Ct.App. 6 H031292. Monterey County Super. Ct. No. J38483. Judge Stephen A. Sillman.
The opinion of the court was delivered by: Kennard, J.
When a minor within the jurisdiction of the juvenile court is committed to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice, the juvenile court is required to indicate the maximum period of physical confinement. (Welf. & Inst. Code, § 726, subd. (c).)*fn1 In setting that confinement period, which may be less than, but not more than, the prison sentence that could be imposed on an adult convicted of the same crime, the court must consider the "facts and circumstances" of the crime. (§ 731, subd. (c).)
This case presents two issues: First, must the juvenile court orally pronounce the juvenile's maximum period of confinement, or will a written statement of that period suffice? Our answer: The latter is sufficient. Second, must the record show that the court complied with section 731, subdivision (c), by considering imposition of a confinement period - shorter than the adult maximum - that might be justified by the "facts and circumstances" of the crime or crimes committed by the juvenile? Our answer: On a silent record, as is the case here, we will presume that the juvenile court performed its statutory duty.
The probation report describes the incident leading to Julian R.'s wardship as follows: On June 11, 2006, police officers, responding to a reported carjacking in the parking lot of a fast food restaurant in the City of Salinas, in Monterey County, found two male victims who said they had been assaulted by the occupants of another car. The victims' car had been taken, and was later found abandoned nearby.
An hour later, during a routine traffic stop, police officers detained a car near the fast food restaurant. In the car were 17-year-old Julian and five other persons, some of whom fit the description of the carjackers. Radio speakers from, and keys to, the victims' stolen car were found inside the detained car. The officers brought the six suspects to the restaurant's parking lot. There, the suspects were shown to witnesses of the carjacking. Julian was identified as the one who had kicked and punched both victims.
On July 20, 2006, in return for dismissal of the carjacking count, Julian admitted committing two counts of assault against separate victims by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)); each count was subject to a criminal street gang sentence enhancement (Pen. Code, § 186.22, subd. (b)(1)).
By a dispositional order of August 7, 2006, the juvenile court declared Julian to be a ward of the court under section 602 and, rejecting the probation officer's recommendation for a commitment to the Division of Juvenile Justice (formerly the California Youth Authority), the court ordered Julian committed to the Monterey Youth Center. On February 5, 2007, after Julian tested positive for cocaine use in violation of his probation, he was expelled from the Monterey Youth Center. This led to the filing of a supplemental petition on February 7, 2007, alleging two probation violations - cocaine use and failure to satisfactorily complete the youth center program. The next day, at a detention hearing on that supplemental petition, Julian admitted the probation violations.
On February 26, 2007, at a dispositional hearing on the supplemental petition, the juvenile court concluded that Julian was "too far entrenched in gangs and the criminal lifestyle to be rehabilitated" through locally available services. It then committed him to the Division of Juvenile Justice. The court did not state the maximum confinement that Julian would face, did not mention the maximum term that an adult would face for the same offenses, and did not indicate its consideration of the crimes' facts and circumstances that might justify a shorter confinement. But on a preprinted form (Judicial Council Forms, form JV-665, as rev. Jan. 1, 2007) the court checked a box beside this printed text: "The child is committed to the Department of Corrections and Rehabilitation, Division of Juvenile Justice, and form JV-732, Commitment to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice, will be completed and transmitted."
Two days later, on February 28, 2007, the juvenile court signed the required (Cal. Rules of Court, rule 5.805) preprinted commitment form (Judicial Council Forms, form JV-732, as rev. Jan. 1, 2006). As "sustained petitions" the form listed the two felony assault offenses (Pen. Code, § 245, subd. (a)(1)) plus applicable gang enhancements, resulting in a maximum confinement period of ten years. To that were added two months for a prior offense of fighting in a public place (Pen. Code, § 415, subd. (1)), a misdemeanor. Following the form's printed text "maximum period of confinement," the court inserted "10 years 2 months, which the probation officer had indicated was the maximum period of confinement for an adult convicted of the same offenses.
Julian appealed, asserting that the juvenile court erred in its disposition. He contended: (1) The court should have orally pronounced the maximum period of confinement he would face, and (2) the court should have determined whether the facts and circumstances of his crimes warranted a maximum confinement period shorter than the adult maximum prison term for the same offenses. The Court of Appeal rejected these claims. It held that the juvenile court was not required to orally pronounce the maximum period of confinement that Julian would face. It also held that, although the record did not expressly indicate the juvenile court was aware of its discretionary power to impose a maximum confinement period shorter than the adult maximum, its awareness of that power must be presumed, thus compelling the conclusion that the juvenile court had considered a lesser confinement period. This conclusion was contrary to the one reached by the Court of Appeal in In re Jacob J. (2005) 130 Cal.App.4th 429, which had held that if the record was silent as to a juvenile court's consideration of a facts and circumstances confinement period, the reviewing court would presume that the juvenile court had failed to consider such a period.
In this case, the Attorney General advised the Court of Appeal that Julian's prior misdemeanor charge of fighting in a public place had been dismissed, reducing the maximum adult term for his offenses to 10 years, and that the principal and subordinate terms for the current two assault offenses had been incorrectly stated on the commitment form. Although a maximum adult term of 10 years for the two assaults was correct, the Attorney General noted that Julian's 10-year confinement period had been incorrectly apportioned between the principal and the subordinate terms for those assaults, each carrying a gang enhancement; correctly calculated, the adult maximum term of imprisonment for the first assault and gang enhancement was eight years, and the maximum term of imprisonment for the second assault and gang enhancement was two years. Given those errors, the Court of Appeal remanded the matter to the juvenile court so it could complete an amended commitment form.
Recognizing the conflict between this case and In re Jacob. J., supra, 130 Cal.App.4th 429 concerning the sufficiency of a juvenile court record that is silent as to the appropriate confinement period based on the facts and ...