Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super.Ct.No. J178867, Douglas N. Gericke, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Eric A. Swenson, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King, J.
In 2001, minor admitted an allegation that he committed a forcible lewd act upon a child. (Count 1—Pen. Code, § 288, subd. (b)(1).) The parties stipulated to a commitment to the California Youth Authority (CYA). The juvenile court determined minor’s theoretical maximum term of physical confinement as the aggravated term of eight years. In March 2007, minor filed a motion to resentence, contending that the United States Supreme Court’s decision in Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham) prohibits juvenile courts from determining a minor’s maximum period of confinement as that of the upper term without having found aggravating factors true beyond a reasonable doubt. The court denied the motion. On appeal, minor reiterates his contention below. We conclude that Cunningham does not apply to juvenile delinquency proceedings and, therefore, affirm the judgment.
In an immense reorganization of California corrections in 2005, CYA became the Juvenile Justice Division within the Department of Corrections and Rehabilitation. (Gov. Code, §§ 12838, 12838.3.) For the sake of clarity, we will refer to the Juvenile Justice Division as CYA.
“[W]e use the phrase, ‘theoretical maximum term of physical confinement’ because the ‘actual term’ is indeterminate and is governed by certain guidelines. (In re Jovan B. (1993) 6 Cal.4th 801, 811, 816-818.) In theory, there is no statutory minimum time of physical confinement before a juvenile offender can be released.” (In re Christian G. (2007) 153 Cal.App.4th 708, 712, fn. 1 (Christian G.).)
I. FACTS AND PROCEDURAL BACKGROUND
Victims, then aged 8 and 10, stated that on several occasions then 16-year-old minor forced them into an abandoned house, threw them to the ground, asked them if they wanted to have sex, jumped onto one of them doing “homosexual stuff,” and ejaculated in front of them. He also committed the aforementioned acts while the victims were confined to minor’s bedroom. Twice minor bit the buttocks and grabbed the penis of one of the victims through that victim’s clothing.
The People alleged minor had committed a forcible, lewd act upon a child (count 1—Pen. Code, § 288, subd. (b)(1)) and an attempted lewd act upon a child (Pen. Code, §§ 664, 288, subd. (a)). Minor admitted the allegation in count 1 and the court dismissed the allegation in count 2 upon the People’s motion. The People agreed not to file any additional charges.
II. DISCUSSION
A. Cunningham Does Not Apply to Juvenile Delinquency Proceedings
All statutory references are to the Welfare and Institutions Code unless otherwise indicated
Minor contends the trial court should have determined his maximum period of confinement as the midterm of six years, not the upper term of eight years. He relies on Cunningham in an argument that has already been rejected in the recent decision of Christian G., supra, 153 Cal.App.4th 708 with which we agree and quote here at length: “In Cunningham the United States Supreme Court held that California’s determinate sentencing law ‘violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments’ insofar as it permits a court to impose an upper term sentence based on facts found by the court and established only by a preponderance of the evidence. [Citation.] Except for a prior conviction, aggravating factors must be either admitted by the defendant or found by a jury and proved beyond a reasonable doubt. [Citation.]
“Thus, [minor] argues, if he had been sentenced as an adult offender, the trial court could not have imposed [the] upper term[] . . . because the aggravating factors had neither been admitted by him nor found true by a jury. [Minor] maintains that, pursuant to section 731, subdivision (b), ‘the maximum term for a juvenile court commitment is controlled by what the maximum term would be on the same offense in adult court.’ Since ‘the maximum available to an adult convicted of [minor’s] offense would be limited under Cunningham to the middle term, the juvenile court erred in exceeding this maximum. Therefore, the maximum period of confinement must be reduced based upon the use of the middle term[] . . . .’” (Christian G., supra, 153 Cal.App.4th at pp. 712-713.)
Initially, we note that neither the ruling in Cunningham nor that in any of its forebears apply expressly or implicitly to juvenile delinquency proceedings. Indeed, all of those cases concerned adult criminal convictions.
Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435]; Ring v. Arizona (2002) 536 U.S. 584 [122 S.Ct. 2428, 153 L.Ed.2d 556]; Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 423]; United States v. Booker (2005) 543 U.S. 220 [125 S.Ct. 738, 160 L.Ed.2d 621]; Cunningham, supra, 127 S.Ct. 856.
Likewise, as Christian G. affirmed, “[t]here is no right to jury trial in juvenile proceedings. (In re Javier A. (1984) 159 Cal.App.3d 913, 949 et seq., collecting and analyzing the California Supreme Court cases which so held.) [Minor] cannot, at the same time, claim both the rights attendant to adult sentencing proceedings (Cunningham) while reaping the fruits attendant to juvenile proceedings (the opportunity to be released on parole years before an adult would be released).” (Christian G., supra, 153 Cal.App.4th at p. 713.) Indeed, the cornerstone foundation for the decision in Cunningham was that imposition of an upper term based on aggravating facts found by a judge violated the defendant’s Sixth Amendment right, via the Fourteenth, to a trial by jury. (Cunningham, supra, at p. 860.) Here, minor had no right to a jury trial.
Additionally, unlike California’s previous determinate sentencing law in which the presumptive maximum term of imprisonment for convicted adult criminals was the middle term (Cunningham, supra, at p. 868), the maximum term of confinement for juveniles is the upper term. Citing In re Jacob J. (2005) 130 Cal.App.4th 429, 435, Christian G. explains that “maximum term of imprisonment,” as used in sections 726 and 731, means the longest of the three time periods set forth in Penal Code section 1170, subdivision (a)(3), but “‘“without the need to follow the provisions of subdivision (b) of Section 1170 of the Penal Code [middle term imposed absent mitigating or aggravating circumstances] . . . .”’ [Citation.] Thus, a minor’s theoretical maximum term of physical confinement for an offense may not exceed an adult’s maximum term of imprisonment for the same offense based on imposition of the upper term.” (Christian G., supra, 153 Cal.App.4th at p. 714.)
Moreover, in determining a minor’s theoretical maximum term of confinement, the juvenile court is not limited to evaluating the mitigating and aggravating factors applicable in an adult criminal context. Rather, juvenile delinquency courts have been given much broader authority and discretion in the factors they may consider in determining an appropriate period of potential confinement: “The second sentence of section 731, subdivision (b), was added in 2003 by Senate Bill No. 459 (2003-2004 Reg. Sess.). (Stats. 2003, ch. 4, § 1.) It was intended ‘to give the juvenile court discretion to impose less than the adult maximum term of imprisonment when committing a minor to CYA and to require the court to set that term of confinement based on the facts and circumstances of each case. [Citation.]’ (In re Jacob J., supra, 130 Cal.App.4th at p. 437.) ‘[W]here, as here, the juvenile court sets the maximum term of physical confinement at CYA at the maximum term of an adult confinement, the record must show the court did so after considering the particular facts and circumstances of the matter before it.’ (Id. at p. 438.)
“In exercising its discretion whether to set the minor’s theoretical maximum term of physical confinement at less than the maximum term of imprisonment, the juvenile court is not required to follow the procedures applicable to adult sentencing. The second sentence of section 731, subdivision (b), ‘has not inserted the adult determinate sentencing scheme into the juvenile indeterminate disposition scheme. . . . Senate Bill No. 459 created the Youth Authority Board [now the Board of Parole Hearings], which decides the actual length of a minor’s confinement at CYA. [Citation.] While [the second sentence of] section 731, subdivision (b), does allow the court to set an earlier outside limit to the indeterminate period of confinement, based on the facts and circumstances of the case, the basic system for determining a minor’s actual length of stay, based on the administrative board’s decision, remains unchanged.’ (In re Sean W. (2005) 127 Cal.App.4th 1177, 1188.)” (Christian G., supra, 153 Cal.App.4th at p. 714.)
Finally, unlike the adult criminal determinate sentencing law, the sentencing scheme in juvenile proceedings is indeterminate. Thus, Cunningham’s other foundational basis, that a determinate sentencing scheme violates the Sixth Amendment when factors justifying deviation from the maximum term are determined by a judge, is simply not applicable to juvenile delinquency proceedings. “‘There is nothing in the legislation or its history to suggest the Legislature sought to make sweeping changes in the commitment of a minor to CYA from an indeterminate term to a determinate term, nor is there any provision that the Legislature is restricting the juvenile court to the adult sentencing triad. Proof the juvenile court’s decision is not tied directly to the adult system is found in the language utilized; the juvenile court is to consider the facts and circumstances of the matter, rather than being restricted solely to the aggravating or mitigating circumstance scheme for adults. The juvenile court’s determination must be tied to the purposes of the juvenile system, which include the protection of the public as well as the rehabilitation of the minor.’ (In re Carlos E. (2005) 127 Cal.App.4th 1529, 1542.)
“Thus, in setting a minor’s theoretical maximum term of physical confinement based on the facts and circumstances of the case, section 731, subdivision (b), does not compel a juvenile court to adhere to the Cunningham restrictions or the aggravating/mitigating circumstances scheme applicable to the sentencing of adult felons. A contrary interpretation of the statute would ignore the distinction between the determinate sentencing law, which provides for fixed terms designed to punish, and the juvenile justice system, which provides for indeterminate terms designed to rehabilitate. ‘Any parallel between the adult felon and the juvenile delinquent who have violated the same penal statute ends at the point of beginning of two separate, distinct punishment/rehabilitation statutory schemes. The commitment of the youth, processed through the juvenile court, to the Youth Authority for the maximum period under Welfare and Institutions Code section 731 is in no way the equivalent of the commitment of the adult to prison for the same crime for the upper term based upon aggravation factors. [¶] When the juvenile is committed for the maximum period, he is in fact being committed for an indeterminate period. The adult sent to prison for the upper “term prescribed” will be confined for that specific period less any behavior-performance credits. [Citation.] At the heart of the determinate sentence law is the concept of a fixed term. [¶] In contrast, to the juvenile, the “maximum” term is simply the outside time limit for a statutory program aimed directly at rehabilitation.’ (In re Robert D. (1979) 95 Cal.App.3d 767, 774-775.)” (Christian G., supra, 153 Cal.App.4th at p. 715.)
The foregoing answers defendant’s contention that the theoretical maximum term of physical confinement for a juvenile must be based on the due process right of proof beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358, 363-364 [90 S.Ct. 1068, 25 L.Ed.2d 368].) Unlike for an adult, the juvenile court need not make any factual findings in imposing the upper term. (§ 726, subd. (c); In re Jesse F. (1982) 137 Cal.App.3d 164, 168-170; In re Ismael A. (1989) 207 Cal.App.3d 911, 914-921.) Nor does a juvenile have a Sixth Amendment right to a jury trial. Section 726 expressly defines the maximum term of commitment as the upper term without requiring any factfinding or the consideration of a presumptive midterm.
Nor did the juvenile court fail to exercise its statutory discretion to impose a lower term. The juvenile court made a detailed statement about why it committed defendant to CYA for the maximum term. It indicated it had read the report and recommendation of the probation officer’s report. It noted that minor would get the specialized treatment he needed during his confinement at CYA. It recognized the necessity of segregating minor from any potential victims. Finally, it noted that minor’s conduct in juvenile hall continued to involve sexually inappropriate behavior. In detailing its reasons, it met its obligation to set the maximum term of adult confinement after considering the particular facts and circumstances of the matter before it. (In re Jacob J., supra, 130 Cal.App.4th at pp. 437-438.)
III. DISPOSITION
Accordingly, the trial court did not err in determining minor’s theoretical maximum term of physical confinement to be eight years. We affirm the judgment.
We concur: Ramirez, J., Richli, J.