In re Alexander G

Filed 11/29/05 In re Alexander G. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re ALEXANDER G., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. ALEXANDER G., Defendant and Appellant.	E038080 (Super.Ct.No. RIJ102630) O P I N I O N

APPEAL from the Superior Court of Riverside County. Jean P. Leonard, Judge. Reversed with directions.

Dabney B. Finch, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Robert M. Foster, Supervising Deputy Attorney General, for Plaintiff and Respondent.

Defendant and appellant Alexander G. (minor) admitted the allegation that he committed assault with a firearm, in association with a street gang. (Pen. Code, §§ 245, subd. (a)(2) & 186.22, subd. (b)(1)(C).) The juvenile court committed minor to the California Youth Authority (CYA). The court elected to aggregate the period of confinement on multiple petitions and included two previously sustained petitions. Thus, the court set minor’s maximum time of confinement at 14 years 4 months.

On appeal, minor argues that: 1) the juvenile court failed to exercise its statutory discretion, pursuant to Welfare and Institutions Code section 731, subdivision (b),^[1] in setting his maximum term of physical confinement at CYA; 2) the court failed to award him the correct number of predisposition custody credits; and 3) the court should have committed him to CYA for five years, instead of 10 years, on the gang enhancement. The People agree that the matter should be remanded for the juvenile court to exercise its discretion, pursuant to section 731, subdivision (b). As to the two other issues, the People simply state that the lower court can address them on remand as well. We agree and remand.

ANALYSIS

The Matter Should Be Remanded for the Juvenile Court to Exercise its Discretion Pursuant to Section 731, Subdivision (b)

Minor contends that the juvenile court failed to exercise its statutory discretion in setting his maximum term of physical confinement, pursuant to section 731, subdivision (b). The People agree.

Section 731, subdivision (b) provides that: “A minor committed to the Department of the Youth Authority may not be held in physical confinement for a period of time in excess of the maximum period of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court. A minor committed to the Department of the Youth Authority also may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court, which may not exceed the maximum period of adult confinement as determined pursuant to this section.” Thus, section 731, subdivision (b), gives the juvenile court the discretion to set a maximum confinement time that is less than the adult maximum term, based on the facts and circumstances of the case. (In re Sean W. (2005) 127 Cal.App.4th 1177, 1183, 1185.)

The record supports minor’s claim that the juvenile court was not aware that it had this discretion with respect to the maximum term of confinement when it committed minor to CYA. Thus, the matter shall be remanded to allow the court to exercise its discretion pursuant to section 731, subdivision (b).

In addition, the juvenile court should recalculate minor’s predisposition custody credits on remand.

As to minor’s argument that the juvenile court erroneously committed him to CYA for 10 years on the gang enhancement, when it should have only committed him for five years, we note that minor admitted the allegation that he committed the assault in association with a street gang, within the meaning of Penal Code section 186.22, subdivision (b)(1)(C). Penal Code section 186.22, subdivision (b)(1)(C), provides that any person who is convicted of a violent felony committed in association with a street gang shall be punished by an additional term of 10 years. Minor stated that he understood that this admission involved a 10-year custody period. In any case, minor’s maximum period of confinement will be redetermined, at the court’s discretion, by the court on remand.

DISPOSITION

The juvenile court’s order is reversed with directions for the juvenile court to exercise its discretion, pursuant to section 731, subdivision (b), in setting minor’s

maximum term of confinement. The court should also recalculate minor’s predisposition custody credits.

/s/ Ramirez

P. J.

We concur:

/s/ Hollenhorst

J.

/s/ King

J.

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^[1] All further statutory references will be to the Welfare and Institutions Code, unless otherwise indicated.