In re Curtis C.

Filed 6/19/06 In re Curtis C. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Curtis C. appeals from a dispositional order committing him to the California Youth Authority (CYA).[1] Pursuant to a plea agreement, appellant pled no contest to one count of vehicle theft (Veh. Code, § 10851, subd. (a)) and one count of misdemeanor vehicular evasion from a peace officer (Veh. Code, § 2800.2). Appellant admitted allegations supporting a great bodily injury enhancement associated with the vehicle theft count (Pen. Code, § 12022.7, subd. (a)).

Appellant contends the juvenile court erred by imposing consecutive terms for the two substantive offenses instead of staying the misdemeanor vehicular evasion offense, by failing to exercise its discretion in setting the maximum term of confinement, and by making erroneous entries on the order committing him to the CYA. He also asserts that the juvenile court abused its discretion in committing him to the CYA and that his trial counsel was ineffective for failing to investigate a juvenile hall incident that the court relied upon in committing appellant to the CYA.

We agree that the juvenile court failed to exercise its discretion in setting appellant's maximum term of confinement pursuant to Welfare and Institutions Code section 731, subdivision (b), and that the commitment form contains errors that must be corrected upon remand. Accordingly, we reverse the dispositional order in part and direct the juvenile court upon remand to correct certain errors on the CYA commitment form and to exercise its discretion in setting appellant's maximum term of confinement. In all other respects, the dispositional order is affirmed.

Procedural Background

A sixth supplemental juvenile wardship petition filed on August 5, 2004, described appellant Curtis C., then 17 years old, as falling within the provisions of Welfare and Institutions Code section 602. The petition alleged three counts. Count one charged appellant with auto theft (Veh. Code, § 10851, subd. (a)) and alleged an enhancement for personal infliction of great bodily injury on a non-accomplice (Pen. Code, § 12022.7, subd. (a)). Count two charged appellant with evading a peace officer causing serious bodily injury (Veh. Code, § 2800.3), and count three charged appellant with driving without a license (Veh. Code, § 12500, subd. (a)).

The petition also alleged two prior felonies and three prior misdemeanors for purposes of aggregating appellant's commitment time, including two felony violations of Penal Code sections 459 and 460, subdivision (a) (burglary), misdemeanor violations of Penal Code sections 242 and 243, subdivision (a) (battery), a misdemeanor violation of Penal Code section 496, subdivision (a) (receiving stolen property), and a misdemeanor violation of Penal Code section 602.5 (trespassing).

At the initial hearing on August 26, 2004, appellant was released on home supervision. When he failed to report, the court terminated home supervision and ordered appellant's arrest. Appellant was detained pending arraignment. Appellant denied the charges in the wardship petition at a hearing on September 8, 2004.

The jurisdictional hearing commenced on November 3, 2004. After the auto theft victim testified, defense counsel informed the court that the parties had agreed to a resolution of the matter. No further testimony was taken. Appellant entered a plea of no contest to the vehicle theft count and admitted the great bodily injury enhancement. On oral motion of the District Attorney, count two alleging a violation of Vehicle Code section 2800.3 (vehicular evasion resulting in serious bodily injury) was amended and reduced to a misdemeanor violation of Vehicle Code section 2800.2 (evading a peace officer), to which appellant pled no contest. Count three (driving without a license) was dismissed. The court informed appellant that the maximum period for which he could be confined under the terms of the agreement was six years and four months.

At the disposition hearing on December 21, 2004, the court committed appellant to the CYA and imposed a maximum period of confinement of six years four months, with credit for time already served. Appellant filed a timely notice of appeal from the dispositional order.

Facts

Because the jurisdictional hearing was interrupted when the parties agreed to resolve the matter, the facts are taken from the disposition report. The matter arises out of a car theft, a police chase, and a resulting auto accident. At 2:00 a.m. on June 17, 2004, sheriff's deputies saw appellant driving a Honda at about 45 miles per hour in a residential area in Richmond. Because that was considered a high rate of speed for that area, the deputies began following appellant and activated their lights and siren in order to effect a traffic stop. Instead of stopping, appellant accelerated to approximately 50 to 55 miles per hour before losing control of the vehicle and crashing into a tree. Appellant and his passenger, Demario N., left the vehicle and lay down on the ground. Demario, appellant's cousin, was badly injured. Both were taken to a hospital where appellant was cited and released to his mother. Demario was treated for serious injuries, including internal bleeding. Although the hospital bill for treating Demario totaled over $15,000, his mother did not seek restitution from appellant because he is a relative.

It was determined that the car belonged to Lucas Tovar. Mr. Tovar's Honda had been taken from in front of his home while he was sleeping. Mr. Tovar testified at the jurisdictional hearing that he did not give anyone permission to take his car.

Appellant told authorities he did not steal the car and did not know it was stolen. He claimed to have â€