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applying general principles of aider and abettor liability to juveniles
Summary of this case from In re R.C.Opinion
No. B186047.
June 28, 2006. [CERTIFIED FOR PARTIAL PUBLICATION]
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of Facts part II; Discussion parts II and III.
Appeal from the Superior Court of Los Angeles County, No. VJ28128, Charles Q. Clay III, Judge.
Valerie G. Wass, 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, Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
In the published portion of this opinion, we hold that when a criminal defendant or delinquent ward is convicted of aiding and abetting two felony firearm assaults, he cannot also be convicted of being an accessory to those felonies solely on the basis of his immediate flight from the scene and later denials of his own involvement, even if that conduct incidentally helped the shooter escape.
The juvenile court declared Eduardo M. a delinquent ward after the court found that he committed two assaults with a semiautomatic firearm by aiding and abetting the actual perpetrator, in both of which a principal was armed with a firearm (counts 1 and 2), and that he was also an accessory to the assaults (count 4). (Welf. Inst. Code, § 602, subd. (a); Pen. Code, §§ 245, subd. (b), 12022, subd. (a)(1), 32; all further undesignated section references are to the Welfare and Institutions Code.) Based on this case and an earlier sustained delinquency petition in which the court found that Eduardo had violated the terms of his probation, the court committed Eduardo to the Youth Authority for a maximum period of 13 years 8 months.
The court orally found the "principal armed" enhancement true only on count 1, and did not make a finding regarding the same enhancement on count 2. The court later included terms for both enhancements in calculating the maximum confinement time, and the Youth Authority Commitment Form lists both enhancements as having been found true. Because we conclude that both enhancements and any resulting potential custody time must be stricken (unpublished part of opinion), we need not resolve this discrepancy.
The court orally calculated the maximum confinement time as 15 years 4 months, but later corrected that total through a nunc pro tunc order.
Eduardo appeals, contending that (I) the finding that he was an accessory (count 4) must be reversed because his acts in aiding and abetting the assaults (counts 1 and 2) and helping the shooter escape did not sufficiently demonstrate a separate intent to aid the shooter's escape; (II) the findings that a principal was armed during both assaults (counts 1 and 2), and any related potential custody time, must be stricken because being armed with a firearm is an element of assault with a firearm; and (III) the court made several errors in its dispositional order, including (A) failing to determine whether Eduardo had exceptional educational needs; (B) failing to exercise its discretion in calculating his maximum confinement time; (C) declaring the accessory finding (count 4) to be a section 707, subdivision (b) offense; (D) incorrectly calculating his predisposition custody credits; (E) preparing the Youth Authority commitment form; and (F) committing him to the Youth Authority. (The Attorney General concedes issues II and III (B), (C), and (E).)
As explained in the published portion of the opinion, we agree with contention (I) and reverse the finding that Eduardo was an accessory (count 4). In the unpublished portion of the opinion, we agree with contentions (II) and (III) (A), (B), (D), and (E). We modify the adjudication and dispositional orders to strike the findings that a principal was armed during the commission of counts 1 and 2, and any related potential custody time. We also modify the dispositional order to strike the calculation of Eduardo's maximum confinement time and to award Eduardo 89 rather than 88 days of predisposition custody credit. Because we reverse with prejudice the count 4 finding that Eduardo was an accessory, we need not address whether count 4 qualified as a section 707, subdivision (b) offense. We remand for the court to conduct a new dispositional hearing at which it should determine whether Eduardo has special educational needs and determine his maximum possible confinement time, taking our opinion into account. Because those determinations may affect the court's decision whether a Youth Authority commitment is appropriate, we also vacate the Youth Authority commitment order, which the court should reconsider on remand. In all other respects, we affirm the judgment (order of wardship).
FACTS I. The Adjudication Hearing.
On December 3, 2003, the juvenile court declared Eduardo, who was born in April 1989, a delinquent ward based on his admission that on July 6, 2003, he illegally drove a vehicle belonging to someone else. (Veh. Code, § 10851, subd. (a).) The juvenile court placed Eduardo home on probation on condition, among others, that he obey all laws and not "participate in any type of gang activity, or associate . . . with any known gang members."
Approximately one year later, about 11:00 a.m. on December 11, 2004, Hugo Bahena and his cousin Miguel Morales were walking to a store in Compton. Bahena had been, but no longer was, part of a graffiti "tagging crew" that fought with rival "taggers." A blue van with tinted windows drove up and stopped less than 30 feet from the two men. In addition to the driver, the van contained two other people, but neither Bahena nor Morales could identify any of the van's occupants. The van's passenger window was down, and a young male shouted, "where you from?" The two men understood the question asked whether they belonged to a gang. Bahena replied, "nowhere," meaning he and Morales were not gang members. The passenger then fired one shot from a semiautomatic pistol through the open window, hitting Bahena in the leg. Morales ran out of the line of fire, and the van drove off. Morales suspected that the van's occupants fired at Bahena because they belonged to a rival tagging crew with whom Bahena had fought in the past.
Morales helped Bahena walk to a nearby gas station, where someone called the police. About five minutes later, Eduardo drove up to the gas station in the van. Bahena and Eduardo were friends. Eduardo asked what happened, and Bahena replied that he had been shot. Morales said that Eduardo's van was the same one from which the shot was fired, and that Eduardo was involved in the shooting. Eduardo replied that he was not involved in the shooting, did not know who was, and that someone had carjacked the van, which he had just gotten back. While Eduardo was still at the gas station, sheriff's deputies and paramedics arrived. When Deputy Mark Raffalelli arrived, he saw Eduardo seated in the back of a patrol car, and heard Bahena yell at Eduardo, "why did you let your friends shoot me." Raffalelli saw Eduardo reply by shaking his head, "no, he didn't."
Raffalelli advised Eduardo of his Miranda rights, which he waived. ( Miranda v. Arizona (1966) 384 U.S. 436 [ 16 L.Ed.2d 694, 86 S.Ct. 1602].) Eduardo began the interview by claiming "that he didn't know that the van was involved in a crime and that" his sister owned the van. Later, Eduardo changed his story: He admitted he was driving the van with two passengers, both gang members, one of whom he knew had a gun similar to the one Bahena saw the shooter fire. Eduardo's passengers were looking for rival gang members. When they saw the victims, whom Eduardo recognized, he pulled alongside and his armed passenger said he wanted to see who the victims were. The passenger called out, "where are you from?" When the victims replied that they were not gang members, Eduardo's passenger reached out and fired one shot, hitting Bahena. The shooter then told Eduardo "to step on it and get out of there." Eduardo said he "agreed," drove a short distance, and stopped. Both his passengers got out and ran away. He drove back to the crime scene because he was a friend of the victims. Eduardo claimed he did not know his armed passenger intended to shoot anyone.
The juvenile court found that Eduardo assaulted Bahena and Morales with a firearm by aiding and abetting the shooter, and that in both assaults a principal was armed with a firearm (counts 1 and 2). The court also found that Eduardo was an accessory to the same crime (count 4). Based on those findings, the court found that Eduardo had violated the terms of his probation in his 2003 case.
See footnote 1, ante.
II. The Disposition Hearing.
See footnote, ante, page 1351.
At the disposition hearing, the court considered Eduardo's probation report which recommended that he be placed with the Youth Authority. In addition to the 2003 case in which Eduardo was on probation, the report disclosed that on August 23, 2003, he was arrested and charged with grand theft of an automobile, but the records did not disclose the result of the petition. The report disclosed that Eduardo admitted having joined a gang over a year before "because he was having too many problems with his siblings." The report also disclosed that Eduardo was enrolled in school where "[h]is attendance is fair, and his grades are satisfactory. However, he was instructed several time[s] about gang behavior in school." Eduardo currently had four C minus, one C plus, and one B minus grades. The report noted that Eduardo was in violation of probation in his 2003 case because he participated in a gang shooting in this case. The probation officer recommended a Youth Authority placement because Eduardo's "behavior indicates that supervision in the community is no longer effective. The current allegation reflects that the minor shows no effort to comply with the conditions of probation. He has refused repeated demand[s] from the mother to stop hanging with gang members, and the gang life style. [¶] Due to the severity of the alleged offences, . . . a more structured and secure environment, the . . . Youth Authority, would be the idea[l] place for his progressive criminal behavior. While in the . . . Youth Authority, [Eduardo] would have an opportunity to participate in a structured environment, trade programs, and benefit from intensive counseling programs that may redirect the negative behavior that he is presently displaying." The court also considered a report prepared by psychologist Douglas Allen after he interviewed Eduardo, who then was 15 years old. Allen reviewed the police and probation reports from Eduardo's case. Allen reported that Eduardo's primary language was Spanish, but that he conducted the interview in English and found Eduardo's comprehension and expressiveness adequate. Allen opined, however, that Eduardo's more limited English ability may affect his school performance, and Eduardo reported that his performance was better in Spanish than in English. Allen administered a series of tests designed to measure Eduardo's psycho-educational levels, which disclosed that he had a low-average nonverbal I.Q. of 87, a fourth grade reading-recognition level, a first grade spelling level, and a second grade mathematics level. Allen concluded that these results showed that Eduardo's "abilities in all academic areas measured exhibited severe deficiencies" despite Eduardo's reported superior capabilities in Spanish over English. Allen diagnosed Eduardo with an unspecified learning disorder and recommended that instead of a Youth Authority placement, the court consider a probation camp program or the Violence Alternative Program (VAP). The trial court found that all three counts were felonies and qualified as offenses listed under section 707, subdivision (b). The court calculated Eduardo's maximum confinement time as 13 years and 8 months on both the current case and on the December 2003 case by adding the maximum possible sentences for each count: a 9-year upper term plus a 1-year "principal armed" enhancement for the count 1 assault; a 2-year term (one-third of the 6-year middle term) plus a 4-month (one-third) "principal armed" enhancement for the count 2 assault; an 8-month term (one-third of the 2-year middle term) for the count 4 accessory finding; and an 8-month term (one-third of the 2-year middle term) for the probation violation. The court did not address whether Eduardo had any exceptional educational needs. The court awarded Eduardo 88 days of pre-adjudication custody credits based on his counsel's representation and committed him to the Youth Authority. In mitigation and in favor of rehabilitation, the court considered Eduardo's age and remorse shown by his returning to the scene of the crime. In aggravation, however, the court considered that Eduardo was on probation yet "blatant[ly]" disregarded the condition that he not engage in gang activity and that the crime involved violence and "happened exactly as intended by [Eduardo] and his companions." The court found that the aggravating factors "outweigh any consideration the court has in terms of looking, first, to rehabilitation, and so I don't think that a camp commitment, even in the VAP [Program] is appropriate. . . ." The court concluded by stating it would "follow the recommendation of the probation officer . . ., and it does find that it is satisfied that the mental and physical condition and qualifications of [Eduardo] [are] such as to render it probable that he will be benefited by the reformatory, education, discipline or other treatment provided by the Youth Authority. . . ."
See ante fn. 2.
DISCUSSION I. The Court Erred in Finding that Eduardo Both Aided and Abetted and Was an Accessory to the Assaults.
Eduardo contends the juvenile court erred in finding both that he aided and abetted the two assaults, making him liable as a principal (counts 1 and 2), and that he was an accessory to the same assaults (count 4). He does not challenge his two assault convictions but contends that his accessory conviction must be reversed and dismissed. We agree. We hold that because Eduardo was convicted as a principal in both assaults, he cannot also be convicted as an accessory to those assaults solely on the basis of his immediate flight from the scene of the crime and his subsequent denials of his own involvement, even if that conduct incidentally helped a coprincipal to escape.
In California both perpetrators and aiders and abettors are equally liable as principals. Penal Code section 31 defines principals as, among others, "[a]ll persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission. . . ."
"`A person aids and abets the commission of a crime when he . . ., (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating, or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.' [Citations.]" ( People v. Hill (1998) 17 Cal.4th 800, 851 [ 72 Cal.Rptr.2d 656, 952 P.2d 673]; see Pen. Code, § 31.)
On the other hand, a person is an accessory to a crime when "after a felony has been committed, [he] harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, . . . having knowledge that said principal has committed such felony. . . ." (Pen. Code, § 32; see People v. Riley (1993) 20 Cal.App.4th 1808, 1816 [ 25 Cal.Rptr.2d 676]; see People v. Mouton (1993) 15 Cal.App.4th 1313, 1324 [ 19 Cal.Rptr.2d 423].)
By its statutory definition of principals (Pen. Code, § 31), California eliminated several older common law distinctions between principals and accessories. At common law, parties to crimes included first degree principals (actual perpetrators); second degree principals (those actually or constructively present at the crime scene who aid and abet the actual perpetrator); accessories before the fact (those not actually or constructively present at the crime scene who aid and abet the felony, often called "instigators"); and accessories after the fact (accessories in California). These distinctions developed primarily to shield those participating in felonies who were not actual perpetrators (and who thus usually had less moral culpability) from the death penalty, the long-standing common law punishment for all felonies. (2 LaFave, Substantive Criminal Law (2d ed. 2003) Parties to Crime, § 13.1, pp. 326-336; 1 Witkin Epstein, Cal. Criminal Law (3d ed. 2000) Introduction to Crimes, § 77, pp. 122-123.)
This common law tradition included the following rule: "A principal in either the first or second degree may not also become an accessory after the fact by his subsequent acts . . . [although] one who was only an accessory before the fact may also be an accessory after the fact." (2 LaFave, Substantive Criminal Law, supra, Post-Crime Aid, § 13.6(a), pp. 402-403, fns. omitted.) Many states still follow that rule. ( Jordan v. State (2000) 272 Ga. 395 [ 530 S.E.2d 192, 194]; State v. Hawkins (1992) 326 Md. 270 [ 604 A.2d 489, 494-500]; Staten v. State (Fla. 1988) 519 So.2d 622, 625-626; State v. Leja (Minn.Ct.App. 2003) 660 N.W.2d 459, 465-466; People v. Hartford (1987) 159 Mich.App. 295 [ 406 N.W.2d 276, 278-279]; 2 LaFave, Substantive Criminal Law, supra, Post-Crime Aid, § 13.6(a), pp. 402-403, fns. 25-26.) All of those cases permit the defendant to be charged and tried as both a principal and an accessory if the pretrial evidence supports both charges, but the cases require that the jury be told that the defendant cannot be convicted of both. If through erroneous instructions or jury error the defendant is convicted of both crimes, appellate remedies vary: Some courts vacate the less serious accessory conviction and affirm only the underlying felony conviction, while others permit both convictions to stand but prohibit multiple punishment.
California cases are divided over whether to adopt the rule that a person cannot be convicted or sentenced as both a principal and an accessory to the same felony. Several cases have expressed approval of the rule, though on varying grounds and largely in dicta. ( People v. Prado (1977) 67 Cal.App.3d 267, 271-274 [ 136 Cal.Rptr. 521]; People v. Francis (1982) 129 Cal.App.3d 241 [ 180 Cal.Rptr. 873]; People v. Laskiewicz (1986) 176 Cal.App.3d 1254, 1256 [ 222 Cal.Rptr. 686].) Of those cases, only in Francis did the Court of Appeal actually vacate an accessory conviction on the grounds that, as a matter of law, the defendant could not be convicted as both a principal and an accessory to the same crime. ( People v. Francis, supra, 129 Cal.App.3d at pp. 251-253.) Two other cases, however, have expressed disapproval of that rule, although again largely in dicta. ( People v. Riley, supra, 20 Cal.App.4th at pp. 1813-1817; People v. Mouton, supra, 15 Cal.App.4th at pp. 1321-1325.) Only in Riley did the Court of Appeal actually affirm separate convictions (and imposition of separate concurrent sentences) as both a principal and an accessory to the same crime. ( People v. Riley, supra, 20 Cal.App.4th at pp. 1813-1817.)
We need not attempt to resolve that conflict in the case law, because we hold only that a defendant who is convicted as a principal cannot also be convicted as an accessory solely on the basis of his immediate flight from the crime scene and his subsequent denials of his own involvement, even if that conduct incidentally helps other principals to escape. Our holding is consistent with Riley (the only case that affirms convictions as both a principal and an accessory to the same crime) and Mouton (the other case that expresses disapproval of the common law rule) because the accessory convictions in those cases rested upon the fact that the defendants attempted to dispose of the murder weapons, not upon mere flight and self-exculpatory statements. ( People v. Riley, supra, 20 Cal.App.4th at p. 1815 ["The conviction of accessory is based on defendant's act, the following day, of attempting to dispose of the gun."]; People v. Mouton, supra, 15 Cal.App.4th at p. 1324.) Because Riley and Mouton are distinguishable, we need not express an opinion on whether they were correctly decided.
The defendants in Riley and Mouton aided and abetted murders and fled from the scene with the shooters. Before being caught, each defendant tried to hide or dispose of the murder weapon. Both cases heavily relied on those facts as supporting convictions for both murder and being an accessory thereto. ( People v. Riley, supra, 20 Cal.App.4th at pp. 1815-1817; People v. Mouton, supra, 15 Cal.App.4th at p. 1324.)
Our holding is supported by the following reasoning: Nearly all felons, whether acting alone or in concert with others, intend before, during, and after committing the felony to escape being apprehended and punished for their crimes. Attempting to escape after committing a felony is an inherent part of committing the felony, involving in most cases acting on a previously formed intent. Thus, escaping does not create greater criminal culpability. Indeed, although Penal Code section 32 does not expressly so state, California long has recognized that a principal to a felony cannot become an accessory to that felony by attempting to make his own escape. ( People v. Wallin (1948) 32 Cal.2d 803, 807-808 [ 197 P.2d 734]; People v. Riley, supra, 20 Cal.App.4th at p. 1816; People v. Mouton, supra, 15 Cal.App.4th at p. 1324; People v. Prado, supra, 67 Cal.App.3d at p. 271; People v. Duty (1969) 269 Cal.App.2d 97, 100 [ 74 Cal.Rptr. 606].) None of these cases discusses this concept in detail, and some appear to rely on an unexplained adoption of the common law rule that principals cannot be accessories to their own felonies. In any event, were it not so, every felon who tried to escape apprehension by fleeing from the crime scene thereby would become an accessory to his own felony, a result that would turn nearly every felony into two separate crimes and thus expand accessory liability beyond any reasonable relation to increased criminal culpability or societal harm. Similar reasoning applies to a principal's postcrime denials of his own involvement.
We limit our discussion to postfelony attempts to escape apprehension, prosecution, or conviction that are not themselves criminal acts. Crimes such as carjacking a getaway car, kidnapping, killing, threatening, or assaulting a witness to prevent him from reporting the crime or assisting the felon's apprehension, or fleeing in a high-speed chase that endangers others are separate from the already completed underlying felony from which the principal is fleeing. Committing separate crimes while fleeing from a completed felony demonstrates greater criminal culpability, for which the defendant can incur additional liability should the prosecution choose to charge them. (To the extent that Eduardo's false denial to the deputies could be construed as giving false information to a peace officer in violation of Penal Code section 148, the prosecution chose not to charge that crime.) In contrast, we are discussing noncriminal acts done during flight from the underlying felony that potentially can subject one to criminal liability only as an accessory.
We note that like Penal Code section 32, CALJIC No. 6.40 (Apr. 2006 ed.) states only that one charged with being an accessory must help a "principal" to escape, suggesting that a principal could be an accessory by fleeing from his own felony. In contrast, Judicial Council of California Criminal Jury Instructions (Jan. 2006) CALCRIM No. 400 states that to be an accessory, one must intentionally aid the escape of "another person" one knows was a principal to a felony. For the reasons stated, we agree with CALCRIM No. 400.
If a felon cannot be subjected to additional liability as an accessory for fleeing and denying his guilt, then the same rule should apply to a principal whose flight and denials have the incidental effect of helping a coprincipal to escape. Unlike when third persons who are not principals to a felony intentionally aid the felon's escape after the crime is completed, a principal who flees and thereby incidentally assists another principal in escaping does not thereby expand the circle of criminality beyond the original participants. Moreover, because immediate flight and denials of involvement are such ubiquitous features of criminal conduct, they are too equivocal to constitute separate acts supporting an inference that the fleeing and guilt-denying felon harbored a separate intent to aid the escape of his coprincipals. For a principal to be convicted as an accessory, which requires both separate acts and intent, the principal must do something more than flee and deny his own guilt.
Eduardo and the shooter fled together in the same car immediately after the felony assaults, and Eduardo's false statements to the victims and the deputies a few minutes later involved denials of only his and not the shooter's involvement. The record reveals nothing else that would support an accessory conviction. We therefore reverse the finding that Eduardo was an accessory. On remand, the trial court should dismiss that allegation with prejudice.
II., III. II. The "Principal Armed" Findings on the Assaults Must be Stricken.
See footnote, ante, page 1351.
We agree with the parties that the findings that a principal was armed with a firearm during both assaults with firearms (counts 1 and 2) must be stricken because enhanced punishment when a principal is armed with a firearm cannot be imposed if "the arming is an element of th[e] offense." (Pen. Code, §§ 12022, subd. (a)(1); 3 Witkin Epstein, Cal. Criminal Law, supra, Punishment, §§ 320, p. 414; see People v. McGee (1993) 15 Cal.App.4th 107, 110, 112-116.) We modify the adjudication and dispositional orders to strike the "principal armed" findings on counts 1 and 2 and the related additional confinement time imposed therefore.
III. The Disposition Hearing.
A. The Juvenile Court Erred by Failing to Address Whether Eduardo had Exceptional Educational Needs. Eduardo contends that the court erred by failing to address whether he had exceptional educational needs. He points to the findings in Allen's report suggesting that he had severe learning disabilities negatively affecting his academic performance. Eduardo argues that because the court was required to determine whether the Youth Authority could meet any exceptional educational needs, the determination could have affected the court's decision to commit him to the Youth Authority. We agree. California Rules of Court, rule 1494.5(e) provides: "The court must provide to the [Youth Authority] information regarding the youth's educational needs, including the youth's current individualized education program if one exists. To facilitate this process, the court must ensure that the probation officer communicates with appropriate educational staff." In re Angela M. (2003) 111 Cal.App.4th 1392, 1397-1399 held that where, as here, there were indications in an examining psychologist's report that the minor has learning disorders that may require an individualized educational program under Education Code section 56026, the juvenile court's responsibility to ensure that delinquent wards receive an appropriate education tailored to their individual needs required that the court "determine whether an evaluation of [the minor's] special educational needs should be conducted[.]" ( Id. at p. 1399.) Because the juvenile court failed to consider that issue, In re Angela M. remanded the matter for the juvenile court to make that determination. We conclude that the juvenile court erred in failing to determine whether Eduardo had special educational needs. Allen's report disclosed that Eduardo had learning disabilities that resulted in "severe deficiencies" in his tested academic performance. Those findings put the court on notice that Eduardo may have special educational needs. We reject the Attorney General's argument that Eduardo's barely passing current grades conclusively negate Allen's findings. Such grades hardly rule out the possibility that Eduardo's learning disabilities that resulted in "severe deficiencies" in his academic performance required a special educational program. Until the court examined the issue, it could not rationally determine the nature and extent of Eduardo's learning disorders and whether he required a special program to succeed. Likewise, we reject the Attorney General's argument that, because Education Code section 56026, subdivision (e) excludes from the definition of learning disorder poor school performance based on limited English proficiency, Eduardo's somewhat limited English proficiency conclusively negates Allen's findings. Allen explained that Eduardo's relatively poor performance may be caused by the learning disabilities independent of any English proficiency. Again, until the court examined the issue, it could not rationally resolve this conflict in the reports. We remand the matter for the court to conduct a hearing to determine whether Eduardo has special educational needs, and if so, whether that conclusion affects his suitability for placement in the Youth Authority.
B. The Juvenile Court Erred by Failing to Exercise its Discretion in Calculating Eduardo's Maximum Confinement Time. Section 731, subdivision (b) states: "A minor committed to 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." Before its 2003 amendment (effective January 1, 2004), section 731, subdivision (b) required that in computing the maximum confinement time, the court "determine the upper term of imprisonment for the most serious offense . . . then add any consecutive time imposed for other counts." ( In re Manzy W. (1997) 14 Cal.4th 1199, 1202, fn. 1.) The 2003 amendment added language requiring the court to exercise the same general sentencing discretion that it would in sentencing an adult offender "based upon the facts and circumstances of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court. . . ." ( In re Alex N. (2005) 132 Cal.App.4th 18, 25-27; In re Carlos E. (2005) 127 Cal.App.4th 1529, 15331-543; In re Sean W. (2005) 127 Cal.App.4th 1177, 1181-1189.) This discretion includes decisions whether an upper, middle, or lower confinement term is appropriate, whether subordinate terms should be concurrent or consecutive, and whether section 654 applies to subordinate terms. When the court fails to exercise its discretion in calculating the maximum confinement time, the case should be remanded for it to do so. ( Ibid.) The parties correctly agree that the juvenile court failed to exercise its discretion under section 731, subdivision (b). We reverse that portion of the order setting the maximum confinement time at 13 years and 8 months and remand for the court to hold a new dispositional hearing at which it should exercise its discretion and calculate the maximum confinement time.
C. We Need Not Address Whether the Juvenile Court Erred in Finding that Eduardo's Being an Accessory (Pen. Code, §§ 32, Count 4) Qualified as a Section 707, subdivision (b) Offense Because We Have Reversed Count 4 with Prejudice.
Section 707 defines circumstances under which a juvenile offender may be tried in adult court.
We note, however, that the parties correctly agree that Penal Code section 32 is not a qualifying offense under section 707, subdivision (b).
D. The Court Erred in Calculating Eduardo's Predisposition Custody Credits. Eduardo was in custody from December 11, 2004, through the March 9, 2005, disposition hearing, a period of 89 days. The trial court awarded Eduardo 88 days of predisposition credits. We agree with Eduardo that he is entitled to an additional day of credit. (§§ 726, subd. (c); In re Randy J. (1994) 22 Cal.App.4th 1497, 1500-1504.) The Attorney General disputes neither the calculation nor the principle that Eduardo is entitled to credit for every day of actual custody, but argues that Eduardo waived the claim by not asking for the additional day below, and that the governing case does not mandate that we consider the issue, but leaves it to our discretion. ( People v. Mendez (1999) 19 Cal.4th 1084, 1100-1101.) Particularly because we are remanding the case for the court to hold hearings at which it must exercise discretion, we conclude it is appropriate for us to award Eduardo the additional day of credit and, on remand, order the juvenile court to modify the commitment order accordingly. ( Ibid.)
E. The Commitment Order Must be Corrected. As the parties correctly agree, the Youth Authority Commitment Order incorrectly stated that the juvenile court found Eduardo committed three assaults with firearms rather than two, and omitted the finding that he was an accessory. Whatever disposition the court orders upon remand, that order should show two findings of assault with firearms (counts 1 and 2) and omit any finding of being an accessory (count 4). The amended disposition order also should state that the "principal armed" findings on counts 1 and 2 are stricken for all purposes and that Eduardo is awarded 89 days of predisposition credit.
F. Whether the Juvenile Court Erred in Committing Eduardo to the Youth Authority. Eduardo contends the court abused its discretion in committing him to the Youth Authority. He argues that the court failed to consider relevant factors, and that substantial evidence does not support the order. "The appellate court reviews a commitment decision for abuse of discretion, indulging all reasonable inferences to support the juvenile court's decision. [Citations.] Nonetheless, there must be evidence in the record demonstrating both a probable benefit to the minor by a CYA commitment and the inappropriateness of less restrictive alternatives. [Citations.] A CYA commitment may be considered, however, without previous resort to less restrictive placements. [Citations.]" ( In re Angela M., supra, 111 Cal.App.4th at p. 1396.) Because we have reversed the accessory finding with prejudice, stricken the "principal armed" enhancements, and remanded the case for the court to exercise its discretion and determine whether Eduardo has special educational needs and his maximum confinement time, all of which may effect the appropriateness of a Youth Authority commitment, we vacate the commitment order. On remand, the court should exercise its discretion regarding Eduardo's educational needs and maximum confinement time, reexamine the appropriate placement for Eduardo in light of those decisions, and make a new commitment order. Although on this record the court had discretion to impose either a Youth Authority or camp placement, because the facts on remand will be different, we express no opinion regarding the most appropriate placement, which we leave to the juvenile court to determine.
DISPOSITION
The finding that Eduardo was an accessory (count 4) is reversed with prejudice. The adjudication and dispositional orders are modified to strike the findings that a principal was armed during the commission of counts 1 and 2, and any related potential custody time. The orders further are modified to strike the calculation of Eduardo's maximum confinement time, and to award him 89 rather than 88 days of predisposition custody credit. The matter is remanded for the court to dismiss count 4 and the armed enhancements on counts 1 and 2 with prejudice and conduct a new dispositional hearing at which it should exercise its discretion and determine whether Eduardo has special educational needs and his maximum possible confinement time in light of our holdings. Because the court's exercise of discretion at the new dispositional hearing may affect its decision whether a Youth Authority commitment is appropriate, the Youth Authority commitment order is vacated, and on remand the court should reconsider Eduardo's proper placement and make a new commitment order. In all other respects, the judgment (order of wardship) is affirmed.
Spencer, P. J., and Mallano, J., concurred.