In re Ralph B.
Filed 6/25/07 In re Ralph B. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
In re RALPH B., a Person Coming Under the Juvenile Court Law. | |
THE PEOPLE, Plaintiff and Respondent, v. RALPH B., Defendant and Appellant. | E041669 (Super.Ct.No. RIJ104545) O P I N I O N |
APPEAL from the Superior Court of Riverside County. Robert J. McIntyre, Judge. Affirmed with directions.
Patrick E. DuNah, 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, Steve Oetting, Supervising Deputy Attorney General, and Robin Derman, Deputy Attorney General, for Plaintiff and Respondent.
The juvenile court found true allegations that minor had committed burglary, received stolen property, and unlawfully took or drove a vehicle. Each of the crimes was specified as a felony. On appeal, minor contends the matter must be remanded to allow the juvenile court to expressly declare on the record that it is aware that each of the crimes can be sentenced as a misdemeanor or felony, and to thereafter exercise its discretion in determining whether to sentence as a misdemeanor or felony. (See Welf. & Inst. Code, 702.)[1]Additionally, minor maintains the court erred in its calculation of minors potential maximum period of confinement. We agree that the matter should be remanded for the court to comply with section 702. Otherwise, we affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
On August 17, 2006, the People filed a Welfare and Institutions Code section 602 petition charging minor with burglary (Pen. Code, 459), unlawful taking or driving of a vehicle (Veh. Code, 10851, subd. (a)), and receiving stolen property (Pen. Code, 496, subd. (a)). All were alleged as felonies. Following a contested jurisdictional hearing, the juvenile court found all three allegations true. At disposition, the court declared minor a ward of the court, ordered him committed to time served, placed him on probation, and released him to the physical custody of his mother. In determining minors maximum potential confinement of seven years, the court, despite both minors and the Peoples objections, concluded that Penal Code section 654 (bar against multiple punishment) did not apply in sentencing defendant for the offenses of receiving stolen property and vehicle theft.
II. DISCUSSION
A. The Juvenile Court Failed Adequately to State on the Record That It Was Exercising Its Discretion in Treating the Wobbler Offenses as Felonies
The trial court expressly found true that minor had committed violations as alleged in the petition and that all such violations were felonies. Violations of Vehicle Code section 10851, subdivision (a) and Penal Code section 496, subdivision (a) are wobblers, punishable either as a felony or a misdemeanor. Minor contends the juvenile court failed to expressly state whether it was exercising its discretion in declaring the offenses of unlawful taking or driving of a vehicle and receiving stolen property as felonies rather than misdemeanors, and, therefore, the matter must be remanded. The People contend that the courts express designation of the offenses as felonies suffices for such a determination. We agree with minor.
Section 702 mandates that, [i]f 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 language of section 702 is unambiguous. It requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemeanor in the case of an adult. (In re Manzy W. (1997) 14 Cal.4th 1199, 1204 (Manzy W.).) [S]ection 702 means what it says and mandates the juvenile court to declare the offense a felony or misdemeanor. (In re Kenneth H. (1983) 33 Cal.3d 616, 619; see also In re Ricky H. (1981) 30 Cal.3d 176, 191.) [T]he purpose of the statute is not solely administrative. As Kenneth H. and Ricky H. acknowledge, the requirement that the juvenile court declare whether a so-called wobbler offense was a misdemeanor or felony also serves the purpose of ensuring that the juvenile court is aware of, and actually exercises, its discretion under . . . section 702. (Manzy W., supra, at p. 1207.) Furthermore, neither the pleading, the minute order, nor the setting of a felony-level period of physical confinement may substitute for a declaration by the juvenile court as to whether an offense is a misdemeanor or felony. [Citation.] (Id. at p. 1208.)
Here, the People point out that the court referred to the offenses as felonies in finding the allegations against minor true. While such is the case, there nonetheless is nothing in this record to demonstrate that the juvenile court was aware of its discretion to impose sentence for the offenses as misdemeanors rather than felonies. In the absence of such a record, the matter must be remanded for the juvenile court to comply with section 702. (Manzy W., supra, 14 Cal.4th at p. 1211.)
B. The Juvenile Court Was Not Required to Specify Minors Maximum Term of Confinement Because It Did Not Impose Sentence, But Rather Placed Minor in the Physical Custody of His Mother
Minor contends the juvenile court erred in failing to stay the terms of confinement for the receiving stolen property and vehicle theft offenses when it determined minors maximum period of confinement. He contends the terms should have been stayed pursuant to Penal Code section 654 because those terms were based on the same criminal objective and intent as the burglary offense. The People maintain that no correction is necessary because the trial court placed physical custody of minor with his mother; therefore, it was not required to specify minors maximum term of confinement.
Section 726, subdivision (c) provides, in pertinent part, that [i]f 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.
Subdivision (a) of Penal Code section 654 provides: An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.
Penal Code section 654 applies not only to the same criminal act, but also to an indivisible course of conduct committed pursuant to the same criminal intent or objective. (People v. Latimer (1993) 5 Cal.4th 1203, 1207-1209, citing Neal v. State of California (1960) 55 Cal.2d 11; see also People v. Perez (1979) 23 Cal.3d 545, 551.) [I]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [] If, on the other hand, defendant harbored multiple criminal objectives, which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citation.] (People v. Harrison (1989) 48 Cal.3d 321, 335.) When Penal Code section 654 precludes multiple punishment, sentence normally must be stayed on the lesser offenses. (People v. Ortega (1998) 19 Cal.4th 686, 692, disapproved on other grounds in People v. Reed (2006) 38 Cal.4th 1224, 1228.)
Relying on In re Joseph G. (1995) 32 Cal.App.4th 1735, the People argue that section 726, subdivision (c) is inapplicable in the instant case because minor was placed on probation at home in lieu of confinement. In that case, the court determined that there is no need for us to correct the courts order because the court here did not impose a sentence; the court ordered probation and placed Joseph in his parents custody. Only when a court orders a minor removed from the physical custody of his parent or guardian is the court required to specify the maximum term the minor can be held in physical confinement. (Welf. & Inst. Code, 602.) (In re Joseph G., supra, at p. 1744; see also In re Danny H. (2002) 104 Cal.App.4th 92, 106.) Likewise here, at the dispositional hearing the court ordered minor placed on probation, during which time he was to be maintained in his mothers home and remain in her physical custody. Nonetheless, the juvenile court also specifically placed custody of minor with the probation officer and sentenced him to 64 days in juvenile hall; albeit a term which amounted to time served.
We find In re Ali A. (2006) 139 Cal.App.4th 569, particularly instructive in this matter. There, the court placed minor in his parents custody subject to probationary supervision. (Id. at p. 571.) That court subjected minor to no physical confinement subsequent to disposition. (Ibid.) The court ultimately concluded that where a minor is placed in the physical custody of his parents there is no physical confinement and therefore no need to set a maximum term of confinement. (Ibid.) It reasoned that, in such an instance, a juvenile suffers no harm in having his maximum period of confinement determined erroneously or at all: In the event the minor violates the terms of his probation, a further noticed hearing will have to be held before he is subjected to a modified disposition removing him from his parents custody. (See Welf. & Inst. Code, 777.) If that happens, then at that time the juvenile court will have to comply with section 726[, subdivision] (c) and, if applicable, section 731[, subdivision] (b) in setting and/or declaring the maximum term of physical confinement. In the meantime, the maximum term of confinement contained in the current dispositional order is of no legal effect. Because the minor is not prejudiced by the presence of this term, there is no basis for reversal or remand in this case. (Id. at pp. 573-574.)
Thus, the implicit purpose in the statutory requirement of determining a minors maximum period of confinement is to let officials at the institution of confinement know the maximum term they can hold a juvenile. Where the minor faces no further confinement there is no need to determine the maximum period of confinement. Thus, because minor here faces no further period of confinement, section 726, subdivision (c) is inapplicable.
III. DISPOSITION
The matter is remanded to the juvenile court for an express declaration, in exercise of its discretion, pursuant to section 702. Otherwise, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ King
J.
We concur:
/s/ Ramirez
P.J.
/s/ Miller
J.
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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
