In re Frank M

Filed 2/15/06 In re Frank M. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

Frank M. appeals the juvenile court's dispositional order sustaining a wardship petition for misdemeanor battery (Pen. Code, § 242) and committing him to the California Youth Authority (CYA) for a maximum term of four years based on the current offense and other offenses found true in prior sustained wardship petitions. (Welf. & Inst. Code^[1], §§ 602, 777.) He contends the evidence is insufficient to support the sustained wardship petition. He further contends that the matter must be remanded because the record does not reflect the court's understanding that it had the discretion to characterize the offense chosen for the principal term as a misdemeanor instead of a felony, and because the court failed to exercise its discretion under a recent amendment to section 731, subdivision (b), to decide whether to impose a lesser term for the principal term in computing his maximum term of confinement. We reverse the commitment order and remand for the court to exercise its discretion with regard to the offense chosen for the principal term, and to reconsider the maximum term of commitment to be imposed pursuant to the recent revision to subdivision (b) of section 731. Otherwise, we affirm.

FACTS AND PROCEDURAL HISTORY

Appellant was born in January 1988. On March 12, 2004, a section 602 petition was filed alleging that appellant had committed a battery for the benefit of a criminal street gang, in violation of Penal Code sections 242 and 186.22, subdivision (d). Appellant admitted the allegations of that petition on March 15, 2004.

On August 13, 2004, appellant and another minor were discovered fighting while the two were in a holding cell together at the juvenile court. A deputy sheriff intervened and ordered both of them to the ground. As the other minor was being handcuffed, appellant started to get up off the ground. The deputy feared for his and the other minor's safety, so he pepper sprayed appellant in the face.

On September 9, 2004, a subsequent petition was filed alleging appellant had committed a misdemeanor battery based on the August 13 incident. Appellant denied the petition. Following a court trial, the juvenile court sustained the petition and ordered appellant committed to CYA for a maximum term not to exceed four years, consisting of the principal term of three years for the battery sustained in the March 12, 2004, petition, plus consecutive terms of two months for a prior sustained petition for battery (Pen. Code, § 242), four months for resisting arrest (Pen. Code, § 148), four months for possession of a dagger (Pen. Code, § 12020, subd. (a)(4)), and two months for possession of burglary tools (Pen. Code, § 466).

DISCUSSION

I.

Sufficiency of the Evidence

Appellant first contends that the wardship petition must be reversed because the evidence is insufficient to sustain the finding that the August 13, 2004, incident constituted a battery. According to appellant, the evidence merely demonstrates that he and the other minor who were fighting were engaged in "mutual combat" and that he was merely acting in self-defense.

In reviewing claims of insufficient evidence, "we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.) We do not reweigh the evidence, and reversal is warranted only when the evidence is insufficient to support the judgment under any hypothesis. (Ibid.)

Substantial evidence supports the juvenile court's finding that appellant committed a battery. A battery is defined as "any willful and unlawful use of force or violence upon the person of another." (Pen. Code, § 242.) Our Supreme Court has recognized that "[v]oluntary mutual combat outside the rules of sport is a breach of the peace, mutual consent is no justification, and both participants are guilty of criminal assault. [Citation.] Thus, where the prosecution's evidence shows a jailhouse scuffle, the scene as witnessed does not suggest defendant may have been acting in self-defense, and defendant presents no evidence in mitigation, a finding of criminal assault is justified." (People v. Lucky (1988) 45 Cal.3d 259, 291.) Here, appellant presented no evidence suggesting that he was acting in self-defense when he was caught fighting with another minor in the holding cell. On the contrary, the evidence supports the inference that appellant attempted to revive the confrontation after it had been stopped. Accordingly, the juvenile court did not err in sustaining the wardship petition that charged appellant with committing a battery on August 13, 2004.

II.

The Court's Decision to Treat the Offense Chosen for the Principal Term as a Felony

On March 15, 2004, appellant admitted the allegations of a section 602 petition alleging that he had committed a battery for the benefit of a criminal street gang, in violation of Penal Code sections 242 and 186.22, subdivision (d). In computing appellant's maximum term of confinement, the juvenile court chose that offense as the principal term. Although the court had the discretion to treat the offense as either a misdemeanor or a felony in computing the maximum term of confinement (§ 702), the court merely treated it as a felony for that purpose without explaining its reasons for doing so. Appellant contends, and respondent agrees, that the matter must be remanded for further proceedings because the record does not reflect the court's understanding that it had the discretion to make that determination. (See, e.g., In re Eduardo D. (2000) 81 Cal.App.4th 545, 548-549.)

III.

Section 731, Subdivision (b)

Appellant also contends that the matter must be remanded for the juvenile court to exercise the discretion conferred under a recent revision to section 731, subdivision (b). Effective January 1, 2004, the Legislature amended that statute as italicized below: "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. This section does not limit the power of the Youth Authority Board to retain the minor on parole status for the period permitted by Section 1769."

As appellant correctly notes, this change gives juvenile courts the discretion to impose a lesser term of confinement than the upper term, i.e., that which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the court's jurisdiction where a lesser term is warranted by the facts and circumstances of the particular case. (See In re Jacob J. (2005) 130 Cal.App.4th 429; In re Carlos E. (2005) 127 Cal.App.4th 1529, 1543; In re Sean W. (2005) 127 Cal.App.4th 1177, 1181-1189.) Appellant also correctly notes that the record does not demonstrate that the juvenile court, appellant's attorney, or the probation department were aware of this change in the law. Under the circumstances, we must remand the matter to allow the juvenile court to exercise its discretion in this regard. (In re Jacob J., supra, 130 Cal.App.4th 429; In re Carlos E., supra, at p. 1543; In re Sean W., supra, at pp. 1181-1189.)

We reject the People's contention that appellant waived the issue by failing to raise it below. No objection is necessary to preserve a claim that the court failed to exercise its discretion to impose a lesser maximum term of confinement under section 731, subdivision (b) where, as here, we can infer from the record that the juvenile court failed to exercise that discretion. (In re Jacob J., supra, 130 Cal.App.4th 429; In re Carlos E., supra, 127 Cal.App.4th at p. 1543; In re Sean W., supra, 127 Cal.App.4th at pp. 1181-1189; see also People v. Fuhrman (1997) 16 Cal.4th 930, 942-943 [no waiver of claim that the trial court failed to exercise its discretion where that failure can be inferred from the record].) Although the People note that the probation report refers to the lower, middle, and upper terms applicable to the offense, it cannot be reasonably inferred from this information that the court was aware it had the discretion to choose any of those terms in computing appellant's maximum term of confinement. We also reject the People's claim that we can affirm on the ground that it is not reasonably probable that the court would have exercised its discretion to impose a lesser maximum term of confinement. The juvenile court's failure to exercise its discretion is a fundamental error that deprived appellant of his rights to a fair hearing and procedural due process. (See, e.g., In re Ronnie P. (1992) 10 Cal.App.4th 1079, 1091.)

The People's claim that the court fully considered the facts and circumstances of the case is also unavailing. The record merely reflects that the court relied on those facts and circumstances in determining that appellant should be committed to CYA. Because the record does not demonstrate that the court was aware of its discretion with regard to setting the maximum term of confinement under the recent amendment to section 731, subdivision (b), remand is required.

DISPOSITION

The matter is remanded to the juvenile court with directions to exercise its discretion to characterize the offense chosen for the principal term as a misdemeanor or a felony, and to set the maximum term of confinement pursuant to section 731, subdivision (b). The juvenile court's orders are otherwise affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

John Dobroth, Judge

Superior Court County of Ventura

______________________________

Monique S. Hill, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Adrian N. Tigmo, Deputy Attorney General, for Plaintiff and Respondent.

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^[1] Unless otherwise noted, further statutory references are to the Welfare and Institutions Code.