In re Mohammed N.

Filed 2/20/07  In re Mohammed N. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

            This is the second appeal in this case.  In the first appeal,^[1] we upheld the juvenile court's decision to commit appellant to the California Youth Authority (CYA), but remanded the matter for the court to exercise its discretion in setting appellant's maximum term of confinement pursuant to Welfare and Institutions Code section  731, subdivision (b) (hereafter section  731(b).)  In this appeal, appellant contends the court's postremand order setting the maximum term of confinement at six years two months was an abuse of discretion, and his counsel provided ineffective assistance by failing to raise issues regarding the court's determination of the maximum term of confinement.  In a related petition for habeas corpus, appellant again asserts that his defense counsel was ineffective for failing to raise these identical issues.

Background

            In August 2004, 17-year-old appellant used a pellet gun to rob a gas station attendant of approximately $300.  The subsequent juvenile wardship petition (Welf. & Inst. Code, §  602) charged him with robbery with a dangerous weapon (Pen. Code, §§  211, 12022, subd. (b)(1)), and alleged three prior sustained misdemeanors for burglary (Pen. Code, §  459), assault (Pen. Code, §  240) and escape from a juvenile facility (Welf. & Inst. Code,^[2] §  871).  Appellant admitted committing the robbery with the pellet gun, and the court committed him to the CYA.  As noted previously, in Mohammed I we remanded the matter for the court to exercise discretion in setting the maximum term of appellant's confinement.

            At the February 28, 2006 hearing on remand, the prosecutor stated that following appellant's admission and before his disposition hearing, appellant was informed that the maximum time he could spend in a locked facility was seven years two months.  The prosecutor argued that given appellant's previous failures on probation, his continuing and escalating conduct, and the aggravated circumstances surrounding the robbery, the maximum possible term of confinement, seven years two months, should be imposed.  Appellant's counsel responded that there were no aggravating circumstances â€