P. v. Munoz
Filed 11/12/13 P. v. Munoz CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
ULISES MUNOZ,
Defendant and Appellant.
B242665
(Los Angeles
County
Super. Ct.
No. SA072885)
APPEAL from
an order of the Superior Court
of
County, Katherine Mader, Judge. Appeal dismissed.
Mary
Bernstein, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Stephanie A. Miyoshi and
Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Ulises
Munoz purportedly appeals from an order committing him to
housed at a facility of the California Department of Corrections and
Rehabilitation’s Division of Juvenile Justice (DJJ). We dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In an
information filed on March 10, 2010
Munoz was charged with two counts each of carjacking
(Pen. Code, § 215, subd. (a)) and second degree robbery (Pen. Code, § 211)
with firearm-use allegations as to each count (Pen. Code, §§ 12022, subd. (a)(1);
12022.53, subd. (b)). Munoz was 17
years old at the time of the offenses and was charged as an adult pursuant to
Welfare and Institutions Code section 707, subdivision (d).
established in 2009 Munoz and two companions had assaulted a driver and
passenger, took the driver’s keys and the passenger’s wallet at gunpoint and
fled in the car.
Munoz
appeared with counsel on July 2, 2010
and entered a negotiated plea of no contest to one count of carjacking in
return for a five-year prison sentence and dismissal of the three remaining
counts. At the time of Munoz’s plea the
prosecutor explained whether Munoz was to be “housed either in an adult or
juvenile facility will be up to the Department of Corrections and the judge
based upon the applicable law and motions your attorney will make.†Munoz acknowledged that was his understanding
of the disposition. At the conclusion of
the plea hearing the court granted defense counsel’s request to continue the
sentencing hearing to consider the propriety of housing Munoz at a DJJ facility
under section 1732.6.
At the August 16, 2010 sentencing hearing
defense counsel asked the court to order that Munoz be housed at a DJJ facility
rather than at state prison. Counsel asserted
Munoz was eligible for DJJ housing under section 1732.6. The People did not object. The court sentenced Munoz to the middle term
of five years in state prison, and the People dismissed the remaining counts
and firearm-use allegations in accordance with the plea agreement. The court then informed the parties, “I’ve
indicated here on the minute order that [Munoz] is to be sentenced as an adult,
but will be housed at CYA[
and Institutions Code section 1732.6.
I’ve also put on here that this is not a 707(b) offense.â€
At an October 25, 2011 hearing
had been placed in an out-of-state adult contract facility rather than in a DJJ
facility, which counsel believed was due to a clerical error. The minute order of the August 16, 2010
hearing and the abstract of judgment prepared by the clerk showed Munoz was “to
be housed at the California Youth Authority pursuant to section 1731.5 [,
subdivision] (c)†rather than section 1732.6. The court issued an order that Munoz be
returned to the county jail pending placement at a DJJ facility. On December 16, 2011 the court amended the
abstract of judgment and corrected its August 16, 2010 minute order nunc pro
tunc to reflect Munoz was to be sentenced as an adult but housed at a DJJ
facility pursuant to section 1732.6 and Penal Code section 1170.19.
At a
January 27, 2012 hearing Munoz appeared with defense counsel, who told the
trial court DJJ had at some point considered and rejected Munoz for housing
although he was statutorily eligible.
Counsel stated she would be filing a petition for writ of habeas corpus
to compel DJJ to accept Munoz for housing under section 1732.6. The court determined Munoz did not wish, as an
alternative, to move to withdraw his plea.
Following a
hearing on June 11, 2012 the court denied the habeas corpus petition, finding
there was no evidence DJJ’s rejection of Munoz for housing was arbitrary or
wrongful. The court concluded Munoz was
entitled to be resentenced under section 1731.5 and scheduled a sentencing
hearing.
On July 11,
2012 the trial court pronounced the original sentence of five years in state
prison and deleted the requirement that Munoz be housed at a DJJ facility. Munoz filed a notice of appeal from the July
11, 2012 order. There is no certificate
of probable cause in the record.
CONTENTIONS
Munoz
contends (1) the trial court acted in excess of its jurisdiction when it
resentenced him to a five-year term in state prison and deleted the requirement
he be housed at a DJJ facility pursuant to section 1732.6; and (2) DJJ’s
rejection of him for housing was arbitrary because it was improperly based on
section 1731.5, subdivision (c).
Munoz urges us to reverse the July 11, 2012 order and remand the matter
to the trial court with directions that it “recommit†him to a DJJ facility in
accordance with the applicable statutes.
DISCUSSION
When
dealing with a minor charged and convicted as an adult, the trial court can
under certain circumstances order the minor committed to DJJ. (Pen. Code, §§ 1170.17, subd. (a); 1170.19, subd. (a);
Welf. & Inst. Code, § 1732.6, subd. (a).) Alternatively, the court can impose a state
prison sentence, commit the minor to the Department of Corrections and
Rehabilitation and order the minor transferred to DJJ for housing at one of its
facilities. (§ 1731.5, subd. (c).) With respect to both options DJJ retains the
right to reject the minor. (See
County (1972) 7 Cal.3d 575, 583-584; Mardesich v. California Youthful Offender Parole Bd. (1999) 69 Cal.App.4th
1361, 1367; People v. Broun (1980)
109 Cal.App.3d 284, 288-289.)
Here the
plea agreement was that Munoz would be committed to the Department of
Corrections and Rehabilitation and the court would direct he be housed at a DJJ
facility. (See § 1731.5, subd. (c).) The court honored the plea agreement, but DJJ
rejected Munoz for housing, as it was authorized to do.
The
propriety of DJJ’s rejection of Munoz was the subject of his habeas corpus
petition in the trial court. It is not
properly before us on appeal. (
767, fn. 7; People v. Gallardo
(2000) 77 Cal.App.4th 971, 983.) Furthermore,
Munoz’s claim on appeal that he should have been committed to DJJ pursuant to
section 1732.6 as opposed to being housed at a DJJ facility under section 1731.5
is, in effect, a challenge to the validity of his plea without a certificate of
probable cause. It, too, is not properly
before us. (Pen. Code, § 1237.5; see
769-771; People v. Panizzon (1996) 13
Cal.4th 68, 79.)
DISPOSITION
The appeal
is dismissed.
PERLUSS,
P. J.
We
concur:
ZELON, J.
SEGAL, J.
and Institutions Code unless otherwise indicated.
California Youth Authority (CYA). (Gov.
Code, § 12838.5.) The trial court
and counsel used DJJ and CYA interchangeably, as do the applicable
statutes.
