In re Coleman K.

Filed 10/16/06 In re Coleman K. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Martin Suits, Judge.

Catherine Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Stan A. Cross and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant admitted allegations, contained in a supplemental juvenile wardship petition (Welf. & Inst. Code, § 777),^[1] that he violated terms and conditions of probation granted in a previous wardship petition by being discharged from the Day Reporting Center for “lack of progress“ evidenced by multiple disciplinary referrals, unexcused absences and positive drug tests. Following a disposition hearing, the court ordered appellant continued on probation and committed to the juvenile hall’s Ashjian Treatment Center for a period not to exceed 120 days, and declared a maximum period of physical confinement (MPPC) of three years four months, based on offenses adjudicated in previous wardship proceedings. Specifically, the MPPC consists of three years on a 2005 felony second degree burglary (Pen. Code, §§ 459; 460, subd. (b)) adjudication and four months on a 2005 adjudication of misdemeanor assault with a deadly weapon or by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)).

On appeal, appellant contends the court erroneously failed to exercise its discretion in setting the MPPC. We will affirm.

DISCUSSION

When the juvenile court orders a minor removed from the custody of his or her parents or guardian, the juvenile court must specify that the minor may not be held in physical confinement longer than the maximum term of imprisonment which could be imposed on an adult convicted of the same offense. (§ 726, subd. (c).) “ ‘Physical confinement’ means placement in a juvenile hall, ranch, camp, forestry camp or secure juvenile home . . . or in any institution operated by the Youth Authority.’ “^[2] (Ibid.) The general rule is that when a minor is removed from the custody of his or her parents or guardian, the juvenile court does not have discretion to impose an MPPC that is less than the maximum term that could be imposed on an adult. (§ 726; In re James A. (1980) 101 Cal.App.3d 332, 336-338.)

An amendment to section 731 which became effective January 1, 2004, creates an exception to this rule. As this court held in In re Carlos E. (2005) 127 Cal.App.4th 1529, section 726 “sets the upper limit for a term of confinement in all cases” (id. at p. 1538), but the 2004 amendment to section 731, subdivision (b) (section 731(b)), the relevant part of which is set forth in the margin,^[3] gives the juvenile court the discretion in any case in which it commits a minor to CYA to fix the MPPC at less than the adult statutory maximum, “based upon the facts and circumstances of the matter” (id. at p. 1543). (Accord, In re Alex N. (2005) 132 Cal.App.4th 18, 26; In re Sean W. (2005) 127 Cal.App.4th 1177, 1184-1186; In re Jacob J. (2005) 130 Cal.App.4th 429.)

There is no dispute that the MPPC of three years four months declared by the juvenile court is equal to the maximum term an adult could receive for the same offenses.

“[T]he maximum term [under section 726] must be specified in accordance with the formula set forth in subdivision (a) of Penal Code section 1170.1, i.e., the sum of the ‘principal term’ (the longest term imposed for any of the offenses) and ‘subordinate terms’ (one-third of the middle term imposed for each other offense).” (In re Eric J. (1979) 25 Cal.3d 522, 536.) Although Penal Code section 1170.1, on its face, applies only to sentences for felonies, our Supreme Court has held that when a juvenile court determines the MPPC for a minor adjudicated of multiple offenses, at least one of which is a misdemeanor, and the court chooses to impose consecutive terms, subordinate misdemeanor terms are calculated as one-third of the maximum term of such offenses. (Id. at pp. 536-538.) The MPPC of three years four months reflects the three-year upper term for second degree burglary plus four months, representing one-third of the one-year term for a misdemeanor violation of Penal Code section 245, subdivision (a)(1).

Appellant first argues as follows: the juvenile court had, but failed to exercise, discretion under section 731(b) to impose a lesser MPPC, and therefore this court must remand the matter to allow the juvenile court to exercise its discretion. We disagree. The discretion conferred by section 731(b) applies only when a minor is committed to CYA. (In re Geneva C., supra, 141 Cal.App.4th 754.) Here, where a minor is removed from the custody of his parents or guardian but not committed to CYA, section 726 controls, and, as indicated above, that statute requires that the MPPC be equal to the adult maximum sentence.

Appellant also argues that if the juvenile court’s discretion under section 731(b) to declare an MPPC of less than the adult maximum when the court orders CYA commitment does not extend to the situation in which the court orders a less restrictive placement which, like appellant’s commitment to Ashjian Treatment Center, nonetheless constitutes “ ‘[p]hysical confinement’ “ (§ 726, subd. (c)), the statutory scheme violates appellant’s right to equal protection of the laws under the United States and California Constitutions because it treats differently two “similarly situated” groups, viz. “those committed to CYA and those committed to non-CYA institutions.” Again, we disagree.

An equal protection challenge requires a showing the state has treated two or more similarly situated groups in an unequal manner. (In re Eric J., supra, 25 Cal.3d at pp. 530-531.) “The ‘similarly situated’ prerequisite simply means that an equal protection claim cannot succeed, and does not require further analysis, unless there is some showing that the two groups are sufficiently similar with respect to the purpose of the law in question that some level of scrutiny is required in order to determine whether the distinction is justified.” (People v. Nguyen (1997) 54 Cal.App.4th 705, 714.)

Appellant fails to demonstrate his juvenile hall commitment places him in a sufficiently similar position with a juvenile committed to CYA. The twin goals of the juvenile justice system are to (1) protect the public and (2) “protect . . . the youthful offender” by providing “ ‘ “correction and rehabilitation . . . .” ‘ “ (In re Kasaundra D. (2004) 121 Cal.App.4th 533, 539.) With respect to the latter goal, minors committed to CYA stand in a different position than minors placed in less restrictive placements because with respect to the latter group, after disposition the juvenile court continues to supervise the minor’s progress and may “make any and all reasonable orders for the conduct of the ward” (§ 730, subd. (b)), whereas CYA commitment “deprives the juvenile court of any authority to directly supervise the juvenile” (In re Ronny P. (2004) 117 Cal.App.4th 1204, 1208). Therefore, the two groups are not similarly situated with respect to the purpose of the law in question. Accordingly, appellant’s equal protection claim fails.

DISPOSITION

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 Welfare and Institutions Code.

^[2] The California Youth Authority (CYA) is now known as the Division of Juvenile Justice (Gov. Code, §§ 12838, 12838.5). (In re Geneva C. (2006) 141 Cal.App.4th 754, 756, fn. 2.) However, we will do as statutory and decisional law continues to do and refer to CYA.

^[3] “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 . . . .” (§ 731(b), italics added.)