In re Shawn L.

Filed 9/6/07 In re Shawn L. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. Ronald M. Christianson, Judge. Affirmed.

Lisa M. Bassis, 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 Eric A. Swenson, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

Minor pled no contest to allegations that he committed second degree robbery (Pen. Code, 211) while personally armed with a dangerous or deadly weapon (Pen. Code, 12022, subd. (b)(1)). Pursuant to a plea bargain, minor was committed to the Division of Juvenile Justice (DJJ)^[1]for a maximum custody time of six years. Minors sole contention is that the juvenile court abused its discretion by not considering the facts and circumstances of his case when establishing his maximum custody time. (Welf. & Inst. Code, 731, subd. (b).)

FACTS

On July 17, 2006, minor and two associates robbed the victim in the parking lot of a strip mall. Minor used a BB gun during the commission of the robbery. The People requested a fitness hearing (Welf. & Inst. Code, 707, subd. (c)) and filed a petition alleging that minor committed second degree robbery while personally armed with a dangerous or deadly weapon. At the start of the fitness hearing, the court announced that a resolution had been reached between the parties.

As part of a plea bargain, minor agreed to a maximum custody time of six years in exchange for (1) his crime not counting as a strike; (2) the district attorney withdrawing the request for a fitness hearing; and (3) a recommendation that he be screened for fire camp eligibility. Minor pled no contest to the allegations. After minors plea, the court announced that it fixed minors maximum custody time at six years.

At the disposition hearing, the court stated that it read and considered [minors] probation report. The court asked if minors counsel had any comments. Minors counsel responded by submit[ting] on the [probation] report. The court then fix[ed the] discretionary maximum custody time pursuant to the agreement [at] six years; five years for the robbery, one year for the enhancement. Minors counsel interrupted, stating, Thats the maximum sentence. The court responded, Thats the maximum possible hold. The Youth Authority, when [minor] gets there, will screen his file and set an initial date for release. Thats what we had previously discussed. And I cant remember what the parole date was going to be. Two years, I believe.

DISCUSSION

Minor asserts that the six-year maximum custody period written into his plea agreement was a nonbinding recommended disposition and, therefore, the juvenile court was required to consider the facts and circumstances of the case, and exercise its own discretion in setting minors maximum confinement time. Minor contends the juvenile court failed to exercise its discretion by not acknowledging the facts and circumstances of the case when committing minor to DJJ for the six-year maximum custody period. To fully address minors contention, we will separate the discussion into two sections. First, we will address minors assumption that the six-year maximum custody time was a nonbinding recommended disposition. Second, we will address the issue of the courts discretion to sentence minor.

1. Six-year Maximum Custody Time Was Agreed

Minor assumes that the six-year maximum custody period written into his plea agreement was a nonbinding recommended disposition.

We review the plea agreement using the paradigm of contract law. (People v. Knox (2004) 123 Cal.App.4th 1453, 1458.) We begin by looking at the specific language of the agreement to ascertain the expressed intent of the parties. [Citations.] Beyond that, [we] seek to carry out the parties reasonable expectations. [Citations.] (Ibid.)

In the instant case, the record supports the conclusion that the maximum custody time of six years, designated in the plea agreement, was an agreed upon confinement time rather than a recommendation. We base this conclusion on several pertinent facts. First, in paragraph 7 of the plea form there is an agreement that the maximum custody time would be six years; there is no indication in paragraph 7 that this is merely a recommendation. The use of the term maximum term of imprisonment in juvenile court proceedings does not refer to a recommended lid or cap, rather it is a term of art referencing a calculation involving the upper term for the substantive offense in addition to the term for any enhancement that has been found true. (Welf. & Inst. Code, 726, subd. (c); In re George M. (1993) 14 Cal.App.4th 376, 381-382.)

Second, in paragraph 11 of the plea form, minor initialed next to subdivision (c), indicating that [t]here is an agreement between the parties and the Court as to the disposition of the case. In contrast, minor did not initial next to paragraph 11, subdivision (a), indicating [t]here is no agreement as to the outcome of the case, and the Court will determine what is appropriate at the Disposition Hearing.

Furthermore, our reading of the reporters transcript of minors no contest plea and disposition hearing does not support minors position that the agreement was merely a lid on his maximum term of confinement. (Cf. People v. Buttram (2003) 30 Cal.4th 773, 777-778, fn. 2.) Rather, the record establishes that the People, counsel for minor, and minor understood that as a result of the Peoples withdrawal of the notice for a fitness hearing, the crime not counting as a strike, the recommendation for fire camp, and minors no contest plea to the allegations, a maximum term of six years would be imposed.

Accordingly, we conclude the six-year maximum confinement period was a mutually binding component of the plea bargain.

2. Plea Bargain Approval

Due to our conclusion that minor agreed to a six-year maximum custody period as part of his plea bargain, we will not address minors contention regarding the courts alleged abuse of discretion in setting minors maximum confinement time. Rather, we construe minors contention as alleging an abuse of discretion in the courts decision to approve the plea bargain.

We review the juvenile courts decision to approve the plea bargain for an abuse of discretion. (People v. Holmes (2004) 32 Cal.4th 432, 443.)

In adult criminal cases, under Penal Code section 1192.5, when a defendants no contest plea is accepted, the court cannot proceed as to the plea other than as specified in the plea. Penal Code section 1192.5 is not per se applicable to juvenile cases, and there is no comparable provision in the Welfare and Institutions Code. However, the principles underlying Penal Code section 1192.5 are applicable to plea bargain situations in juvenile courts. (In re Jermaine B. (1999) 69 Cal.App.4th 634, 640.) Accordingly, those principles are applicable to the plea bargain in this case.

Thus, where there is a plea bargain, the juvenile court may either approve the bargain and sentence the minor as specified in the bargain, or not approve it and let the minor enter a new plea. (Pen. Code, 1192.5; In re Jermaine B., supra, 69 Cal.App.4th at p. 639.) If the juvenile court approves the bargain, then it effectively agrees to exercise its sentencing discretion in accord with the terms of the bargain. In minors case, the juvenile court plainly followed this procedure, as evinced by its statement, [f]ix discretionary maximum custody time pursuant to the agreement [at] six years; five years for the robbery, one year for the enhancement.

In addition, prior to making the binding decision to approve minors plea bargain, the juvenile court considered the probation departments recommendation and asked minors counsel if he had any comments to give to the court. This provided minor with a meaningful opportunity to raise an objection or provide the court with additional information that might affect the approval of the plea bargain. However, minors counsel responded that he would submit on the report.

Furthermore, based upon the following facts noted in minors probation report, we conclude minors commitment to DJJ, for a maximum of six years, was a reasonable disposition: (1) minor had previously been on felony probation for battery with serious bodily injury (Pen. Code, 243, subd. (d)); (2) the instant offense was premeditated and caused the victim to fear for his life; (3) minor has a substance abuse problem; and (4) minor failed to complete the requirements imposed by the court in his three previous juvenile traffic court cases, including failing to appear for all of the review hearings. The juvenile court acted in accordance with the principles of Penal Code section 1192.5 in approving the plea bargain and committing minor for the agreed upon maximum confinement period. The juvenile court did not abuse its discretion in approving the plea bargain.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

HOLLENHORST

J.

GAUT

J.

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^[1] Formally known as the California Youth Authority. (Gov. Code, 12838, subd. (a), 12838.3; Welf. & Inst. Code, 1710, subd. (a).)