In re Louis R.

Filed 3/6/07 In re Louis R. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Louis R. appeals the juvenile court's dispositional order committing him to the Division of Juvenile Justice, formerly known as the California Youth Authority, for a maximum term of three years six months based on offenses found true in multiple sustained juvenile wardship petitions. (Welf. & Inst. Code, 602, 777.)[1] The offenses were carrying a dirk or dagger (Pen. Code, 12020, subd. (a)), unlawful driving or taking a vehicle (Veh. Code,  10851, subd. (a)), and escape from a juvenile facility by removing an electronic monitor ( 871, subd. (d)). Louis R. contends that, in sentencing him, the juvenile court failed to exercise its discretion under section 731, subdivision (b), improperly imposed a sentence for the escape offense, and failed to exercise its discretion not to aggregate the terms of physical confinement under section 726, subdivision (c). We affirm.

FACTS AND PROCEDURAL HISTORY

In May 2004, a section 602 juvenile petition was filed against Louis alleging battery (Pen. Code,  242), unlawful driving or taking a vehicle (Veh. Code,  10851, subd. (a)), and driving without a license (Veh. Code,  12500, subd. (a)). The petition was sustained after Louis admitted the unlawful driving count and the other charges were dismissed. On August 16, 2004, the juvenile court declared Louis a ward of the court, placed him on probation subject to serving 120 days in the Juvenile Justice Facility and other conditions, and set the maximum term of physical confinement at one year.

On August 19, 2004, a subsequent section 602 petition was filed against Louis alleging escape from custody by removing an electronic monitor ( 871, subd. (d)), and cutting a utility line (Pen. Code,  591). On August 20, 2004, the petition was sustained after Louis admitted the escape offense and the utility line offense was dismissed. The court continued Louis as a ward of the court and returned him to the Juvenile Justice Facility to complete the sentence imposed on August 16, 2004. Louis was informed that the offense increased his maximum term of physical confinement to one year two months.

In November, Louis admitted probation violations for use of a controlled substance and failure to attend school and the court ordered him to serve 60 days in the Juvenile Justice Facility. In January 2005, Louis again admitted probation violations for associating with gang members, wearing gang attire and shaving his head below a number 2 clip, failing to test for drug use, and failing to report to the probation officer.

In November 2005, a subsequent section 602 petition was filed alleging the offense of resisting, obstructing or delaying a peace officer. (Pen. Code,  148, subd. (a)(1).) Also, in November 2005, Louis admitted several new probation violations and, on December 19, 2005, he was ordered to serve 90 days in the Juvenile Justice Facility with credit for time served.

On January 9, 2006, an amended subsequent petition was filed alleging a new offense of carrying a dirk or dagger (Pen. Code,  12020, subd. (a)). On the same day, the petition was sustained after Louis admitted the dirk or dagger charge and the resisting a peace officer charge was dismissed. The juvenile court set the maximum term of physical confinement at three years six months.

On February 24, 2006, the juvenile court conducted a disposition hearing on the amended subsequent petition. The court committed Louis to the Division of Juvenile Justice for a maximum term of physical confinement of three years six months. The commitment consisted of the upper term of three years for the felony of carrying a dirk or dagger which was deemed the principal term, plus four months for the unlawful driving or taking a vehicle offense as a subordinate term, and two months for the escape offense as a subordinate term. The commitments were ordered to be served consecutively. Credit was given for time served.

Louis R. filed a notice of appeal of the February 24, 2006, order.

DISCUSSION

Court Exercised Section 731, Subdivision (b) Discretion

Louis R. contends the juvenile court was unaware of its sentencing discretion under section 731, subdivision (b).[2] We disagree. The record shows that the court understood its discretion under that statute, and considered the facts and circumstances of the case in setting the maximum term of confinement.

Prior to 2004, section 731, subdivision (b) provided that a minor could not be confined for a period exceeding the maximum period of imprisonment which could be imposed upon an adult convicted of the same offenses. Effective January 1, 2004, the Legislature added language stating that a minor also could not be confined for a period exceeding "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 . . . ."

This change gave juvenile courts discretion to impose a lesser term of confinement than the maximum term which could be imposed upon an adult when warranted by the facts and circumstances of the particular case. (In re Jacob J. (2005) 130 Cal.App.4th 429, 434-438; In re Carlos E. (2005) 127 Cal.App.4th 1529, 1543; In re Sean W. (2005) 127 Cal.App.4th 1177, 1183.) A recitation of the facts considered by the court is not necessary, but when a juvenile court sets the maximum term of confinement with the Division of Juvenile Justice at the maximum term of adult imprisonment, the record must show the court actually considered the particular facts and circumstances of the case at issue before making that determination. (In re Jacob J., supra, at p. 438; In re Carlos E., supra, at p. 1533.)

Here, the court reviewed the facts and circumstances underlying the original and subsequent petitions against Louis R., as well as his criminal history and performance on probation. The court explained that, despite less restrictive placements, Louis continued to engage in criminal activity, violate probation, and reject all efforts to rehabilitate him. More importantly, the record shows that the court considered the facts of the case in determining to commit Louis to the Division of Juvenile Justice and also in determining the maximum length of the commitment as required by the 2004 amendment to section 731, subdivision (b). Although without expressly citing the statute, counsel for Louis and the People both drew the court's attention to the court's discretion, and the court's own comments indicated that it exercised its discretionary authority.

Defense counsel argued against any commitment to the Division of Juvenile Justice, but stated that if a commitment were ordered, "we're asking the Court to consider the low term sentence of 16 months." Also, the prosecutor stated: "One more thing. [] The Court has to look at the offense to decide whether it should impose high term, low term or midterm." Thereafter, in announcing its decision, the court stated that the several aggravating circumstances "elevates [the dirk or dagger offense] to a degree of seriousness where the Court will not commit for the low term" but would commit for the "max term." In addition, after discussing the facts of the case, the court stated that it "also finds . . . as referenced in Welfare and Institutions Code section 731(d), that [Louis] shall be committed for the maximum time for the reasons" previously set forth on the record. (Italics added.) Because there is no such subdivision in section 731, the most reasonable explanation for the reference to "731(d)" is that the court was referring to subdivision (b) and either misspoke or was misunderstood by the reporter.

No Error in Commitment for Escape Offense

Louis R. contends that the court erred by imposing a two-month commitment for the escape offense. In a perfunctory assertion without citation of authority, Louis states that the absence of a disposition hearing prevents inclusion of time for that offense. We reject the contention.

First, when a point is raised without a legal argument with citation of authorities and through a perfunctory argument, we may "'. . . treat it as waived, and pass it without consideration. . . .'" (People v. Stanley (1995) 10 Cal.4th 764, 793.) Second, there is no merit to the contention. The petition for the escape offense was sustained with the court noting, without objection, that the maximum term of confinement was increased from one year to one year two months. Further notice of inclusion of these two months in the maximum period of confinement was given multiple times before the February 24, 2006, order. And, Louis was not prejudiced by the absence of a separate disposition hearing because he received no additional time in juvenile hall.

No Error in Aggregating Terms of Offenses

The juvenile court committed Louis to the Division of Juvenile Justice based on the aggregation of terms for the current and previously sustained petitions. ( 726, subd. (c).)[3] Louis contends that, in so doing, the court was unaware that it had discretion to commit him solely on the current dirk or dagger offense. We disagree.

After a section 602 petition is sustained, the court can consider the juvenile's entire record at the dispositional hearing and aggregate the maximum terms of confinement for offenses in previously-sustained petitions with the term provided for the current offense in computing the total maximum period of confinement. "Aggregation is not mandatory or automatic, but rests within the sound discretion of the juvenile court. (In re Adrian R. (2000) 85 Cal.App.4th 448, 454.) The court need not state its reasons in aggregating counts or petitions. (In re Ismael A. (1989) 207 Cal.App.3d 911, 913-914; see also In re Adrian R., supra, at pp. 454-455.)

We conclude the court exercised its discretion in light of all appropriate factors, including its discretion to aggregate or not aggregate. A trial court's failure to exercise such discretion must be demonstrated in the same manner as any other error. We indulge every presumption to uphold a judgment, and it is defendant's burden on appeal to affirmatively demonstrate error. (E.g., People v. Tang (1997) 54 Cal.App.4th 669, 677.) There is nothing in the record to indicate the court erroneously believed section 726 required aggregation and that the court lacked discretion not to aggregate the terms of the current and prior petitions. The record includes arguments regarding whether Louis should be sentenced to the maximum possible term of confinement which indicates the court was well aware of its discretion. Louis argues only that the court's erroneous inclusion of time for the escape offense in its aggregation shows that the court was unaware of its discretion. Not only have we rejected this position, but also there is no basis to conclude that any aspect of the escape offense is relevant to the court's awareness of its own discretion.

The judgment (commitment to Division of Juvenile Justice) is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Brian J. Back, Judge

Superior Court County of Ventura

______________________________

Kenneth I. Clayman, Public Defender, Michael C. McMahon, Chief Deputy, for Defendant and Appellant.

Bill Lockyer, Edmond G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Kathy S. Pomerantz, Deputy Attorney General, for Plaintiff and Respondent.

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

[2]Section 731, subdivision (b) provides: "A minor committed to the Department of the Youth Authority may not be held in physical confinement 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. 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 section does not limit the power of the Youth Authority Board to retain the minor on parole status for the period permitted by Section 1769."

[3]Section 726, subdivision (c) provides: "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. . . . [] If the court elects to aggregate the period of physical confinement on multiple counts or multiple petitions, including previously sustained petitions adjudging the minor a ward within Section 602, the 'maximum term of imprisonment' shall be the aggregate term of imprisonment specified in subdivision (a) of Section 1170.1 of the Penal Code . . . ."