In re Jeremy H.

Filed 2/7/08 In re Jeremy H. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 San Bernardino County. Douglas N. Gericke, Judge. Affirmed.

Valerie G. Wass, 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, Barry Carlton, Supervising Deputy Attorney General, and Bradley A. Weinreb, Deputy Attorney General, for Plaintiff and Respondent.

I

INTRODUCTION

Jeremy H. 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.^[1]

Minor contends that the juvenile court erroneously determined that his theoretical maximum term of physical confinement was eight years four months.^[2] Relying on Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), minor 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 failed to exercise its discretion to modify minors commitment order. For the reasons set forth below, we shall affirm the judgment.

II

FACTUAL AND PROCEDURAL BACKGROUND

Minor was born in May 1988. On May 2, 2001, a petition filed in the San Bernardino County Juvenile Court under Welfare and Institutions Code section 602 alleged that on March 4, 2001, minor committed the following misdemeanor offenses: (1) assault by means of force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1)) (count 1); and (2) vandalism (Pen. Code, 594, subd. (b)(2)(A)) (count 2).

On June 21, 2001, following advisement and waiver of his constitutional rights, minor admitted count 1 of the petition. Upon the Peoples motion, count 2 was dismissed with a Harvey^[3]waiver. At the disposition hearing on July 6, 2001, minor was declared a ward of the court and placed on probation in the custody of minors father, to be maintained in the home of his grandmother, subject to specified terms and conditions of probation and the Success program.

On March 12, 2001, a petition filed in Los Angeles County Juvenile Court under Welfare and Institutions Code section 602 alleged that minor committed a lewd act upon a child (Pen. Code, 288, subd. (a)) on January 6, 2001. On August 23, 2001, the court sustained the allegations of the petition and transferred the matter to San Bernardino County for disposition.

On August 30, 2001, the San Bernardino County Juvenile Court accepted the transfer; it found that minor was a legal resident of the County of San Bernardino. The court ordered that minor remain detained in juvenile hall pending disposition.

On October 12, 2001, pursuant to Welfare and Institutions Code section 704, the juvenile court found that minor required observation and diagnosis at CYA. The court ordered minor placed at the diagnostic center for a period not to exceed 90 days and the director of CYA to report to the court its diagnosis and recommendations concerning minor within 90 days.

During a November 21, 2001, hearing, the juvenile court noted that it had received a report from CYAs diagnostic facility, as well as a memorandum from probation recommending suitable placement. The court ordered a psychiatric evaluation for minor, and further ordered probation to interview minors uncle for possible placement. The court also ordered the juvenile hall staff to submit a written report on minors adjustment. A contested dispositional hearing was set for December 7, 2001.

At the December 7, 2001, hearing, minors counsel and the prosecutor concurred with the recommendation of the probation officer and the doctors at CYA for suitable placement. The court ordered that minor remain a ward of the court in the custody of the probation officer, and be placed in a suitable foster care facility as determined by the probation officer, subject to the previously specified probation terms and additional placement terms. Minor was accepted by Helicon II and transported on February 8, 2002.

On December 23, 2002, a petition under Welfare and Institutions Code section 777, subdivision (a)(2), was filed; it alleged that on or about December 19, 2002, minor violated term No. 34 of his probation conditions by failing to obey the rules and regulations of placement and not destroy property. Minor denied the allegations of the petition. The court ordered temporary placement and care vested with the probation officer pending disposition or further order of the court.

On February 19, 2003, a subsequent petition was filed under Welfare and Institutions Code section 602. The petition alleged that on February 17, 2003, minor committed misdemeanor battery. (Pen. Code, 242.) Minor denied the allegations of the petition. The subsequent petition was dismissed without prejudice on March 6, 2003, upon the motion of the People.

On March 12, 2003, following advisement and waiver of his constitutional rights, minor admitted the allegations of the Welfare and Institutions Code section 777, subdivision (a)(2), petition filed on December 23, 2002. During the dispositional hearing on March 26, 2003, both the prosecution and minors counsel submitted to the probation officers recommendation for a commitment to CYA. The court continued minor as a ward of the court and committed him to CYA with a maximum confinement period of eight years four months, with 270 days credit for time served. The court declared the Penal Code section 288, subdivision (a), offense to be a felony, and the Penal Code section 245, subdivision (a)(1), offense to be a misdemeanor. Minor was found to be an individual with exceptional needs under Welfare and Institutions Code section 1742. The court found that none of the previous offenses were Welfare and Institutions Code section 707, subdivision (b), offenses.

On March 5, 2007, minor filed a motion to resentence (Welf. & Inst. Code, 731, subd. (b), 726, subd. (c)), requesting the court modify its previous order committing minor to CYA for the aggravated term and to impose no more than the middle term. The People filed a written opposition. At the hearing on March 26, 2007, the juvenile court denied minors motion.

Minor appeals.

III

DISCUSSION

A. Cunningham Does Not Apply to Juvenile Delinquency Proceedings

Minor contends the trial court erred in denying his motion to modify the commitment order because the court should have determined his maximum period of confinement as the midterm of six years, not the upper term of eight years. 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.] . . . [] Thus, [minor] 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. [Minor] maintains that, pursuant to [Welfare and Institutions Code] section 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 [minors] 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.)

Initially, we note that neither the ruling in Cunningham nor that in any of its forebears^[4]apply expressly or implicitly to juvenile delinquency proceedings. Indeed, all of those cases concerned adult criminal convictions.

Likewise, as 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 seq., collecting and analyzing the California Supreme Court cases which so held.) [Minor] 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.) Indeed, the cornerstone foundation for the decision in Cunningham was that imposition of an upper term based on aggravating facts found by a judge violated the defendants Sixth Amendment right, via the Fourteenth Amendment, to a trial by jury. (Cunningham, supra, 127 S.Ct. at p. 860.) Here, minor had no right to a jury trial.

Additionally, unlike Californias previous determinate sentencing law in which the presumptive maximum term of imprisonment for convicted adult criminals was the middle term (Cunningham, supra, 127 S.Ct. at p. 868), the maximum term of confinement for juveniles is the upper term. Citing In re Jacob J. (2005) 130 Cal.App.4th 429, 435, Christian G. explains that maximum term of imprisonment, as used in Welfare and Institutions Code sections 726 and 731, means the longest of the three time periods set forth in Penal Code 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. (Christian G., supra, 153 Cal.App.4th at p. 714.)

Moreover, in determining a minors theoretical maximum term of confinement, the juvenile court is not limited to evaluating the mitigating and aggravating factors applicable in an adult criminal context. Rather, juvenile delinquency courts have been given much broader authority and discretion in the factors they may consider in determining an appropriate period of potential confinement: The second sentence of [Welfare and Institutions Code] section 731, subdivision (b), was added in 2003 by Senate Bill No. 459 (2003-2004 Reg. Sess.). (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 an 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 [Welfare and Institutions Code] 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] [Welfare and Institutions Code] 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.) (Christian G., supra, 153 Cal.App.4th at p. 714.)

Finally, unlike the adult criminal determinate sentencing law, the sentencing scheme in juvenile proceedings is indeterminate. Thus, Cunninghams other foundational basis, that a determinate sentencing scheme violates the Sixth Amendment when factors justifying deviation from the maximum term are determined by a judge, is simply not applicable to juvenile delinquency proceedings. 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, [Welfare and Institutions Code] 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. [Citation.] 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 p. 715.)

The foregoing answers minors 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. (Welf. & Inst. Code,  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. Welfare and Institutions Code section 726 expressly defines the maximum term of commitment as the upper term without requiring any factfinding or the consideration of a presumptive midterm.

Accordingly, the juvenile court did not err in determining minors theoretical maximum term of physical confinement to be eight years four months.

B. The Juvenile Court Did Not Err in Failing to Modify the Maximum Term

Next, minor argues that, because statutory authority confers upon a juvenile court the ability to reduce or modify an order of commitment, the juvenile court here erred when it stated that it had no discretion to modify the order at the hearing on minors motion to resentence. (See Welf. & Inst. Code, 731, subd (b), 775, 779.)^[5]

In this case, at the hearing on minors motion to resentence, the juvenile court heard argument from both minors counsel and the prosecution. Thereafter, the court noted, its a very interesting issue that minors counsel has presented, but it certainly is plowing some new ground. The court then went on to state, Its an interesting idea, but I dont think we can stretch Cunningham to apply to a juvenile court situation which has no aggravating or mitigating factors that the Court considers in the same sense that they would when determining thewhen using the triad to impose in a criminal case. Based on this discussion that Cunningham did not apply to juvenile cases, the court concluded that the court did not have any authority, which would warrant or require the Court to change the previous ruling in the matter.

Therefore, contrary to minors characterization of the juvenile courts ruling, the juvenile court knew that it had the authority to modify minors maximum confinement period. However, the court declined to exercise this authority because the court correctly concluded that Cunningham did not apply to juvenile cases; hence, there was no change in the law to warrant any modification of minors order of commitment. There was no error.

IV

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

Acting P.J.

We concur:

KING

J.

MILLER

J.

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^[1] Formally known as the California Youth Authority. For consistency with the record, we will refer to the Division of Juvenile Justice as CYA. (Gov. Code,  12838, subd. (a), 12838.3; Welf. & Inst. Code, 1710, subd. (a).)

^[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, 712, fn. 1 (Christian G.).)

^[3]People v. Harvey (1979) 25 Cal.3d 754.

^[4]Apprendi v. New Jersey (2000) 530 U.S. 466; Ring v. Arizona (2002) 536 U.S. 584; Blakely v. Washington (2004) 542 U.S. 296; United States v. Booker (2005) 543 U.S. 220.

^[5] Welfare and Institutions Code section 731, subdivision (b), provides: 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.

Welfare and Institutions Code section 775 provides: Any order made by the court in the case of any person subject to its jurisdiction may at any time be changed, modified, or set aside, as the judge deems meet and proper, subject to such procedural requirements as are imposed by this article.

Welfare and Institutions Code section 779 provides: The court committing a ward to the Youth Authority may thereafter change, modify, or set aside the order of commitment.