In re Ramon D.

Filed 9/4/07 In re Ramon D. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

This is an appeal from a modified judgment of the juvenile court committing a minor to the Department of Corrections and Rehabilitation, Division of Juvenile Justice, formerly known as the Youth Authority. We had earlier remanded with directions that the court exercise its discretion in setting appellant's maximum term of confinement, pursuant to Welfare and Institutions Code section 731, subdivision (b).[1] (In re Ramon D. (Sept. 20, 2005, B177881) [nonpub. opn.].)

In recommitting the minor, the juvenile court erred by improperly considering the minor's behavior while at the Youth Authority in setting the "maximum period of imprisonment." As we shall explain, we choose not to return the matter to the juvenile court to redetermine the minor's period of incarceration. Having twice committed the minor to the Youth Authority, and having stated that the only reason for selecting the high base term as the principal term was the minor's conduct subsequent to the original disposition committing him to the Youth Authority, there is nothing left to resolve.

We therefore direct the juvenile court to amend the judgment to reduce the minor's commitment to the Youth Authority to three years six months. In all other respects, the judgment is affirmed.

FACTUAL AND PROCEDURURAL HISTORY

From 1989 through 2004, Ramon D. committed various offenses found to be true, including repeated battery offenses against family members (Pen. Code,  242), vandalism (id.,  594, subd. (b)(2)(A)), possession of a switchblade on school grounds (id.,  626.10), and probation violations for associating with gang members, possessing gang paraphernalia, failing to comply with curfew, failing to attend school and cooperate with school officials (Welf. & Inst. Code,  635[2]; Cal. Rules of Court, rule 5.760).

At a disposition hearing on August 2, 2004, the court committed Ramon to the Youth Authority for a maximum term of four years six months consisting of (1) the upper term of three years for battery upon a custodial officer sustained on March 24, 2004; (2) a consecutive four months for possessing a switchblade on school grounds sustained on April 13, 2004; (3) a consecutive four months for vandalism sustained on April 13, 2004; and (4) a consecutive two months for each of five batteries sustained on December 21, 2001, February 5, 2002, March 8, 2002, and June 24, 2004. Ramon appealed.

We affirmed all but the length of commitment to the Youth Authority, remanding the matter solely for the juvenile court to reconsider its dispositional order in light of the recent changes in section 731, subdivision (b).

On remand, the court committed Ramon to the Youth Authority, setting "the term at high term [three years] based on the subsequent behavior at [the Youth Authority]. [Otherwise] it would have been midterm [two years]." Ramon filed a notice of appeal that same day, June 5, 2006.

Nine days later respondent sought a "clarification" of the juvenile court's order of commitment. In response, the court added an additional 18 months to the previously ordered maximum term of three years. The court stated: "My intention initially was to give him one more year than he previously got because of his bad behavior in the facility." Ramon filed a second notice of appeal challenging this post-judgment order. No commitment order was issued after either disposition.

DISCUSSION

Imposing the Upper Term

We concluded in our previous opinion that the juvenile court failed to exercise its discretion as required by the amendment to section 731, subdivision (b). We remanded for the juvenile court to exercise its discretion and consider a disposition "based on the particular facts and circumstances" of the case. The court committed Ramon in compliance with our order, but erred in choosing to impose the upper term because of Ramon's "bad behavior while confined."

"[T]he amendments to section 731 were 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. ( 731, subd. (b).)" (In re Jacob J. (2005) 130 Cal.App.4th 429, 437.)

A court's sentence choice must reflect "'the circumstances existing at the time of the offense.'" (People v. Dillon (1983) 34 Cal.3d 441, 481.) The offenses for which Ramon was being committed were battery upon a custodial officer, possessing a switchblade on school grounds, vandalism, and five other batteries. The juvenile court made clear that it was selecting the high term for the battery on a custodial officer because of Ramon's subsequent behavior in the Youth Authority as reflected in the supplemental probation report. This it could not do.[3]

Respondent urges that Ramon waived or invited error because he asked the court to consider his post-conviction conduct as set forth in a supplemental probation report. This argument is without merit for at least three reasons. First, "unauthorized" sentences are reviewable on appeal even if not raised in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 354.)[4] No waiver occurred for the further reason that the post-sentencing report is required. (See People v. Dobbins (2005) 127 Cal.App.4th 176, 180-181.) Furthermore, the conduct set forth in a supplemental probation report may only be used to decrease, not increase, a sentence. (See People v. Collins (1978) 21 Cal.3d 208, 216-217.)

The Additional 18 Months

Nine days after the court announced its sentence, respondent sought clarification of the dispositional order because the court failed to reinstate the additional 18 months sentence for the subordinate offenses.

Ramon argues that the court had no authority to change its prior order because a notice of appeal had been filed. We disagree.

The general rule is that "'"[t]he filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until determination of the appeal and issuance of the remittitur" [citation], thereby divesting the trial court of jurisdiction over anything affecting the judgment. . . .'" (People v. Flores (2003) 30 Cal.4th 1059, 1064; People v. Superior Court (Gregory) (2005) 129 Cal.App.4th 324, 329.)

Where, as here, no commitment order has been issued or transferred to the proper officer, the trial court does not lack authority to modify a sentence. (See People v. Karaman (1992) 4 Cal.4th 335, 344-345 ["If . . . the trial court 'retains in itself the actual or constructive custody of the defendant and the execution of his sentence has not begun,' the court may vacate and modify the sentence"].)

It is clear from the record that the juvenile court inadvertently failed to reimpose the initial 18-month sentence for the subordinate offenses at the time of resentencing. The subsequent correction of that error was within the court's authority.

We direct the juvenile court to amend the abstract of judgment to reduce the minor's commitment to the Youth Authority to three years six months and forward a copy to the Department of Corrections and Rehabilitation, Division of Juvenile Justice. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

YEGAN, J.

John E. Dobroth, Judge

Superior Court County of Ventura

______________________________

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

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Steven D. Matthews, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

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[1] Welfare and Institutions Code section 731, subdivision (b) states: "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 powder of the Youth Authority Board to retain the minor on parole status for the period permitted by Section 1769."

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

[3] At oral argument, the parties agreed it was improper for the court to consider the minor's conduct while at the Youth Authority.

[4] We do not decide whether the first sentence imposed by the trial court was "unauthorized." We simply apply correct legal principles to the arguments made by respondent.