In re Susana G.

Filed 10/2/07 In re Susana G. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from an order of the Superior Court of Kings County. George L. Orndoff, Judge.

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.

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It was alleged in a juvenile wardship petition (Welf. & Inst. Code, 602) filed October 31, 2006, that appellant Susana M., a minor, committed misdemeanor assault with a deadly weapon (Pen. Code, 245, subd. (a)(1))^[1]and felony vandalism ( 594, subd. (a)), and that she committed the former offense for the benefit of, at the direction of or in association with, a criminal street gang, with the specific intent to promote, further or assist in criminal conduct by gang members, within the meaning of section 186.22, subdivision (d) (section 186.22(d)). Pursuant to a plea agreement, appellant admitted the assault and vandalism allegations, and the court dismissed the section 186.22(d) allegation. Subsequently, at the disposition hearing, the juvenile court adjudged appellant a ward of court; found that appellants welfare required that her physical custody be removed from her parents (Welf. & Inst. Code, 726, subd. (a)(3); ordered her committed to the Kings County Boot Camp Female Treatment Center (FTC) for a period not to exceed one year but not less than 90 days, and declared appellants maximum period of physical confinement (MPPC) (Welf. & Inst. Code, 726, subd. (c)) to be three years four months, by aggregating confinement periods for the two offenses.

On appeal, appellant contends (1) the juvenile court abused its discretion in ordering appellant committed to the FTC, and (2) the inclusion in the MPPC of confinement time for both of the instant offenses violated section 654. We will reduce the MPPC by four months, the period attributable to the instant misdemeanor assault, and otherwise affirm.

FACTS

Instant Offenses^[2]

At 9:18 p.m. on June 2, 2006, police officers were dispatched to investigate a possible battery. Shortly thereafter, officers made contact with Juan G. (Juan), who stated the following. He was sitting in the back seat of a vehicle belonging to his cousin, Maura R. (Maura), when appellant approached him, began yelling, saying the word Norte, and struck him in the face with her fist. At about that time, Victor Hernandez, age 21, walked over to [Juan] and struck him in the mouth with an unidentified object. Shortly thereafter, Juan heard a crash and glass fell on him. At that point, appellant opened the door, and she and Hernandez began kicking Juan.

Officers also learned, apparently from Maura, that when Maura tried to stop the attack, appellant walked back to her vehicle, retrieved a head of a hammer, and threw it through the back window of [Mauras] vehicle.

Juan told police that Hernandez is a Norteno gang member and he (Juan) admits being a Southerner.

On June 3, 2006, appellant told police the following. She had been hit by a bottle of soda, apparently thrown by somebody in Ruizs car. She and Hernandez then drove around the parking lot looking for the vehicle, and eventually found Ruizs car. At that point, Hernandez walked over to Ruizs car and began to strike Juan, who was sitting in the back seat. Initially, Juan did not have a pipe in his hand, but [he] did retrieve a pipe from the inside of . . . Ruizs car.

When police encountered Juan, he had blood on his shirt, the right side of his face was swollen and he had lost a tooth when Hernandez struck him in the face.

At the hearing at which she entered her admissions, appellant admitted she tried to strike Juan with her fist. She also stated she threw a rock at the car, in an attempt to hit Juan with it, and the rock hit the car window, breaking it. She denied that she threw a hammer head.

Additional Background

Appellant has suffered no prior juvenile adjudications. Her prior juvenile record [consists of] citation[s] for fighting in a public place and disturbance of the peace, both [of which] were handled informally.

At the time of the preparation of the RPO, appellant was 17 years old and in the twelfth grade. Her last recorded grades, for five classes, included two grades of A and no grade lower than a B-.

Appellant submitted, and the court considered, six letters from school personnel. In these letters, appellant is consistently described in positive terms. The following comments from these letters are representative: [Appellant] is a hardworking, dedicated young student who has been very successful in my classes; she is well mannered and is always trying her best; she was a very hardworking and honest student; she has always been polite and courteous; she can often be found helping her classmates; and I have always found [her] to be a hard-working and respectful young woman towards me.

Victor Hernandez is known by law enforcement to be an associate of Norteo gang members.

DISCUSSION

Commitment to FTC

Appellant contends the court abused its discretion in ordering FTC commitment rather than imposing a less restrictive disposition, viz., placing appellant on probation while allowing her to live at home and go to school, because the instant offenses constituted an isolated and out of character incident of aberrant behavior by a successful and well-adjusted minor, and a boot camp commitment will sever[] . . . the connection between the minor and her community, particularly her positive involvement in her local high school and the pattern of cooperative behavior with her instructors.

[T]he type of disposition made by the juvenile court is within the sound discretion of that court. In reviewing a juvenile courts disposition whether it be a commitment to the California Youth Authority^[3]or a disposition of a less serious nature the appellate court must indulge in all reasonable inferences from the evidence and the record to support the action of the juvenile court. [Citations.] An order of disposition, made by the juvenile court, may be reversed by the appellate court only upon a showing of an abuse of discretion. (In re Darryl T. (1978) 81 Cal.App.3d 874, 877.) A juvenile court does not abuse its discretion where its dispositional order is supported by substantial evidence. (Cf. In re Lorenza M. (1989) 212 Cal.App.3d 49, 53 [CYA commitment].)

In determining whether a particular disposition was within the juvenile courts discretion, we must examine the record in light of the purposes of the law governing delinquency adjudications. (Welf. & Inst. Code, 200 et seq.; In re Lorenza M., supra, 212 Cal.App.3d at p. 53.) Accordingly, we look to Welfare and Institutions Code section 202, which provides, in relevant part, as follows:

(a) The purpose of this chapter is to provide for the protection and safety of the public and each minor under the jurisdiction of the juvenile court and to preserve and strengthen the minors family ties whenever possible, removing the minor from the custody of his or her parents only when necessary for his or her welfare or for the safety and protection of the public. When removal of a minor is determined by the juvenile court to be necessary, reunification of the minor with his or her family shall be a primary objective. When the minor is removed from his or her own family, it is the purpose of this chapter to secure for the minor custody, care, and discipline as nearly as possible equivalent to that which should have been given by his or her parents. This chapter shall be liberally construed to carry out these purposes.

(b) Minors under the jurisdiction of the juvenile court as a consequence of delinquent conduct shall, in conformity with the interests of public safety and protection, receive care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances. This guidance may include punishment that is consistent with the rehabilitative objectives of this chapter. If a minor has been removed from the custody of his or her parents, family preservation and family reunification are appropriate goals for the juvenile court to consider when determining the disposition of a minor under the jurisdiction of the juvenile court as a consequence of delinquent conduct when those goals are consistent with his or her best interests and the best interests of the public.

Thus, when we assess the record in light of the purposes of the Juvenile Court Law [citation] we evaluate the exercise of discretion with punishment and public safety and protection in mind. (In re Lorenza M., supra, 212 Cal.App.3d at pp. 57-58; accord, In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684 [[a] fundamental premise of delinquency adjudication is that the court must focus on the dual concerns of the best interests of the minor and public protection]; In re Asean D. (1993) 14 Cal.App.4th 467, 473 [the 1984 amendments to the juvenile court law reflected an increased emphasis on punishment as a tool of rehabilitation, and a concern for the safety of the public].)

Where, as here, a juvenile court orders a minor removed from the custody of a parent, the court must find at least one of certain enumerated facts, including, as relevant here, the following: That the welfare of the minor requires that custody be taken from the minors parent or guardian. (Welf. & Inst. Code, 726, subd. (a).) Here, as indicated above, the court made this finding. Therefore, the question before us is whether substantial evidence supports this finding. And as is also indicated above, we consider this question in light of the purposes of the juvenile court law.

As appellant indicates, some evidence supports the claim that placement with her parents, rather than in the FTC, would be beneficial to her. Although such factors militate in favor of home placement, they do not compel such a result. In In re Reynaldo R. (1978) 86 Cal.App.3d 250, 256 this court held that the juvenile court did not abuse its discretion in committing the minor to the CYA, stating, [t]he minors record, although justifying a less restrictive disposition, was sufficient for a finding of probable benefit to the minor by a Youth Authority commitment. Similarly, in the instant case, although the record contains evidence supporting a different result, substantial evidence supports the disposition. Specifically, the record provides support for the following: appellant engaged in violent conduct, in consort with a known gang-member, under circumstances suggestive of gang-related retaliation; she caused significant property damage; and she engaged in this conduct despite having received warnings following two other instances of misconduct.

On this record, the court reasonably could have concluded that a disposition less restrictive than FTC placement would not have been adequate to hold appellant accountable for her actions or to provide for the safety and protection of the public, and that therefore appellants welfare required that she be removed from the custody of her parents. The court did not abuse its discretion in ordering FTC commitment.

Section 654

As indicated above, the court set an MPPC of three years four months, consisting of three years for the act of felony vandalism and four months for the misdemeanor assault. Appellant contends the court violated section 654 by including in the MPPC periods for both offenses because the two offenses were based upon a single act of throwing a rock at a victim seated in a car. The People counter that appellants claim is forfeited by her failure to raise it in the juvenile court. We disagree.

Section 654 provides, in relevant part: 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. Thus, section 654 proscribes double punishment for multiple violations of the Penal Code based on the same act or omission. (People v. Siko (1988) 45 Cal.3d 820, 822.) The statute is applicable in juvenile court proceedings where, as here, the juvenile court elects to aggregate the periods of physical confinement on multiple counts pursuant to Welfare and Institutions Code section 726. (In re Billy M. (1983) 139 Cal.App.3d 973, 978; In re Adrian R. (2000) 85 Cal.App.4th 448, 454 [[a]ggregation is not mandatory or automatic, but rests within the sound discretion of the juvenile court].)

Ordinarily, a section 654 claim is not waived by failing to object below . . . . Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal. [Citation.] This is an exception to the general rule that only those claims properly raised and preserved by the parties are reviewable on appeal. This exception is . . . required by . . . case law holding that a court acts in excess of its jurisdiction and imposes an unauthorized sentence when it fails to stay execution of a sentence under section 654. (People v. Hester (2000) 22 Cal.4th 290, 295.)

The rule that a defendant may challenge an unauthorized sentence on appeal even if he or she failed to object below is subject to its own exception: Where the defendants have pleaded guilty in return for aspecified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction. The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process. (People v. Hester, supra, 22 Cal.4th at p. 295.) It is on this exception that the People base their forfeiture argument.

However, in the instant case, there was no specified period of confinement. At the outset of the hearing at which appellant entered her admissions, the following exchange occurred:

THE COURT: Susana as I understand it, today youre going to admit that you committed an act of vandalism to an automobile . . . and also admit[] that you committed an assault upon Juan G. with the deadly weapon. If you admit both of those two charges are true then [the section 186.22(d) allegation] would be dismissed.

Is that your understanding what the lawyers are telling me?

THE MINOR: Yes.

THE COURT: Is that what you want to do?

THE MINOR: Yes.

Thereafter, in advising appellant of the consequences of her admissions, the court told her, If you admit Counts II and III are true, the maximum time you could be committed would be . . . [] [f]or up to three years and four months.

The foregoing establishes that appellant did not agree to the juvenile court equivalent of a specified sentence. Rather, she agreed to the maximum time she could be held in physical confinement based on the allegations she admitted.

On the significance of the difference between a specified sentence and an agreed-upon maximum term, we find instructive People v. Buttram (2003) 30 Cal.4th 773. In that case our Supreme Court considered the definition of specified as the term relates to sentencing. The defendant there pled guilty to felony charges in exchange for assurances that he would be sentenced to no more than an agreed maximum sentence of six years. (Id. at p. 776.) In holding that the absence of a certificate of probable cause was not required to appeal that sentence, the court rejected the Court of Appeals conclusion that a maximum sentence includes the defendants agreement to any sentence below the maximum. (Id. at p. 777.) The court reasoned that a plea agreement providing for a maximum sentence inherently reserves the parties right to a sentencing proceeding in which they may litigate the appropriate individualized sentencing choice within the constraints of the bargain and the trial courts lawful discretion. (Ibid.) The court concluded that when parties negotiate a maximum sentence, they obviously mean something different than if they had bargained for a specific or recommended sentence. (Id. at p. 785.) By negotiating only a maximum term, the parties leave to judicial discretion the proper sentencing choice within the agreed limit. Unless the agreement itself specifies otherwise, appellate issues relating to this reserved discretion are therefore outside the plea bargain . . . . (Id. at p. 789.)

The parties here, by negotiating a maximum period of confinement rather than a specified term, left open the length of the MPPC. As indicated above, the juvenile court could have set a lesser MPPC by exercising its discretion not to aggregate confinement periods for the two offenses. (Welf. & Inst. Code, 726, subd. (c).) In agreeing to the upper limit of the MPPC rather than a specified MPPC, the parties left open the issue of the length of the MPPC. Thus, appellants challenge to the MPPC is not an attempt to trifle with the courts, and her section 654 claim is properly before us. (Compare In re Giovani M. (2000) 81 Cal.App.4th 1061, 1063 [minor forfeited section 654 claim where he admitted offenses [p]ursuant to an agreement that [he] would receive an aggregated commitment to the [CYA] for a maximum of five years and two months on [aggregated offenses] (italics added).)

We turn now to the merits of this claim. As appellant contends, and the People do not dispute, both of the instant offenses were based on the same act: her throwing the rock which struck Ruizs car. Therefore, the inclusion in the MPPC of confinement periods for both offenses violated section 654

In the adult-offender context, where section 654 is applicable the proper procedure is to impose sentence on the offenses and stay execution of sentence on the offense carrying the lesser penalty, with the stay to become permanent when service of the greater sentence is complete. (People v. Dominguez (1995) 38 Cal.App.4th 410, 420.) Section 654 has limited application in delinquency cases. Welfare and Institutions Code section 726, subdivision (c) states that a minor removed from the custody of his or her parents cannot be held in physical confinement for a period longer than the maximum term of imprisonment that could be imposed on an adult convicted of the same offenses. However, since Welfare and Institutions Code section 726, subdivision (c) is concerned with actual periods of confinement and not concepts of double punishment, there is no necessity that a juvenile court employ the rubric of staying the term of confinement for one of two offenses to which section 654 applies. It is merely necessary that the term for one of those offenses not be used to calculate the maximum period of physical confinement. (In re Asean D., supra, 14 Cal.App.4th at pp. 474-475; In re Billy M., supra, 139 Cal.App.3d at pp. 978-979.) Accordingly, we will reduce the MPPC by four months, the period attributable to the offense carrying the lesser penalty, viz., the misdemeanor assault.

DISPOSITION

The disposition order is modified to provide that appellants maximum period of physical confinement is three years, representing a four-month reduction of the MPPC declared by the court. As modified, the judgment is affirmed.

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^* Before Harris, Acting P.J., Wiseman, J. and Gomes, J.

^[1]Except as otherwise indicated, all statutory references are to the Penal Code.

^[2]Except as otherwise indicated, our summary of the facts of the instant offenses is taken from the report of the probation officer (RPO). The factual summary in the RPO is taken from a Hanford Police Department report.

^[3]Effective July 1, 2005, the California Youth Authority (CYA) was renamed the Department of Corrections and Rehabilitation, Juvenile Justice. (Govt. Code, 12838, subd. (a).)