Appellant A.G. was alleged in a wardship petition to have committed assault with a deadly weapon and attempted murder. Following a contested jurisdictional hearing, the juvenile court found appellant had committed assault with a deadly weapon and attempted voluntary manslaughter.
At the dispositional hearing, the court, relying on In re Joseph M. (2007) 150 Cal.App.4th 889 [58 Cal.Rptr.3d 756] (Joseph M.), concluded it lacked the discretion to set a maximum term of confinement any lower than the minimum sentence that might be imposed on an adult for the same offense and set the maximum term of confinement at the mitigated term.
Appellant contends the evidence was insufficient to support the juvenile court's jurisdictional findings and argues the court should have denied the petition on the defense of necessity. Appellant also contends the juvenile
On September 5, 2007, the San Francisco District Attorney filed a wardship petition under Welfare and Institutions Code section 602, subdivision (a), alleging appellant, then age 16, committed attempted murder (Pen. Code, § 664) and assault with a firearm (Pen. Code, § 245, subd. (a)(2)). The petition also alleged appellant was armed with a firearm, personally used a firearm, and caused great bodily injury. (Pen. Code, §§ 12022, subd. (a)(1), 12022.5, subd. (a), 12022.7, subd. (a).) The petition was dismissed without prejudice in March 2008, but it was refiled after appellant was arrested in connection with another shooting later that year.
At the contested jurisdictional hearing, appellant's mother testified that on the morning of August 31, 2007, appellant phoned her in great distress and said he had been robbed at gunpoint. Appellant's mother and father drove to his aid. When they located him near his school, he was sobbing and screaming. After comforting appellant, the family drove off in search of the robbers. Appellant soon spotted a group of four or five men who he claimed had robbed him. Appellant's father stopped the car, allowing appellant and his mother to get out, and then drove off. According to appellant's mother, she walked away with appellant following her. As they walked, she heard three or four gunshots. Eventually, appellant's aunt picked them up and drove them home.
The victim, Ladaris Greer, testifying at the jurisdictional hearing, denied having robbed appellant. He said he was "[h]anging out" with three friends in the Fillmore District that morning when "[s]omebody pulled up [in a car,] talking about a robbery." The driver of the car got out, appearing to carry a gun in his pants, and threatened them. As Greer attempted to escape on foot into a local park, he was cut off by the car. The driver shot him, hitting him twice. Despite being struck in the knee and hip, Greer resumed running, firing his own gun in the direction of the car as he ran. Eventually, the car ran him down.
Greer's testimony at the hearing conflicted somewhat with his statements to police. San Francisco Police Officer Robert McMillan testified he interviewed Greer in the hospital three days after the shooting. Although Greer was still receiving medical treatment, including morphine for pain, he had been moved from the intensive care unit and was awake and lucid. Greer's account during the interview of the events leading up to his shooting by the passenger was generally consistent with his testimony. Greer told police, however, that after he had been run down by the car, both males got out of the car and walked up to him. The older man said to the younger one, "Shoot him. Shoot the nigger. Shoot him." The younger one kicked Greer and tried to run back to the car, but the older one insisted he shoot Greer. At that point, "the youngster came and he just started shooting, just shooting at anything. He wasn't [unintelligible]. He just started shooting [unintelligible] like, oh, no, `cause he wasn't hitting—he was just hitting my shoulder. So he was just shooting out of fear ...." During the interview, McMillan showed Greer two photo lineups. Greer identified appellant and appellant's father as the persons who shot him. A transcript and recording of the interview were admitted into evidence.
Appellant presented two witnesses from the scene. The first witness saw the encounter from a second floor window, looking only after he heard a car crash and shots fired. He saw three people in the car. The two passengers got out and walked out of his line of sight, then returned to the car, and eventually left the scene on foot. He identified one of the passengers as appellant's father, but he was unable to identify the other. The second witness saw three people, two males and a female, pull up in a car and jump out. The two males ran up the street, and the female drove the car after them. Soon after, he saw the car strike a man, and all three occupants got out. Two of them approached the man on the ground, and one began shooting him. The witness was unable to identify any of the persons involved, but the hairstyles he described were inconsistent with appellant's hairstyle at the time.
Appellant also presented a psychologist who had examined him. The psychologist concluded appellant was "under an intense amount of distress"
The juvenile court found true the allegation appellant committed assault with a firearm, but it amended the attempted murder allegation to attempted voluntary manslaughter committed in the heat of passion. In a detailed discussion of the evidence, the court found that Greer's identification of appellant, although given while under medication, was credible and consistent with other evidence. The court concluded appellant was still under the provocative effect of Greer's armed robbery when he shot him, but it found specific intent to kill on the basis of appellant's shooting from close range.
At the dispositional hearing, defense counsel urged the juvenile court to set a maximum term of Division of Juvenile Justice (DJJ) confinement below the mitigated term for an adult offender who has committed the same offenses. The juvenile court declined, relying on Joseph M., supra, 150 Cal.App.4th 889, and explained that "because of the facts of this case and because of the law which I find to be governing, the Court is not going to sentence to less than the mitigated term." The court accordingly selected the adult mitigated base term of three years for voluntary manslaughter and reduced it by one-half, to 18 months, because the case involved an attempt. It added an additional consecutive year under Penal Code section 12022, subdivision (a)(1) and struck the remaining enhancements. Appellant was committed to DJJ for a period not to exceed 30 months.
Near the end of the dispositional hearing, appellant's counsel asked the court to run appellant's confinement in DJJ concurrently with a sentence imposed for an unspecified adult offense, presumably the late-2008 shooting. The court assented. The dispositional order stated that "Minor is committed to [DJJ] for a period of time not to exceed 30 months." As an added condition, the order also stated: "This sentence is to run concurrent with Superior Court #2400040. Maximum confinement time is 10 years + 5 months." In the court's subsequent order of commitment to DJJ, appellant's "maximum period of confinement" was listed as "10 years, 5 months." The record contains no explanation of the court's apparently conflicting orders on this issue.
Appellant raises two issues with respect to the juvenile court's dispositional order. First, appellant contends the court misunderstood the scope of its discretion in holding it could not lawfully set a maximum term of confinement less than the mitigated term. Second, he challenges the court's setting of a maximum term of confinement in excess of 10 years in the commitment order, despite its conclusion at the dispositional hearing that a maximum term of 30 months was appropriate.
Appellant contends we should consider the scope of the court's discretion in setting a maximum term of confinement because the court might have set a lower maximum had it believed it had the discretion to do so. While we acknowledge this possibility, there is a further reason we must consider the issue. Although neither party raised the issue, the juvenile court, despite its intentions, actually did set a maximum term of confinement less than the minimum adult sentence.
Appellant's offense was actually attempted voluntary manslaughter, not voluntary manslaughter. These are two different offenses. (People v. Lewis
In addition, the juvenile court struck a sentencing enhancement for infliction of great bodily harm under Penal Code section 12022.7, subdivision (a), reasoning that a section 12022.7 enhancement is "not applicable for manslaughter."
As explained in In re Jovan B. (1993) 6 Cal.4th 801 [25 Cal.Rptr.2d 428, 863 P.2d 673] (Jovan B.), prior to 1976 the confinement of both adult and juvenile felons was subject to an indeterminate system "which gave courts or administrative agencies broad discretion to set each individual term of confinement on the basis of various factors, including the circumstances of the offense and the offender's progress toward rehabilitation." (Id. at pp. 816-817.) In that year, the Legislature enacted the determinate sentencing law (DSL) that continues to govern adult sentencing to this day. Under the DSL, for any particular felony the court must select among one of three sentence terms, according to the particular circumstances of the crime, in
In enacting the DSL, the Legislature left unchanged the indeterminate system for juvenile offenders. The same year, however, the Legislature amended the statutes governing juvenile confinement, Welfare and Institutions Code sections 726 and 731, to address a Supreme Court decision holding that equal protection prohibits the confinement of a minor for a period of time longer than the sentence that would be imposed on an adult for an equivalent crime.
In practice, the maximum term of imprisonment rarely determines the actual period of confinement of a ward committed to DJJ. Rather, "[o]nce committed to [DJJ], the minor's actual term is governed by [DJJ] guidelines, within the statutory maximum. `Minors most often do not serve their maximum terms, but the statutory maximum may affect both parole eligibility and the extent to which actual confinement may be prolonged for disciplinary reasons.'" (In re Carlos E. (2005) 127 Cal.App.4th 1529, 1536 [26 Cal.Rptr.3d 551] (Carlos E.).)
Two subsequent decisions have cast doubt on the holding of Joseph M., although both decisions avoided direct disagreement by distinguishing their circumstances. In re H.D. (2009) 174 Cal.App.4th 768 [94 Cal.Rptr.3d 627] (H.D.), approved the setting of a maximum term of confinement that did not correspond to any of the three possible DSL sentences. After reviewing the language and history of the 2003 amendment, the court reasoned, "the wholesale importation of the DSL's triadic sentencing scheme into the juvenile court law would be inconsistent with its indeterminate sentencing structure ..." and concluded, "we find nothing in the legislative history to suggest that the juvenile court's new discretion was intended to be limited to selection of one of the three terms provided by the Penal Code for a particular offense." (H.D., at pp. 776, 777.) Recognizing its holding rested uneasily next to that of Joseph M., the court noted it was not required to render a decision on the specific question decided by Joseph M. because there was no indication the juvenile court contemplated a disposition less than the minimum adult sentence. (H.D., at p. 779.)
Soon after, In re R.O. (2009) 176 Cal.App.4th 1493 [98 Cal.Rptr.3d 738] (R.O.) considered whether the juvenile court has discretion under Welfare and Institutions Code section 731 to set a maximum term of confinement less than the mandatory indeterminate life sentence for first degree murder. In answering affirmatively, the court reasoned straightforwardly, "the plain language of section 731, subdivision (c), which requires the court to consider the `facts and circumstances of the matter,' explicitly vests in the court discretion to select a period of confinement that is less than the minimum mandatory indeterminate sentence." (R.O., at p. 1498.) The court found its interpretation of the statutory language supported by the legislative history, which suggested the 2003 amendment "arose out of a concern for the Youthful Offender Parole Board's `"tendency to increase [the] ... length-of-stay beyond the board's own guidelines, and the board's lack of program expertise."'" (R.O., at p. 1499.) In addition, R.O. noted that its ruling "is consistent with a 150-year tradition of maintaining two separate and distinct criminal justice systems—one for juveniles and one for adults. Describing California's original juvenile justice legislation, our Supreme Court observed: `The purpose in view is not punishment for offenses done, but reformation and training of the child to habits of industry, with a view to his future usefulness when he shall have been reclaimed to society, or shall have attained his majority.' [Citation.]
While we need not consult the legislative history, given our reasoning, we note that nothing in that history suggests a different interpretation. Prior to the enactment of the DSL, the juvenile dispositional scheme was indeterminate. When the Legislature elected to make the adult sentencing system determinate, it left the juvenile scheme alone. The adult sentencing system was injected into the juvenile system not by the Legislature but by our Supreme Court, which held that the maximum term of imprisonment puts a constitutional cap on a juvenile's confinement. Only then did the Legislature amend Welfare and Institutions Code sections 726 and 731 to incorporate the DSL, and it was incorporated only to the extent necessary to reflect the Supreme Court's upper limit ruling. If the 2003 amendment was intended to incorporate the DSL into the juvenile dispositional scheme to any greater degree, one would have expected an express indication in the amendment's language. As noted, however, the 2003 amendment did not refer to the DSL as anything other than an upper limit to the maximum term of physical confinement.
Joseph M.'s ruling on this issue did not derive from the statutory language, nor did it follow a finding that the statutory language was ambiguous on this score. Instead, while recognizing Welfare and Institutions Code section 731 vests discretion in the juvenile court to set the maximum term of confinement, Joseph M. held the lack of a lower limit on this discretion would not comport with the statutory purpose. (Joseph M., supra, 150 Cal.App.4th at p. 895.) In determining this statutory purpose, the court relied only on Welfare and Institutions Code section 726, subdivision (c), which cites the DSL statutes in defining "maximum term of imprisonment," and to a Senate committee report written during the consideration of the 2003 amendment. The report stated: "`"This bill would authorize the court to additionally set maximum terms of physical confinement in the [DJJ] based upon the facts and circumstances of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court. This new provision would provide for court consideration of factors about the offense and the offender's history which would be comparable to those employed now for the triad sentencing of adults, and have those considerations reflected in the [DJJ] confinement term ordered by the court."'" (Joseph M., at p. 896, italics omitted.) Based on these items, Joseph M. concluded: "The legislative intent is clear. The amendment to section 731, subdivision [(c)] was intended to afford the juvenile court the discretion to consider the facts and circumstances of the minor's case in setting a period of physical confinement that was less than the maximum adult term but within the sentencing triad described in Penal Code section 1170, subdivision (a)(3)." (Id. at pp. 896-897.)
Unlike Joseph M., we see no clear legislative intent emerging from either Welfare and Institutions Code section 726, subdivision (c) or the quoted committee report. Section 726, subdivision (c) reiterates what is clear from
As noted above, the juvenile court set 30 months as appellant's maximum term of physical confinement at the dispositional hearing. The dispositional order, while listing this maximum term, also contained a handwritten added condition stating: "This sentence is to run concurrent with Superior Court #2400040. Maximum confinement time is 10 years + 5 months." In an order
There is no explanation in the record for the inconsistency. Our best guess is that appellant's sentence in the criminal case has been clerically transformed, over the course of three written orders, to the maximum term of confinement in this matter, but we decline to speculate as to the juvenile court's intent. In light of the confusion between the court's initial dispositional order and the commitment order and the court's mistaken assumption regarding the scope of its discretion in setting the maximum term of confinement, we believe it appropriate to vacate the dispositional order and remand to allow the juvenile court to reconsider appellant's maximum term of confinement. In doing so, we do not mean to express any opinion as to the appropriate maximum term of confinement for appellant.
The juvenile court's dispositional and commitment orders are vacated. The matter is remanded to the juvenile court with directions to set a maximum period of physical confinement consistent with this decision, to prepare an
Dondero, J., and Banke, J., concurred.