellant claims that the juvenile court â€