Opinion
B194806
4-24-2008
In re ROBERT G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ROBERT G., Defendant and Appellant.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Timothy M. Weiner, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
STATEMENT OF THE CASE
On November 29, 2005, the Los Angeles County District Attorney filed a petition alleging that appellant was a person described by the provisions of Welfare and Institutions Code section 602, in that he committed the offenses of possession of a firearm by a minor (Count One: Pen. Code, § 12101, subd. (a)(1)), vandalism over $400 damage (Count Two: Pen. Code, § 594, subd. (a)), and possession of an aerosol paint container with intent to deface (Count Three: Pen. Code, § 594.1, subd. (e)(1)). On December 19, 2005, appellant admitted the truth of the petition as to Counts One and Two; the crimes were declared to be felonies. The penalty charge range for both offenses is 16 months, 2 or 3 years in state prison. Count Three was dismissed pursuant to an agreement between the parties.
All further statutory references are to the Welfare and Institutions Code.
Appellant was declared a ward of the court pursuant to section 602. He was placed in short term camp community placement for three months. His maximum term of confinement was set at four years and three months. Appellant received 31 days of predisposition credit. He was released from the camp community placement program on March 27, 2006.
On July 27, 2006, an unannounced probation compliance search was conducted at appellants residence. Based on the results of the search, a petition pursuant to section 777, was filed on July 31, 2006. The petition alleged that appellant violated the terms of his probation in that he failed to obey all laws, continued to engage in serious gang activity (Count 1) and, failed to maintain proper attendance at school (Count 2).
A contested hearing was held on August 17, 2006. The juvenile court found Count 1 of the 777 petition to be true and dismissed Count 2. On August 30, 2006, appellant was placed in the camp community placement program for six months with a maximum term of three years and received 142 days of predisposition credit.
Appellant filed a timely notice of appeal on October 27, 2006.
STATEMENT OF FACTS
Officer Deglinnocenti (Deglinnocenti) had been assigned to the Hollywood Station of the Los Angeles Police Department for seven years. He was the Departments expert in "The "Magicians Club," a criminal street gang. Appellant was a documented member of "The Magicians Club" and used the moniker "Blanks." Prior to July 27, 2006, during his routine patrols in the area, the officer had seen appellants gang moniker on various walls.
On July 27, 2006, Deglinnocenti conducted a probation compliance search at appellants residence. Deglinnocenti was looking for any kind of gang-related materials, vandalism materials, weapons, or any other form of contraband. During the search, Deglinnocenti had a conversation with appellant outside of the apartment door. Appellant was given Miranda warnings, elected to speak with the Deglinnocenti and admitted to having done the graffiti.
DISCUSSION
Maximum Term of Confinement
Section 726, subdivision (c), directs the juvenile court to determine the maximum term of imprisonment by choosing the longest period of incarceration applicable to an adult offender without regard to mitigating or aggravating facts. At the time of sentencing on the probation violation, the juvenile court sentenced appellant to a maximum period of confinement of four years and four months, which was then modified to three years. The maximum term of confinement was necessarily based upon the upper term that an adult offender could receive for a violation of one of these sections. (See, Welf. & Inst. Code § 726, subd. (c).)
The United States Supreme Court cases of Cunningham v. California (2007) 549 U.S. 270 (Cunningham) andBlakely v. Washington (2004) 542 U.S. 296 (Blakely) hold that the maximum term of imprisonment for an adult offender, upon conviction of the offense, without a finding of aggravating circumstances by a jury, is the middle term. Appellants opening brief makes the contention that under Cunningham and Blakely, his "maximum term of confinement should have been based upon the maximum term that an adult convicted of the same offense could receive, which is now the middle term, not the upper term." His position would be that calculation of the maximum term of confinement, by reference to the upper terms applicable to adult criminal offenders as required by Welfare and Institutions Code section 726, subdivision (c), is constitutionally impermissible.
After the California Supreme Court decided People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval) we asked for additional briefing by the parties. Appellants supplemental brief argues that "Black II has no application in a juvenile case because Black II interprets Almendarez-Torres [Almendarez-Torres v. United States (1998) 523 U.S. 224], which relates only to prior convictions, and juvenile sustained petitions are not convictions." Appellant also argues that "a maximum term of confinement based on the upper term violated appellants constitutional (Fourteenth Amendment) and statutory ([Wel. & Inst. Code § 726]) right to due process."
Respondents position is that the holdings of Cunningham and Blakely do not apply because they rest on the federal constitutional right to a jury trial under the Sixth Amendment, a right not possessed by juveniles. (McKeiver v. Pennsylvania (1971) 403 U.S. 528; Alfredo A. v. Superior Court (1994) 6 Cal.4th 1212, 1225.) Because all questions in a juvenile case, including questions of fact and the ultimate issue of guilt, are determined by the juvenile court, respondent suggests that Cunningham and Blakely do not control. In Respondents supplemental letter brief, additional contentions are made that, "Black II clearly supports the imposition of a three-year maximum period of confinement based on appellants prior criminal history," and "Sandoval makes clear that the alleged error was harmless."
Appellants contentions regarding the juvenile courts determination of his maximum period of confinement are not well taken. Appellants argument in reliance on Cunningham has been rejected in the decision of Division Six of this appellate district in In re Christian G. (2007) 153 Cal.App.4th 708 (Christian G.) We agree with that result and quote here at length: "In Cunningham the United States Supreme Court held that Californias determinate sentencing law `violates a defendants 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. (Cunningham, supra, 127 S.Ct. at p. 860.) 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. (Ibid.)" (Christian G., supra, 153 Cal.App.4th at pp. 712-713.)
"Thus, appellant argues, if he had been sentenced as an adult offender, the trial court could not have imposed upper terms . . . because the aggravating factors had neither been admitted by him nor found true by a jury. Appellant maintains that, pursuant to sections 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 appellants 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 terms . . . ." (Christian G., supra, 153 Cal.App.4th at pp. 713.)
It is also relevant that the ruling in Cunningham did not expressly or implicitly apply to juvenile delinquency proceedings. 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 fundamental violation identified in Cunningham was that the imposition of an upper term based on aggravating facts found by a judge violated the defendants Sixth Amendment right, via the Fourteenth, to a trial by jury. A minor has no similar right to a jury trial.
There is a further significant difference between Californias previous determinate sentencing law for adults and the sentencing scheme for juveniles. In the former, the presumptive maximum term of imprisonment for convicted adult criminals was the middle term, whereas the maximum term of confinement for juveniles is the upper term. The Christian G. court found that distinction to be significant noting "`"maximum term of imprisonment" . . . "means the longest of the three time periods set forth in paragraph (2) [now paragraph (3)] of subdivision (a) of section 1170 of the Penal Code, 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.] (In re Jacob J. (2005) 130 Cal.App.4th 429, 435.) Thus, a minors theoretical maximum term of physical confinement for an offense may not exceed an adults 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.)
"In exercising its discretion whether to set the minors 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 minors 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 minors actual length of stay, based on the administrative boards decision, remains unchanged. (In re Sean W. (2005) 127 Cal.App.4th 1177, 1188.)" (Christian G., supra, 153 Cal.App.4th at p. 714.)
"`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 courts 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 courts 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.)" (Christian G., supra, 153 Cal.App.4th at p. 715.)
"Thus, in setting a minors 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.)
Appellant makes the additional argument that Black II has no application to juvenile cases because "Black II interprets Almendarez-Torres, which relates only to prior convictions, and juvenile sustained petitions are not convictions." He argues: "The probation violation in the current case was found to be true after a contested hearing. . . . Since this was a juvenile case, nothing was ever found to be true by a jury. Appellant did however admit to two of the allegations found in the November 29, 2005 petition. . . . Appellant submits that the 2005 sustained petition could not be used to bring him with the Almendarez-Torrez exception to the Apprendi rule if he were an adult. Therefore, the 2005 petition can not be used to extend his maximum term of confinement beyond what could be imposed on a similarly situated adult." This issue is one on which federal and state intermediate appellate courts have split (see People v. Grayson (2007) 155 Cal.App.4th 1059, and cases cited therein) and is currently pending before the California Supreme Court. (People v. Nguyen (2007) 152 Cal.App.4th 1205, review granted Oct. 10, 2007, S154847.) Pending a contrary decision by the high court on this issue, however, we will adhere to the existing published opinions of the California intermediate appellate courts unanimously holding that a trial court is entitled to consider a defendants history of juvenile adjudications in imposing the upper term sentence.
Apprendi v. New Jersey (2000) 530 U.S. 466.
We conclude the juvenile court did not err in determining appellants theoretical maximum term of physical confinement based on the upper term for the alleged offense.
Conditions of Probation
Appellant also contend that "the conditions of probation that prohibit association with persons appellants probation officer or parents do not approve of, and prohibit participation in gang activity, are vague and overbroad and violate due process." Respondent agrees that the California Supreme Courts case of In re Sheena K. (2007) 40 Cal.4th 875, 890 concluded that a probation condition forbidding a minors association with "anyone `disapproved of by probation" was vague in that it did not notify the defendant in advance with whom she might not associate. The court agreed that modification of the probation condition "to impose an explicit knowledge requirement [was] necessary to render the condition constitutional. [As examples, the court cited In re] Justin S. [(2001)] 93 Cal.App.4th [811, 816 ] [probation condition modified to forbid the minors association `"with any person known to you to be a gang member"]; People v. Lopez [(1998)] 66 Cal.App.4th [615, 624], fn. 5 [ condition of probation modified to prohibit defendant from associating `" with any person known to defendant to be a gang member"]; People v. Garcia (1993) 19 Cal.App.4th 97, 103 [condition of probation modified to provide that the defendant `is not to associate with persons he knows to be users or sellers of narcotics, felons, or ex-felons].)" (In re Sheena K., supra, 40 Cal.4th at p. 892.
Accordingly, we order that probation condition 15 be modified to read, "Do not associate with anyone known to be disapproved of by parents or probation officer," and probation condition 15A be modified to read, "Do not participate in any type of criminal street gang activity."
DISPOSITION
The juvenile courts abstract of judgment is to be modified to reflect that the maximum term of confinement is modified to be two years and eight months. The conditions of probation are modified as stated above. In all other respects, the judgment is affirmed.
I concur:
FLIER, J.