In re Derrick B. CA4/1

• Court: California Court of Appeal
• Decided: September 24, 2013
• Docket: D063437
• Status: Unpublished

Opinion

Filed 9/24/13 In re Derrick B. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re DERRICK B., a Person Coming Under the Juvenile Court Law. D063437 THE PEOPLE,

Plaintiff and Respondent, (Super. Ct. No. J227832)

v.

DERRICK B.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Richard R.

Monroy, Judge. Affirmed.

John L. Staley, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

A. Natasha Cortina, Ronald Jakob and Kelley Johnson, Deputy Attorneys General, for

Plaintiff and Respondent. Between February 2011 and June 8, 2012, Derrick B. (the Minor) admitted three

petitions in the juvenile courts of Orange and San Diego Counties. When the case was

returned to San Diego County and a hearing held on the Minor's various probation

violations there was a dispute as to whether the Orange County juvenile court had set the

maximum period of confinement for the Minor at five years two months. Whatever the

source of that dispute, the San Diego County juvenile court determined the maximum

confinement for all of the offenses the Minor admitted in the three separate petitions was

eight years 10 months. Although the parties agree the accurate calculation of the

maximum commitment for all the offenses would be eight years 10 months, the Minor

appeals contending the San Diego juvenile court erred because the Orange County

juvenile court had already determined, in its discretion, that the maximum that would be

set for the Minor was five years two months.

Our review of the record demonstrates that the Orange County juvenile court did

not set a five year two month maximum for all the offenses. Rather the record shows the

Orange County judge who made that statement was only referring to the new offenses

alleged and admitted in the third petition. Thus the contention raised in this appeal is

without any factual basis in this record. Accordingly, we will affirm the final order

entered by the San Diego County juvenile court.

FACTS AND PROCEDURAL BACKGROUND

Since the Minor does not challenge the basis of any of the true findings or the

revocations of probation, we will focus this section of the opinion only on the procedural

facts.

2 In December 2010, a petition alleging the Minor committed robbery (Pen. Code,1

§ 211) was filed in the San Diego juvenile court. On January 25, 2011, the Minor

admitted the offense and was advised his maximum commitment would be three years.

On May 24, 2012, the Minor admitted a residential burglary (§§ 459 & 460). The

Minor was advised the maximum commitment for burglary was six years and that the

combined maximum at that time was seven years. The case was then transferred to

Orange County.

On May 30, 2012, Orange County authorities filed a third petition alleging second

degree burglary (§ 459), assault with force likely to produce great bodily injury (§ 245,

subd. (a)(4)) and battery (§ 242).

The Minor thereafter admitted the May 30, 2012 petition. With regard to the third

petition (May 30, 2012), the court advised the Minor that the charges in the third petition

had "an exposure of an additional five years and two months."

In November 2012, the Orange County probation department filed a notice that the

Minor had violated the terms of his probation. In December 2012, the Minor admitted

the alleged violations of probation. The case was then transferred to San Diego County.

In February 2013, the San Diego County juvenile court held a disposition hearing

on the probation violations. The court determined the maximum confinement period for

all of the offenses admitted in the three petitions was eight years 10 months.

1 All further statutory references are to the Penal Code unless otherwise specified. 3 DISCUSSION

The Minor contends the court erred in February 2013, when it declared the

accumulated maximum confinement for the offenses admitted by the Minor in three

separate petitions was eight years 10 months. The Minor does not contend the

calculation is inaccurate given the offenses admitted. Instead, he contends the Orange

County juvenile court in June 2012, already declared the maximum to be five years and

two months. Thus the later order should be found invalid. In the alternative, the Minor

contends the February 2013 order should be reversed because the juvenile court did not

specifically articulate that it was exercising its discretion and recognize it could set a

lower maximum confinement period. Neither contention has any merit.

When a juvenile court sustains a petition alleging criminal offenses and declares

the minor to be a ward of the court, the court must specify the maximum confinement

term. In doing so the court may set the term at the maximum an adult would receive for

the offenses or exercise its discretion and set a lower term. (Welf. & Inst. Code, §§ 726;

Pen. Code, § 1170.1; In re David H. (2003) 106 Cal.App.4th 1131, 1133; In re Adrian R.

(2000) 85 Cal.App.4th 448, 454; In re Deborah C. (1981) 30 Cal.3d 125, 140.)

The court in In re Julian R. (2009) 47 Cal.4th 487, addressed the responsibility of

juvenile courts to set a maximum term of confinement in appropriate cases and also

recognized the authority of the juvenile courts under Welfare and Institutions Code

section 731 to take into account the facts and circumstances of the case in setting a

maximum term. (Julian R., supra, at pp. 495-498.) The court also recognized that

juvenile courts are presumed to correctly apply the law and that there is no statutory duty

4 for the court to articulate on the record that the court is aware of its authority to set a

lower term in light of the facts and circumstances of the case. (Id. at p. 498)

The record in this case reveals the Orange County juvenile court in June 2012, did

not set a maximum term for the aggregate number of offenses found true in all three

petitions. The transcript of that proceeding is very clear that the court was only referring

to the offenses alleged in the third petition. The court specifically advised the Minor that

admitting the offenses alleged in the third petition may subject him to the "additional

exposure" of five years two months. That reading is corroborated by the change of plea

form which the Minor signed that day. That form lists three offenses with the potential

term for each. The total of the term for the three new offenses was five years two

months. Respectfully, there is no other rational reading of the record in this case.

Plainly, the Orange County juvenile court made no attempt to set a maximum

confinement period for the accumulated offenses in all three petitions.

Obviously, there was some confusion when the case was returned to San Diego

County, because defense counsel argued that there had been a prior setting of a maximum

term. The record on review clearly demonstrates there had not been a judicial

determination of a five year two month maximum term prior to the return of the case to

San Diego County. Thus, there was no impediment to the court's decision in February

2013 to accurately set the maximum term at eight years 10 months. Although it is

understandable the parties and the court following transfer from Orange County might

have been confused, we cannot understand how appellate counsel for the Minor could

5 have read the record and believed the June 2012 action set an aggregate maximum. In

any event the record is clear it did not do so.

Finally, the Minor argues the court in February 2013, had a duty to articulate

awareness of the power to consider the facts and circumstances and exercise its discretion

to impose a lower term. We will follow the direction of the court in In re Julian R.,

supra, 47 Cal.4th 487, and presume the court was fully aware of its discretion and

nothing in the record supports a contrary assumption. Thus we will reject the Minor's

arguments to the contrary.

DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

NARES, J.