Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. JJD062894, Juliet L. Boccone, Judge.
Carol Foster, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Cornell, J. and Franson, J.
Appellant M.O. appeals from the imposition of a maximum term of confinement (MTC) of two years, three months on grounds the juvenile court erroneously failed to stay a subordinate sentence in accordance with Penal Code section 654. For the reasons discussed below, we affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2009, appellant was on an electronic monitoring program in connection with a prior sustained petition. She removed the electronic monitor from her ankle and discarded it while intoxicated. In March 2010, appellant admitted to misdemeanor allegations of grand theft (ankle transmitter) (§ 487, subd. (a)), removal of an electronic monitor (Welf. & Inst. Code, § 871, subd. (d)), and battery (§ 243.2, subd. (a)). In accordance with the sentencing calculations required by section 1170.1, subdivision (a) and Welfare and Institutions Code section 726, the juvenile court aggregated four-month sentences for each of the three misdemeanors together with appellant’s prior MTC of one year and three months imposed with respect to prior sustained petitions. Appellant’s revised MTC was thus two years, three months, less 177 days credit for time served. The juvenile court committed appellant to the Tulare County Probation Youth Facility (“Youth Facility”), a “boot camp” type program. Appellant did not appeal the order.
Information regarding the circumstances of the offense is gleaned from the related probation report.
In August 2010, appellant admitted to a violation of probation in connection with various disciplinary incidents while in the Youth Facility, and to testing positive for marijuana use. The juvenile court imposed no time for the probation violation offenses, and set the MTC again at two years, three months, less 331 days credit for time served. The court recommitted appellant to the Youth Facility. Appellant filed a timely notice of appeal of the August 2010 disposition.
DISCUSSION
Appellant contends the juvenile court in March 2010 erroneously failed to stay appellant’s sentence for either the grand theft count or the electronic monitor removal count in violation of section 654 and that the juvenile court in August 2010 failed to correct the erroneous March 2010 disposition. Respondent argues appellant is procedurally barred from raising the issue now since she failed to timely raise it after the March 2010 disposition. Even assuming the section 654 claim is cognizable at this stage, we find any such argument to be meritless and affirm the judgment.
Section 654 limits punishment for multiple convictions arising out of either an act or omission, or a course of conduct deemed to be indivisible in time, where the accused had only a single principal objective. (People v. Beamon (1973) 8 Cal.3d 625, 639.) “The initial inquiry in any section 654 application is to ascertain the defendant’s objective and intent. If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.” (Ibid.) “[I]n determining whether Penal Code section 654 applies, the trial court is entitled to make any necessary factual findings not already made by the jury.” (People v. Centers (1999) 73 Cal.App.4th 84, 101.) “The question of whether the defendant held multiple criminal objectives is one of fact for the trial court, and, if supported by any substantial evidence, its finding will be upheld on appeal.” (People v. Herrera (1999) 70 Cal.App.4th 1456, 1466.) Even where a defendant has similar but consecutive objectives, multiple punishments are permitted. (People v. Latimer (1993) 5 Cal.4th 1203, 1211-1212.)
The juvenile court in March 2010 had before it the facts regarding appellant’s conduct, attitude and demeanor near the time of the charged criminal violations and was “properly entrusted with the sentencing-type decisions involved in determining appropriate dispositions and calculating the maximum confinement terms.” (In re David H. (2003) 106 Cal.App.4th 1131, 1136 (David H.).) “The applicability of Penal Code section 654 is properly determined by the juvenile court that adjudicates and sustains a petition against a youth. [Citation.] … While a court adjudicating a subsequent petition must reexamine the ‘entire dispositional picture’ to select an appropriate disposition, it lacks the firsthand view of the facts and circumstances supporting the earlier court’s decisions and may not reevaluate the prior court’s conclusions regarding the truth of prior petitions, the applicability of Penal Code section 654, or the appropriateness of aggregating time on multiple sustained counts in determining the maximum confinement time.” (Id. at p. 1137.)
The juvenile court impliedly found appellant had multiple objectives when it imposed consecutive sentences in March 2010. The juvenile court is presumed to have correctly calculated the MTC in accordance with applicable law. (David H., supra, 106 Cal.App.4th at p. 1135.) In David H., prior juvenile courts had set forth MTCs for the minor that excluded punishment for the second of two counts in two different petitions. A later juvenile court, in connection with a subsequent petition, determined a revised aggregated sentence for the minor that failed to take into account the prior courts’ exclusions. The appellate court found this to be in error, and that later redeterminations of the MTC for a previously sustained petition are unpermitted, stating, “[w]hile the later court has the power to impose a different disposition and aggregate unserved time from prior sustained petitions, it may not recalculate the [MTC] for a previously determined petition.” (Id. at p. 1137.)
Appellant argues David H. is distinguishable because there, the later juvenile court had insufficient records to provide a basis for determining whether the earlier courts erred. Appellant misreads David H. The appellate court noted the later court’s “task was complicated by the absence of any indication in the orders” (David H., supra, 106 Cal.App.4th at p. 1137) the prior juvenile courts had applied section 654 or otherwise chosen not to aggregate time for each separate count, but found “the court below could easily have determined that it could not include separate terms for each count of those petitions.” (Id. at pp. 1137-1138.) The David H. court, in fact, reduced the minor’s MTC to reflect the prior juvenile courts’ exclusions. (Id. at p. 1138.) Here, the record is equally complicated by a lack of expression of the juvenile court’s reasoning in the record, and we must therefore also rely on the prior juvenile court’s sentencing disposition as indication of its decision. The March 2010 court determined the sentences to be consecutive, and therefore section 654 must have been deemed inapplicable.
DISPOSITION
The judgment is affirmed.