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In re H.D.

June 3, 2009

IN RE H.D., A PERSON COMING UNDER THE JUVENILE COURT LAW.
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
H.D., DEFENDANT AND APPELLANT.



(Santa Cruz County Super. Ct. No. JU21454) Superior Court No. J21454 Trial Judge: Honorable Michael Barton

The opinion of the court was delivered by: McAdams, J.

CERTIFIED FOR PUBLICATION

H.D., a minor, appeals from the dispositional order of the juvenile court committing him to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (now Division of Juvenile Facilities (DJF)), for a maximum term of physical confinement of 12 years eight months, per the court's written orders. Defendant argues that the court's written orders do not correctly reflect the maximum term of confinement orally imposed by the court, and requests that this court reduce the maximum term by two years, to 10 years eight months. The Attorney General acknowledges that there is a discrepancy between the court's oral pronouncement and the written orders, but argues that the resulting ambiguity should be resolved by the trial court on remand. We will reverse the dispositional order and remand to the trial court for further proceedings on disposition.

STATEMENT OF THE CASE

On July 8, 2008, a juvenile delinquency petition (Welf. & Inst. Code § 602)*fn1 was filed in Santa Clara County Superior Court alleging that on June 11, 2008, the minor committed a robbery (count 1) and an aggravated assault (count 2). (Pen. Code, §§ 211-212.5, subd. (c), 245, subd. (a)(1).) The petition further alleged that during the assault, the minor personally inflicted great bodily injury, and that the assault was committed for the benefit of, at the direction of, and in association with, a criminal street gang. (Pen. Code, §§ 12022.7, subd. (a), 186.22, subd. (b)(1)(B).) On July 18, 2008, pursuant to a negotiated disposition, the district attorney amended the petition to allege that the robbery was also committed for the benefit of, at the direction of, and in association with, a criminal street gang, and dismissed the great bodily injury allegation made in connection with the assault charge. The minor then admitted all of the charges and allegations of the petition, and the court transferred the case to Santa Cruz County for disposition. Santa Cruz County accepted the transfer.

On September 2, 2008, the Santa Cruz County Superior Court declared the minor a ward of the court and committed him to the Division of Juvenile Justice (now DJF), orally setting the maximum time of physical confinement at 11 years eight months. The clerk's transcript reflects a maximum time of physical confinement of 12 years eight months.

STATEMENT OF FACTS*fn2

According to the Gilroy police report, on June 11, 2008, at approximately 12:34 p.m., the mother of the victim called the police because her son had been assaulted a few blocks from home. When the police arrived at the S. home, the victim was bleeding from a three to four inch laceration behind his right ear at the back of his head, but he appeared coherent. He told police that a white small pick-up truck pulled up alongside him while he was walking home. One of the people in the truck asked him if he ―banged.‖ The victim, who was wearing a white Red Sox jersey with a red undershirt and a hat with the red letter C on the front, realized that he was being asked to which gang he belonged. He told the person he was not a gang member and tried to walk away. The person then told the victim to give him his jersey. Afraid, the victim complied. He was then hit on the back of the head with a wrench by another person and fell to the ground. Someone reached into his pants pocket and took his cell phone. The suspects fled in the truck.

At this point in the interview, the victim suffered a seizure and was taken to the hospital by ambulance.*fn3

Gilroy police re-interviewed the victim on July 2, 2008. He recalled that at least three people exited the truck to confront him. One person held a large butcher knife in his right hand and stood on the victim's right side. An unarmed person stood directly in front of him, shook his hand, and said ―That's cool.‖ A third person stood to his left and slightly behind him. The person with the knife pointed it at the victim and demanded his jersey. He removed his jersey and was immediately hit on the back of the head by the person who stood behind him and to his left. In addition to the jersey and the cell phone, the robbers took his MP3 player and baseball cap.

Investigation of the crime scene led to a landscaping business whose owner reported his white pickup and his work tools stolen. Confidential information led to a probation search of H.D.'s home, from which the victim's Red Sox jersey and cell phone were recovered. The police re-interviewed H.D. on July 3, 2008. He admitted that on the night of June 11, he went cruising in a truck with his friends, A. and E., and two unidentified people. A. drove, and called out to the victim, ―Do you bang?‖ H.D., E. and the other two approached the victim on foot. The victim was frightened and H.D. shook his hand and said ―that's cool‖ to calm him down. H.D. took the jersey and, while walking back to the truck, heard the victim call for help. He turned and saw E. hit the victim in the head with a hand tool.

A. and E. were interviewed about a week later. A. admitted driving the car, but claimed he did not see the victim get hit. E. denied that he hit the victim; he claimed he saw one of the unidentified suspects arm himself with a wrench, and later he saw blood on the wrench, but he did not see who hit the victim. E. confirmed that H.D. stood directly in front of the victim and demanded the property. H.D., A. and E. are members of CML, Clifford Manor Locos, a Norteño street gang operating mainly in Watsonville.

DISCUSSION

At the conclusion of the contested dispositional hearing, at which defense counsel, the prosecutor and the victim's mother all gave impassioned ...


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