In re Ronald M.

Filed 6/13/06 In re Ronald M. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Dale Ikeda, Judge.

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

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, William Kim and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

On December 3, 2004, a petition was filed pursuant to Welfare and Institutions Code section 602 alleging that appellant, Ronald M., committed a lewd act upon the body of a child under age 14, a felony (Pen. Code, § 288, subd. (a), count one), committed a forcible lewd act on a child under age 14, a felony (Pen. Code, § 288, subd. (b)(1), count two), and committed forcible rape (Pen. Code, § 261, subd. (a)(2), count three).^[1]

On January 14, 2005, the parties reached a plea agreement whereby appellant would admit count one and the remaining allegations would be dismissed. The juvenile court committed appellant to the California Youth Authority (CYA) for the maximum term of confinement of eight years. The court aggregated terms for three prior offenses. This added one consecutive year for a total maximum term of confinement of nine years.^[2] The court awarded applicable custody credits.

On appeal, appellant contends the juvenile court erred because it failed to understand that it had discretion pursuant to section 731, subdivision (b) (section 731(b)) to commit him to a term less than the maximum term of confinement.^[3]

DISPOSITION HEARING

The probation report prepared for the disposition hearing only set forth that the maximum term of confinement for count one was eight years. The report failed to mention that the juvenile court had the discretion to impose a term of confinement less than the eight-year maximum set forth in Penal Code section 288, subdivision (a).

During the disposition hearing, appellant's counsel argued that the best placement for him would be the Salvation Army drug rehabilitation program. Counsel conceded that this program did not have sexual offender counseling but it was the only program that would admit a sexual offender. Counsel represented that appellant could attend group counseling meetings once a week and attend individual therapy sessions twice a month through Alliant International University to deal with his sexual issues.

The prosecutor believed appellant was a threat to the community and argued that his offense was forcible, the victim was a virgin until appellant attacked her, and the victim was pregnant by appellant. The court inquired into the nature of the offense and noted that appellant had a substance abuse problem. The court expressed concern for the safety of the community. The court concluded that the nature of appellant's offense was a forcible rape and not just the inability of the victim to give her legal consent.

The court reiterated that the safety of the public was paramount. The court noted appellant would receive drug treatment as well as treatment in the sexual offender program at CYA. The court found appellant's mental and physical states were such that he would benefit from the reformatory, discipline, or other treatment provided by CYA and committed him to the maximum term of confinement.

DISCUSSION

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.) â€