Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Stanislaus County. Nancy B. Williamsen, Commissioner, Super. Ct. No. 507805.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
At the conclusion of an adjudication hearing held in June 2007, the juvenile court found true allegations contained in a juvenile wardship petition (Welf. & Inst. Code, §§ 602; 777, subd. (a)) filed on May 8, 2006, that on May 5, 2006, appellant Steven C. discharged a firearm at an occupied building or vehicle in violation of Penal Code section 246, the offense was committed for the benefit of a criminal street gang pursuant to Penal Code section 186.22, subdivision (b)(1) and during the commission of the offense, Steven personally used a firearm in violation of Penal Code section 12022.5, subdivision (a), and sustained the petition. Following a disposition hearing held later that same month, the court ordered Steven committed to the Department of Corrections and Rehabilitation, Juvenile Justice (DCRJJ), formerly known as the California Youth Authority (CYA). The court also declared Steven’s maximum period of physical confinement (MPPC) to be 22 years, six months, based on the instant offense and enhancements, as well as offenses adjudicated in prior wardship proceedings.
All further statutory references are to the Welfare and Institutions Code unless otherwise noted.
On appeal, Steven contends (1) the Penal Code section 12022.5, subdivision (a) enhancement must be stricken because the court could not lawfully impose it, (2) remand is required for the juvenile court to exercise its discretion in setting the MPPC because the record does not reveal whether the court was aware of its discretion to declare an MPPC of less than 22 years, six months, and (3) remand is required for the juvenile court to exercise its discretion in setting a MPPC that is not limited by adult sentencing rules. As we shall explain, we agree the Penal Code section 12022.5, subdivision (a) enhancement must be stricken, and the case remanded for the juvenile court to exercise its discretion to set Steven’s MPPC after considering the particular facts and circumstances of his case.
BACKGROUND
Prior to the instant adjudication, delinquency petitions were sustained against Steven in (1) November 2004, for receiving a stolen vehicle (Pen. Code, § 496d), which was declared a felony, and second degree burglary (Pen. Code, § 459), which was declared a misdemeanor; and (2) October 2005, for first degree burglary (Pen. Code, § 459). In January 2006, Steven admitted allegations in a third petition that he violated various terms of probation. On May 5, 2006, a petition was filed which alleged Steven again violated various terms of probation.
At the disposition hearing on the petition in the instant case, the juvenile court stated it had read and considered the dispositional social study, and “considered the recommendation, which is commitment to [DCRJJ].” The probation officer stated in the social study that the instant offense would be the primary one, with a MPPC of seven years for the Penal Code section 246 violation, four years for the gang enhancement, and 10 years for the personal use of a firearm enhancement. The officer further stated he had “considered the following facts and circumstances of the offense: [¶] The minor and co-responsible walked up to the victim’s home at 12:20 a.m. The minor shot five 9 mil[l]imeter rounds into the victim’s home. The gunshots went through the bedroom window, where the victim’s daughter slept, through the front door and into the living room, embedding in the sofa where the victim’s son was sleeping.” The officer listed nine facts in aggravation and no facts in mitigation. The officer listed as secondary offenses the 2005 burglary, with a term of eight months, and the 2004 offenses, with a total term of 10 months, for a “Total Maximum Commitment Time” of 22 years, six months.
Steven’s attorney objected to the DCRJJ recommendation, but stated he had no evidence to present regarding an alternative placement for Steven as Steven was not willing to waive time and wished to proceed. After Steven’s mother made a statement to the court and the prosecutor argued for commitment to DCRJJ, the court removed Steven from his mother’s custody and committed him to the DCRJJ. With respect to his MPPC, the court stated: “The Court identifies the primary offense as that being a felony violation of 246 of the Penal Code which has a maximum commitment time of seven years, with an enhancement under Penal Code section 186.22(b)(1) which has four years, with an enhancement under Penal Code section 12022.5(a) which has a maximum commitment time of ten years. [¶] Secondary offense is a felony violation of Penal Code Section 459(1) on the petition filed September 23, 2005. And, by the way, the primary offense was the petition filed May 8, 2006. As to the secondary offense, as a felony, it has an additional maximum commitment time of eight months. There is another secondary offense from a petition filed October 20, 2004, which was a felony violation of 496(d) of the Penal Code, along with a misdemeanor. That being a 459(2) of the Penal Code. The 496(d) felony has an additional eight months to the maximum commitment time. And the misdemeanor 459 has an additional two months to the maximum commitment time. Total commitment time is 22 years, six months.”
DISCUSSION
The Weapon Use Enhancement
Steven contends the Penal Code section 12022.5, subdivision (a) enhancement for personal use of a firearm must be stricken because use of a firearm is an element of discharge of a firearm at an occupied building, Penal Code section 246. The People concede the enhancement could not be imposed in this case, but contend it should not be stricken. We conclude the enhancement must be stricken.
The wardship petition alleged Steven personally used a firearm in the commission of the offense of shooting at an occupied building in violation of section 12022.5, subdivision (a) which provides: “Except as provided in subdivision (b), any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense.” (Italics added.)
As pertinent here, Penal Code section 246 describes the crime of shooting at an occupied building as follows: “Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house, occupied building, ... is guilty of a felony, and upon conviction shall be punished by imprisonment in the state prison for three, five, or seven years, or by imprisonment in the county jail for a term of not less than six months and not exceeding one year.” (Italics added.)
Because use of a firearm is an element of the Penal Code section 246 offense which the juvenile court found true, the plain language of section 12022.5, subdivision (a) (“unless use of a firearm is an element of the offense”) prohibited imposition of punishment under that subdivision. (See, e.g., People v. Kramer (2002) 29 Cal.4th 720, 723, fn. 2 (Kramer) [noting Pen. Code, § 12022.5, subd. (a) enhancement does not apply if firearm use is an element of the underlying offense, thereby precluding its application to the crime of discharging a firearm at an occupied vehicle].)
The People agree that punishment for the personal use of a firearm enhancement cannot be imposed against Steven, but assert the error may be corrected by striking only the punishment, not the enhancement itself. We disagree. The only authority the People cite is the California Supreme Court’s decision in Kramer, supra,29 Cal.4th 720, which the People acknowledge did not address the issue of whether a Penal Code section 12022.5 enhancement should be stricken or stayed if it cannot be imposed. Since the court did not address the issue in Kramer, however, the decision has no bearing on it. To the contrary, when an enhancement cannot be imposed, it is error to stay the enhancement; it must be stricken. (See, e.g., People v. Haykel (2002) 96 Cal.App.4th 146, 151 [enhancement either imposed or stricken, not stayed]; People v. Jones (1992) 8 Cal.App.4th 756, 758; People v. Ruiz (1992) 3 Cal.App.4th 1251, 1256; see also In re Pritchett (1994) 26 Cal.App.4th 1754, 1758 [instructing superior court to strike firearm-use enhancement that could not properly be imposed]; People v. Jordan (1984) 155 Cal.App.3d 769, 787 [striking armed enhancements as to one crime but not others].)
Here, the Penal Code section 12022.5, subdivision (a) enhancement could not be imposed because use of a firearm is an element of Penal Code section 246. Accordingly, the enhancement must be stricken.
MPPC Determination
Under section 731, when a minor is committed to the DCRJJ, “the maximum term of [the] minor’s confinement must be discretionarily determined by the juvenile court based on the facts and circumstances placing the minor before the court, not to exceed the maximum time prescribed by adult sentencing law.” (In re Carlos E. (2005) 127 Cal.App.4th 1529, 1533 (Carlos E.); accord, In re Jacob J. (2005) 130 Cal.App.4th 429 (Jacob J.); In re Sean W. (2005) 127 Cal.App.4th 1177 (Sean W.) Steven contends the record does not reveal whether the juvenile court was aware of its discretion to declare an MPPC of less than the maximum term that could be imposed on a similarly situated adult, and therefore remand is required to allow the court to exercise this discretion.
It is undisputed that the MPPC of 22 years, six months the juvenile court declared is equal to the maximum term that could be imposed on a similarly situated adult.
Following a January 1, 2004, amendment to section 731, subdivision (b), the juvenile court may no longer mechanically impose the upper MPPC “‘which could be imposed upon an adult convicted of the [same] offense or offenses’” under section 726, subdivision (c) when committing a minor to the DCRJJ. (Carlos E., supra, 127 Cal.App.4th at p. 1537.) The amendment “unmistakably requires the trial court to set a maximum term of physical confinement in [DCRJJ] based upon the facts and circumstances of the matter.” (Id. at p. 1543.) The juvenile court “must set the term in all cases where it is committing a minor to [DCRJJ] and it must exercise its discretion in making the determination of what that term will be.” (Ibid.) When the juvenile court fails to set an MPPC based on the minor’s particular facts and circumstances, the case must be remanded to the juvenile court to make an informed and express determination. (Id. at p. 1543; Jacob J., supra, 130 Cal.App.4th at pp. 438-439; Sean W., supra, 127 Cal.App.4th at pp. 1188-1189.)
In announcing Steven’s disposition committing him to DCRJJ the juvenile court simply recited the MPPC for each offense as listed in the social study. The juvenile court did not, however, state whether it considered exercising or not exercising its statutory authority to impose a shorter MPPC based on Steven’s particular facts and circumstances. The People assert the juvenile court indicated its awareness of this discretion when, in continuing the disposition hearing, it commented that “[g]iven the seriousness of the recommendation, it seems appropriate to have more than a thirty-second discussion or five-minute discussion on what’s really happening here.” The record reveals, however, that the recommendation the court was referring to was the recommendation for commitment to DCRJJ, not the MPPC, as the court announced at the outset of the hearing that “[t]he recommendation is to California Rehabilitation formerly known as CYA ….” Contrary to the People’s assertion, the record lacks any indication the juvenile court exercised its discretion in setting the length of Steven’s MPPC. The People argue remand is not required because the social study contained “facts and circumstances” that support imposition of the maximum term of confinement. While that may be true, it is unclear whether the juvenile court (1) was aware of its discretion to determine a confinement period less than the maximum and (2) exercised its discretion in determining the maximum term of confinement. “Because the record does not demonstrate that the trial court set a maximum term of confinement based on the facts and circumstances of this particular case, we remand the matter to the juvenile court for that determination.” (Jacob J., supra, 130 Cal.App.4th at p. 432, italics added.)
The Sixth District recently disagreed with the decision in Jacob J., supra, 130 Cal.App.4th 429, and suggested an appellate court faced with a silent record at disposition should apply the normal principles of appellate review and presume the juvenile court properly exercised its discretion under section 731, subdivision (b), when stating the maximum period of confinement in its order of commitment to the DCRJJ. (In re Julian R. (2007) 156 Cal.App.4th 1404, 1416.) However, due to the “peculiar circumstances” of the case, which involved a number of errors the juvenile court made in calculating the upper limit of the MPPC, the court remanded the case with discretion to correct errors and set the MPPC based upon the facts and circumstances of the matters that brought the ward under the juvenile court’s jurisdiction. (Id. at pp. 1416-1417.) Even were we to agree with Julian R.’s analysis of Jacob J., the juvenile court’s error in this case of imposing the Penal Code section 12022.5, subdivision (a) enhancement would warrant a remand for resentencing.
The People also assert remand is not required because the juvenile court’s imposition of the aggravated sentence “appears to be the only appropriate sentence choice based on the factors listed by the probation department,” and the court was justified in imposing the maximum time to protect the victim’s family and to give Steven an opportunity for rehabilitation. To the extent the People are contending any juvenile court error in failing to exercise its discretion was harmless, the contention fails, as harmless error analysis does not apply to these types of errors. (In re Ronnie P. (1992) 10 Cal.App.4th 1079, 1091.) When a court “fail[s] to exercise a discretion conferred and compelled by law,” such error “constitute[s] the denial of a fair hearing and deprivation of fundamental procedural rights compelling reversal.” (Ibid.) Accordingly, we will remand the matter to allow the court to exercise its discretion under section 731, subdivision (b). (Carlos E., supra,127 Cal.App.4th at p. 1543; Sean W., supra,127 Cal.App.4th at pp. 1188-1189; Jacob J., supra,130 Cal.App.4th at 438; In re Alex N. (2005) 132 Cal.App.4th 18, 27.)
Steven also asserts we should find that the juvenile court, in determining the MPPC, has discretion to determine a maximum confinement time below the minimum that could be imposed on a similarly situated adult and therefore can choose any term of confinement that it finds proper after considering the facts and circumstances of his case. Steven urges us to reject a decision from Division 5 of the Second District Court of Appeal, In re Joseph M. (2007) 150 Cal.App.4th 889, in which that court held the juvenile court’s “discretion to set the maximum confinement time at less than the lengthiest term an adult would serve for the same offense does not allow for the imposition of a term less than the minimum adult term.” (Id. at p. 896.) Steven argues the case is wrongly decided and essentially asks us to instruct the juvenile court on remand that it is not limited by adult sentencing rules in determining the MPPC. Since we are remanding for the juvenile court to exercise its discretion to determine the MPPC, however, it is premature for us to address this contention. Accordingly, we decline to provide an advisory opinion on an issue that may not become ripe for our consideration. (People v. Slayton (2001) 26 Cal.4th 1076, 1084; People v. Guerra (1984) 37 Cal.3d 385, 429.)
DISPOSITION
The orders sustaining the petition and committing Steven to the Department of Corrections and Rehabilitation, Juvenile Justice, are affirmed. The matter is remanded to the juvenile court with directions to (1) strike the Penal Code section 12022.5, subdivision (a) gun enhancement and (2) calculate the maximum period of physical confinement based on the facts and circumstances before it. The court is directed to prepare an amended commitment order reflecting these changes and forward a certified copy to the Department of Corrections and Rehabilitation, Juvenile Justice.
WE CONCUR: Vartabedian, Acting P.J., Kane, J.