In re Gregory P.

Filed 6/22/06 In re Gregory P. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Gregory P., a minor, appeals the juvenile court's dispositional order committing him to the California Youth Authority (CYA),[1] after the court sustained three petitions (Welf. & Inst. Code, § 602)[2] and found that he had committed misdemeanor battery (Pen. Code, § 242), committed a lewd act upon a child (Pen. Code, § 288, subd. (a)), disturbed the peace (Pen. Code, § 415), and violated probation conditions. We conclude the court erred by determining only one of the two maximum periods of confinement required by section 731 when it committed Gregory to CYA. We reverse in part and remand for the court to determine the omitted maximum confinement period.

FACTS

On August 15, 2001, Gregory admitted the allegations of a section 602 petition charging him with misdemeanor battery. He was declared a ward of the court and removed from his parents' custody. On September 6, the court placed Gregory in the care of the probation officer, in suitable open placement, with a total maximum term of physical confinement of six months. On October 4, the court released Gregory to the custody of his grandparents.

On January 22, 2002, Gregory admitted one count of a subsequent section 602 petition, charging him with committing a lewd act upon his younger half-brother. The court ordered a suitable placement on March 4, and set Gregory's maximum confinement time at eight years two months (eight years for a lewd act upon a child and two months for misdemeanor battery).

In May 2003, Gregory admitted, and the court found, that he had violated his probation. The court ordered that Gregory be committed to Clifton Tatum Center for 18 days and then be returned to a suitable placement.

On August 11, 2003, Gregory admitted, and the court found, that he had violated his probation. The court subsequently ordered that he be committed to Clifton Tatum Center for 20 days and detained there pending delivery to a suitable placement.

On September 24, 2004, Gregory admitted that he had violated the terms of his probation by engaging in consensual sex with another ward. The juvenile court found that Gregory had violated the terms of his probation.

On January 10, 2005, appellant admitted a subsequent section 602 petition, charging him with disturbing the peace by fighting. (Pen. Code, § 415, subd. (a).) The juvenile court sustained the petition.

At a March 11, 2005, dispositional hearing, the court found that a CYA commitment was appropriate because Gregory would be benefited by the reformatory educational discipline or other treatment provided by the CYA. Based on the three sustained section 602 petitions, the court imposed an aggregate term of eight years three months (eight years for a lewd act upon a child, a consecutive aggregate term of two months for misdemeanor battery, and a consecutive aggregate term of one month for disturbing the peace).

Prior to announcing the CYA confinement period, the court discussed the intense sexual offender treatment program offered by the CYA, which it described as "the best you can get" if there is any availability in the program. The court noted its preference for Gregory to become "involved in the highest level of sexual offender treatment in the Youth Authority," while acknowledging the difficulty of obtaining a place in that program. Later, the court issued its disposition order, vacating the suitable placement and planning review orders, and stated, "The minor has been tried on probation while in the custody of his parents, and during that time has failed to reform. Total maximum term of physical confinement is eight years and three months." The court made other comments concerning the previous efforts that were made to prevent or eliminate the need for removing Gregory from the home, the probability of his benefiting from services and treatment provided by the CYA, and described the sentence briefly.[3]

The commitment order is on a form developed in 2003. Line 8 of the form has a printed line with a single space in which the court enters the maximum term of confinement: "The maximum period of confinement is (state years and months)." In that space, the court entered "8 years 3 months."

DISCUSSION

Gregory contends the court erred by determining only one of the two maximum periods of confinement required by section 731. We agree. Section 731, subdivision (b) states in relevant part: "A minor committed to the Department of the Youth Authority may not be held in physical confinement for a period of time in excess of the maximum period of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court. A minor committed to the Department of the Youth Authority also may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court, which may not exceed the maximum period of adult confinement as determined pursuant to this section."

In In re Jacob J. (2005) 130 Cal.App.4th 429, 438, the Court of Appeal held that section 731 requires courts to set two maximum CYA confinement periods. The first is the maximum term of physical confinement determined by "the maximum period of imprisonment that could be imposed on an adult convicted of the same offenses." (Jacob J., at p. 438.) The second is the maximum term based on "the particular facts and circumstances of the case under consideration." (Ibid.) This term is independent from, and may override, the first. It "may not be more than that for a comparable adult, but may be less." (In re Carlos E. (2005) 127 Cal.App.4th 1529, 1542.) It "must be tied to the purposes of the juvenile system, which include[s] the . . . rehabilitation of the minor." (Ibid.) In making this determination, the court is not "restricted solely to the aggravating or mitigating circumstance scheme for adults." (Ibid.) Prior to 2004, the maximum term was based solely on the adult standard. (Jacob J., at pp. 434-435.) But effective 2004, an amendment to section 731 requires a separate individual factual assessment to set a second maximum term. (Ibid.)

Here the court set the first maximum confinement period. But it did not enter the second maximum or mention the factors related to it. The commitment order is on a form developed for the prior statute, which contains a space for only one single maximum term. That does not suffice. "The length of a minor's confinement in the CYA is restricted by both" maximums. (In re Alex N. (2005) 132 Cal.App.4th 18, 26, italics omitted.)

Although the court gave reasons for a CYA commitment, that is a separate issue from the maximum terms that apply. (In re Jacob J., supra, 130 Cal.App.4th at p. 438.) In ruling on the maximum, it said: "Total maximum term of physical confinement is eight years and three months." This short phrase contains no findings and is similar to the language the court used in 2002 to set the eight-year, two-month maximum under the prior statute. The court did not comply with the current statute by entering only a single maximum. (In re Alex N., supra, 132 Cal.App.4th at p. 26; Jacob J., at p. 438.)

The Attorney General argues that because the record affirmatively shows that the juvenile court was aware of the facts and circumstances of Gregory's case, it should be presumed that the court was aware of its discretion under section 731, subdivision (b), and that it imposed Gregory's maximum term of confinement based on those facts and circumstances, rather than upon the maximum term of confinement for an adult. Unfortunately, however, the record does not show that the court knew it had discretion to depart from the adult standard or was aware that it had to make a second determination regarding the maximum term of confinement. (In re Sean W. (2005) 127 Cal.App.4th 1177, 1182.) Where the court has not set the second maximum term, as here, "the matter must be remanded to the court for that determination." (In re Jacob J., supra, 130 Cal.App.4th at p. 438.)

The Attorney General also contends that the omission of the second maximum term is harmless. He claims it is not reasonably probable the court would have exercised its discretion by sentencing the minor to a lesser maximum term of confinement. This characterization is speculative. (In re Jacob J., supra, 130 Cal.App.4th at p. 438.) This second maximum term determination is part of the commitment order. (In re Carlos E., supra, 127 Cal.App.4th at p. 1543.) "The court must set the term in all cases where it is committing a minor to CYA . . . ." (Ibid.) "When the court has stated only the maximum term of confinement that could have been imposed on an adult and is silent as to a maximum term based on the facts of the case, it has not spoken to the second, separate maximum called for by the amended statute." (Jacob J., at p. 438.)

Gregory also contends that the record does not reflect that the juvenile court recognized it had the discretion to commit him solely on one petition, instead of aggregating the terms of physical confinement on multiple petitions. (§ 726, subd. (c).) "Aggregation is not mandatory or automatic, but rests within the sound discretion of the juvenile court." (In re Adrian R. (2000) 85 Cal.App.4th 448, 454; see In re Richard W. (1979) 91 Cal.App.3d 960, 982.) Gregory argues that this matter should be remanded to allow the court to exercise its discretion regarding the aggregation of confinement terms on multiple petitions. Because we are remanding Gregory's case to allow the court to set the second maximum confinement term required under section 731, the court may reevaluate the confinement terms if it did not recognize its discretion regarding the aggregation of confinement terms on multiple petitions.

The judgment is reversed and the matter is remanded to the juvenile court with directions to set a maximum term of CYA physical confinement based on the facts and circumstances of Gregory's case. (§ 731; In re Jacob J., supra, 130 Cal.App.4th at p. 439.) In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

PERREN, J.

Brian J. Back, Judge

Superior Court County of Ventura

______________________________

Kenneth I. Clayman, Public Defender, Michael C. McMahon, Chief Deputy, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, Susan S. Kim, Deputy Attorney General, for Plaintiff and Respondent.

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[1] Although the name of the CYA recently has been changed to the Division of Juvenile Justice, we refer to it as the CYA herein, as did the court and the parties below.

[2] All statutory references are to the Welfare and Institutions Code unless otherwise stated.

[3] During a two and one-half year period in suitable placement, Gregory was placed in five different facilities.