In re Joaquin D.

Filed 4/6/07 In re Joaquin D. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Fresno County. Martin Suits, Commissioner.

Tim Warriner, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

On March 21, 2006, appellant Joaquin D., was charged in a petition filed pursuant to Welfare and Institutions Code section 602 alleging that he feloniously possessed a concealed dirk or dagger (Pen. Code,  12020, subdivision (a)(4)).^[1] On March 29, 2006, appellant admitted the allegation. On March 29, 2006, the juvenile court ordered appellant to the California Youth Authority (CYA).^[2] The juvenile court ordered appellant committed to a maximum term of confinement of four years two months.^[3] The court granted appellant custody credit of 415 days and ordered him to pay a restitution fine.

On appeal, Joaquin contends the juvenile court failed to establish an adequate factual basis for the appellants admission that he possessed a dirk or dagger. Appellant contends the juvenile court failed to make a finding that his possession of a dirk or dagger was a felony or a misdemeanor and that it failed to set a maximum term of confinement as required by section 731. Although we find no merit to the first contention, we agree with appellant that his case must be remanded for a proper finding concerning whether the current offense is a misdemeanor or a felony and for the juvenile court to pick a term of confinement based upon the facts and circumstances of appellants case pursuant to section 731.

FACTS

On March 19, 2006, appellant was detained by police officers who were investigating an assault. Appellant was asked if he was on probation and whether he possessed any weapons. Appellant admitted he was on probation and that he possessed a knife. Upon searching appellant, officers found in his pants pocket a kitchen knife with a fixed blade four and a half inches long. When asked why he was wearing red clothing, appellant replied he was member of the Bulldog gang. Appellant explained he carried a knife because the streets were dangerous and he carried it to protect himself.

When the juvenile court took appellants admission of the allegation, the court asked the parties if they stipulated to a factual basis for the admission. Defense counsel replied that a bench memo described the knife as a six-inch, fixed-blade knife. Defense counsel had not seen a picture of the knife. The prosecutor explained that no picture was taken of the knife.

The juvenile court asked whether a kitchen knife qualified as a dirk or dagger under the statute. The prosecutor explained that the qualifying element was for the dirk or dagger to be ready for use. Defense counsel agreed with the prosecutor that appellants possession of a knife qualified as a dirk or dagger under the statute. The court then accepted the admission. When the juvenile court took appellants admission, it did not expressly find the offense to be a felony. At the disposition hearing, the court did not expressly find that appellants violation of Penal Code section 12022, subdivision (a)(4) was a felony.

FACTUAL BASIS FOR ADMISSION

Appellant contends the juvenile court failed to establish an adequate factual basis for the minors admission that he possessed a concealed dirk or dagger.

Penal Code section 1192.5 requires that prior to accepting a plea, the court establish a prima facie factual basis for the allegations. Penal Code section 1192.5 applies to juvenile cases. (In re Michael B. (1980) 28 Cal.3d 548, 554-560.) In establishing a factual basis for the plea, it is not necessary for the trial court to interrogate the defendant about possible defenses to the charged crime. The court does not need to be convinced of the defendants guilt. (People v. Holmes (2004) 32 Cal.4th 432, 441 (Holmes).) The trial court can establish a factual basis by directly questioning the defendant, or by garnering statements and admissions from the defendants counsel. The factual basis requirement is met when both parties stipulate on the record to a document, such as the police report. (Id. at pp. 440-441.)

Generally, a reference to a complaint containing a factual basis for each essential element of a crime is sufficient to establish the factual basis for the plea under Penal Code section 1192.5. (Holmes, 32 Cal.4th at p. 440.) While the trial court is not required to develop the factual basis on the record by asking the defendant to enumerate his or her proscribed actions, it must otherwise ensure that some reference on the record to other factual sources is present. (Id. at p. 441.)

The appellants counsel referred to a bench memorandum describing the knife as a six-inch blade. Although the bench memorandum was not made a part of the record, it appears appellants counsel had reviewed the document and lodged no objection to the documents authenticity. Defense counsel stated he did not see a picture of the knife and the prosecutor explained no such picture was ever taken.^[4] Defense counsels reliance on the accuracy of the description of the knife in the bench brief is tantamount to an admission by defense counsel. Based on the petition, which alleged that appellant carried a concealed dirk or dagger on his person, and counsels reliance on the brief with a description of the weapon, the record establishes sufficient factual basis on the record to establish a factual basis for appellants plea.

WOBBLER OFFENSES

Appellant contends that the juvenile court failed to state on the record whether counts one and two were felony offenses or misdemeanors. Section 702 requires such a finding.^[5] In all offenses in which a violation can be treated as either a felony or a misdemeanor, the juvenile court must actually exercise its discretion under section 702. (In re Manzy W. (1997) 14 Cal.4th 1199, 1205-1207 (Manzy W.).)

Section 702 provides, in 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.

The statute is obligatory; it requires the court to make an affirmative declaration, on the record, whether the offense is a felony or a misdemeanor. (In re Manzy W., supra, 14 Cal.4th at p. 1204 (Manzy W.); In re Jorge Q. (1997) 54 Cal.App.4th 223, 238.)

The requirement serves two purposes. It provides a record from which the maximum term of confinement can be determined, particularly in the case of future adjudications. (Manzy W., supra, 14 Cal.4th at p. 1205.) Generally speaking, the maximum term of confinement for a juvenile offender is equal to the longest term of imprisonment that could be imposed on an adult convicted of the same offense. (Id. at pp. 1205-1206;  726, subd. (c) & 731, subd. (b).) It establishes the upper limit on an indeterminate term; actual time served is determined by the youth authority. (In re Ismael A. (1989) 207 Cal.App.3d 911, 919.)

The requirement of a declaration by the juvenile court whether an offense is a felony or misdemeanor [is] thus directed, in large part, at facilitating the determination of the limits on any present or future commitment to physical confinement for a so-called wobbler offense. (Manzy W., supra, 14 Cal.4th at p. 1206.)

The second purpose of the section 702 requirement is to ensure that the juvenile court is aware of, and actually exercises, its discretion. (Manzy W., supra, 14 Cal.4th at p. 1207.) Therefore, in the absence of an explicit declaration by the court, the matter must be remanded for such a declaration to be made unless the record as a whole establishes that the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement limit. (Id. at p. 1209.) The fact the petition or minute order identified the offense as a felony, or that the court set a felony-level period of confinement, is not enough to show that the court was aware it could have done otherwise. (Id. at p. 1208.)

Here, the juvenile court failed to make a finding that the current offense was a felony when it accepted appellants admission. At the disposition hearing, the court also failed to make an express finding that the current offense was a felony. We will remand this case for the juvenile court to make the required finding.

SECTION 731

When the juvenile court orders a minor removed from the home and elects to aggregate the disposition from multiple counts or multiple petitions, the court must declare the maximum period the minor may be held in physical confinement. ( 726.) [T]he maximum term must be specified in accordance with the formula set forth in subdivision (a) of 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). (In re Eric J. (1979) 25 Cal.3d 522, 536.)

Section 731, subdivision (b) reaffirms that a minor may not be committed to the department 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. Effective January 1, 2004, the Legislature modified section 731, subdivision (b) as follows:

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 court has explained the amendment to section 731, subdivision (b) unmistakably requires the trial court to set a maximum term of physical confinement in CYA based upon the facts and circumstances of the matter. (In re Carlos E. (2005) 127 Cal.App.4th 1529, 1543 (Carlos E.).) Respondent argues that the probation report mentioned the term set by law and that we must therefore presume the juvenile court understood that appellant could have received a shorter term for attempted burglary, the principal term. Even if we accept this presumption, there is still no information in the probation report or any indication from the juvenile court that it considered the facts and circumstances in appellants case before setting his maximum term of confinement to CYA.

We previously held the juvenile court must set the term in all cases where it is committing a minor to CYA and it must exercise its discretion in making the determination of what that term will be.^[6] (Carlos E., supra, 127 Cal.App.4th at p. 1543.) The Third and First Appellate Districts agree. (In re Jacob J. (2005) 130 Cal.App.4th 429, 437 (Jacob J.); In re Sean W. (2005) 127 Cal.App.4th 1177, 1185 (Sean W.).)

Here, the court only added up appellants maximum term of confinement, aggregating terms from prior petitions, and announced the appellants maximum term of confinement of four years two months. We find no reference in the probation report nor in the juvenile courts pronouncements at the disposition hearing that there was any consideration of the particular facts and circumstances of appellants case in setting the maximum period of confinement. The court failed, therefore, to consider the factors relevant to the length of appellants commitment to CYA. After amendments to section 731, appellants maximum term of confinement can be less than four years two months.

When the juvenile court fails to set a maximum period of confinement at the CYA based on the minors particular facts and circumstances, the case must be remanded to the juvenile court to make an informed and express determination. (Carlos E., supra, 127 Cal.App.4th at p. 1543; Jacob J., supra, 130 Cal.App.4th at pp. 438-439; Sean W., supra, 127 Cal.App.4th at pp. 1188-1189.)

DISPOSITION

The dispositional order of the juvenile court setting appellants maximum term of confinement is reversed. The case is remanded for the juvenile court to make a finding pursuant to section 702 and Manzy W. concerning whether the instant offense is a felony or a misdemeanor. Before committing appellant to CYA, the juvenile court shall consider the facts and circumstances of the matter before it in selecting the appropriate term of physical confinement pursuant to section 731, Carlos E., Jacob J., and Sean W. In all other respects, the orders of the juvenile court are affirmed.

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^*Before Vartabedian, Acting P.J., Levy, J., and Cornell, J.

^[1] Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.

^[2] CYA has been redesignated by legislature as the Department of Juvenile Justice. Because the juvenile court and the parties on appeal use the CYA designation, we do so as well for consistency.

^[3] The maximum term of confinement was based on the aggregation of prior sustained petitions in 2004 and 2005. In 2004, there was a sustained petition for attempted burglary, a felony. In 2005, there were sustained petitions for resisting arrest and for battery. The maximum terms were set, respectively, at three years, four months, and two months. The maximum term for appellants felony possession of a dirk or dagger was one-third the upper term of three years, or eight months.

^[4] The statutory definition of a dirk or dagger includes not only inherently dangerous stabbing weapons, but also instruments intended for harmless uses but capable of inflicting serious injury or death. The statute defines a dirk or dagger as a knife or other instrument with or without a handguard that is capable of ready use as a stabbing weapon that may inflict great bodily injury or death. (In re George W. (1998) 68 Cal.App.4th 1208, 1212-1213.) Appellant concealed a knife of between four and a half inches and six inches long with a fixed blade. In doing so, appellant violated Penal Code section 12020, subdivision (a)(4).

^[5] Penal Code section 12020, subdivision (a)(4) can be punished as either a felony or a misdemeanor.

^[6] The juvenile court in the instant action carefully considered relevant factors relevant to placing appellant at CYA rather than a less restrictive alternative.