*1 Dist., D016868. Fourth Div. Sept. [No. One. 1993.] M., In ANDRES a Person Under Juvenile Coming Court Law. PEOPLE, THE Plaintiff and Respondent, v. M.,
ANDRES Defendant and Appellant. [Opinion certified partial publication.1] Court, 976.1, 1Pursuant to opinion California Rules of rule is certified for publication this II, I, the exception parts with III and V. *3 Counsel Cohen,
Howard C. under appointment the Court of for Defendant Appeal, and Appellant. General,
Daniel Williamson, E. Lungren, Attorney George Chief Assistant General, Schons, General, Attorney Gary W. Assistant Attorney M. Howard Gonzalez, General, Wayne and Gil P. Deputy for Plaintiff Attorneys and Respondent.
Opinion Appellant Andres BENKE, M. from a appeals disposition juve- J. nile court him committing to the (CYA) California Youth Authority for a maximum confinement of 10 years.
Background 18, 1992, On Castro, February before Judge Federico Andres M. admitted allegations in juvenile contained (JDA court petition No. 00158229 No. 75157). he Specifically, admitted two felony counts Vehicle violating 7, Code section 10851 on the dates of October (count I) 1991 February 3, (count II). He also admitted to without a misdemeanors of driving V) (count license on false identification to February giving (count VI). A of other variety charges officer on police admissions, informed Andres were dismissed. Castro Following Judge maximum he had admitted was seven M. overall term for offenses A four months. was set for March 1992. years, hearing disposition 10, 1992, hearing On March Castro continued the Judge disposition March 1992. 19, 1992,
On March at Andres JDA No. M.’s request, disposition 21, 1992, in 75157 was continued Castro order to allow by Judge to April Andres M. to seek an alternative to CYA commitment. 10, 1992, 21, 1992,
On in JDA April prior to No. April disposition *4 75157, another was filed in JDA petition against Andres M. No. 75990. This 30, 1991, that on petition alleged December Andres M. committed a bur- glary (count of an inhabited in dwelling violation of Penal Code section 459 I).2 13,1992,
On Andres April M. before Jones and denied the appeared Judge in burglary charge JDA No. 75990. The readiness in JDA No. hearing was set for April same as the in JDA day hearing No. disposition 75157. 21, 1992, Jones,
On April before an confer- Judge chambers unreported conclusion, ence occurred. At its the court ordered the contested disposition in hearing JDA No. 75157 to trail the adjudication set JDA No. hearing 75990. That adjudication hearing was set for 1992. May 5, 1992, Jones, On May before Judge Andres M. was found to have committed residential and the JDA burglary petition No. 75990 was sus- tained. The disposition hearing was set for 1992. May 18, 1992, On May Judge Jones informed Andres M. his maximum term of confinement was 10 He was committed the CYA.3 years. burglary charged 2The was not known to authorities at the JDA No. 75157 was filed time 12, 1992, It appears that on March appellant’s probation 1992. officer received a telephone call from Diego Detective Scott of the San Department. Police Scott advised the
probation they officer that just positive finger had received a appellant’s identification on prints which burglary linked him to a currently December Scott indicated she was 1991. process referring the matter to the district attorney’s prosecution. office for 3The record reflects this 10-year upon maximum was calculated based JDA No. JDA No. 75177 and 2 previous petitions filed in 1990.
Discussion I-III* IV brief, In his supplemental Andres M. the trial opening argues Code, failed to declare expressly (Veh. 10851) that the auto theft offenses § out, were felonies. As Andres M. such a points required by declaration is Welfare and Institutions Code Vehicle section 702 because violation of Code may be treated as either a Although misdemeanor or a felony. we recognize the trial court failed to perform duty statute, given the presented circumstances this record we do not believe remand any necessary is to correct the error.
Our of this issue disposition governed the fact the record here largely by could not be clearer that neither Andres M. nor his counsel expected misdemeanor treatment of the instant findings. auto theft Andres M. admit- included, instances, ted the truth auto theft which allegations both felonies, allegation thefts were felonies. for this exchange plea the district agreed to dismiss the attorney remaining allegations of the initial drunk petition, including for that felony driving charges. agreed Andres M. also *5 of purposes disposition remaining could be considered charges trial court. While Andres M. was on the auto theft awaiting disposition findings, he confessed to a a participation “straight” residential burglary, Code, (Pen. felony. 459.) § admissions,
In addition to Andres M.’s the trial had Andres M.’s offenses, juvenile record. Prior to the instant he was found to have commit- ted two prior auto thefts for which he almost an entire at the spent year county ranch facility.
As one might expect given Andres M.’s at the history, dispositional hearing only was over dispute whether Andres M. would be sent to the alternative, youth a authority youth (ROP). to Rite In authority Passage ROP, arguing for Andres’s counsel admitted candidly sentencing that any ROP, program would have to provide with public protection. rejecting 10851, the trial “I court stated: note after his release from a he on was camp arrested again a 10851.
“I note that while he was at Y.D.C. program—which is a transitional from our phase camp program—within eight of his release from days 1, ante, *Seefootnote page 1092.
1097 Y.D.C., is when this man committed another auto theft. This he’s young yet in confinement at our camp program. release,
“I after he again note that his was on October 7th for an arrested 30th, 1991, auto He was theft. released to his brother. On December out, He on burglary residential was committed. was still then 3rd, 1992, arrested for another theft. yet again auto
“At some has to be about the of the point, safety someone concerned candor, man, in all public, and in an is a young open setting, predator, this and the a car or house or whatever will the next fancy suits his victim. life,
“Fortunately, we have clearly not lost but the facts these offenses even that.” speak
Given record this we are this so that the unwilling solely remand matter trial court will have the to declare what we opportunity believe obvious: counsel, court, the auto thefts were treated as felonies and the trial and the juvenile, have never entertained are serious notion that any they anything 814, (See other than felonies. (1983) In re 141 Michael S. 818 Cal.App.3d Indeed, 585].) Cal.Rptr. [190 Andres M. does not the record here argue misdemeanor requires sentencing, but the statute only that decla- ration trial court.
We that in recognize interpreting Institutions Code section 702, the have cases held uniformly requires express statute (See unambiguous (1981) declaration from the trial Ricky court. In re H. 30 176, 324, Cal.3d 13]; 190-191 P.2d Cal.Rptr. 636 In re Kenneth H. [178 (1983) 616, 33 Cal.3d 1156]; 620 659 P.2d Cal.Rptr. In Dennis [189 (1980) C. 496]; Cal.App.3d (1980) In re Jeffrey M. Cal.Rptr. [163 337]; (1982) Cal.App.3d 984-985 In re Curt W. Cal.Rptr. [168 However, Cal.App.3d 266].) 185-187 Cal.Rptr. these cases do not [182 *6 directly confront the of question reviewing what a court do when a should violation of section 702 has occurred. Rather the cases interpreting assume, discussion, 702 uniformly a without that confronted reviewing court with a breach of has section 702 no choice to but reverse and remand with the directions that trial make the court declaration the required statute. by the made in Recently assumption the cases interpreting Institutions Code section 702—that a violation of statute the prescribing form of a judicial act the requires rejected by reversal—was squarely In Supreme Court. In re Richard S. (1991) 54 Cal.3d 865-866 [2 (Richard that, Cal.Rptr .2d 819 P.2d S.), court found notwith 843] the Court, rule of the standing California Rules a written of which requires an oral judge, to trial a waiving right superior stipulation “A in a statutory is sufficient to vest referee. jurisdiction stipulation in and way, on the state a to act a requirement may impose duty particular in action taken violation may governmental failure to do so not void the yet is terms of duty. generally expressed of the This distinction [Citations.] or or duty ‘mandatory’ ‘directory.’ “directory” [categorizing] ‘[T]he statutory does not refer to whether a “mandatory” designation particular denotes “obligatory,” simply is or but instead requirement “permissive” or will whether the failure with a will comply particular procedural step to not have action to which invalidating governmental the effect of procedural relates.’ requirement [Citation.] direc- “. . is or determining statutory language mandatory . whether ‘ the intent must be
tory,
express language,
gathered
the absence of
“[i]n
whole,
the nature and
from the terms of the statute construed as a
from
done,
which would
character of the act to be
and from the consequences
act at the
time.
doing
follow the
or failure to do
particular
When the
some
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to subserve
[Citation.]
will
that
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sion
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mandatory
’
(Richard S.,
[citation],
supra, 54 Cal.3d at pp.
. . .”
purpose
[Citations.]”
865-866.)
Earlier,
(1977)
People
McGee
P.2d the court stated: “No one should be at to plant which no way the nonfeasances or misfeasances of officers . . . upon himself, and make them the for a failure on his part concern excuse hand, his own On the other he to be at perform duty. ought always liberty insist that which the law to its officers his given directions has for benefit ’ (Italics added.) shall be observed.” ‘ intended them,
“. . . “There are undoubtedly many statutory requisitions which guide upon of officers the conduct of business devolved limit their render disregard requisitions do not or its exercise of power order, system ineffective. Such are to secure generally regulations designed of which the dispatch proceedings, by disregard rights parties are interested cannot be affected. Provisions of this character not injuriously as . . . But when the usually regarded mandatory. requisitions prescribed citizen, intended disregard are for the of the . . . and protection affected, which they his be and would be rights might generally injuriously will are not but must be followed the acts done directory mandatory. They 962-963, McGee, (People supra, fn. invalid. . . .’” v. 19 Cal.3d at pp. *7 omitted.) McGee,
In is People of Richard S. and v. the light question pertinent a whether the of an requirement express protect declaration designed is 1099 collateral, (See serve In re rights minor’s some administrative purpose. 634, (1990) 60].) In finding H. 220 644 Cal.App.3d Cal.Rptr. Lamonica [270 statute, in the we that juvenile no substantial interest of the note implicated statute, the the by declaration there no beyond simple required require- trial set its an as a treating felony ment the court forth reasons for offense statute, than rather a misdemeanor and we are not aware of rule or case any which sets which in such a deter- making forth factors must be considered (See (1989) mination. In re M. 210 Jacob 1180-1181 Cal.App.3d [258 754].) Indeed by the narrow role of the declaration Cal.Rptr. 702 some Institutions Code section was discussed at length S., supra, In re 141 Michael at must be Cal.App.3d pages 817-818. “[I]t stressed that language unfortunate utilized section various despite forms, decisions, court ‘minute order’ cited court and even superior appellate itself, I, (f) subdivision of article of the California Constitution may, ‘declare’ as it a never court can a actually juvenile proceeding convert one, into a criminal nor transform led the conduct that to a minor’s wardship into either a In ‘felony’ or a ‘misdemeanor.’ such an a minor is not action crime, crime, with tried charged a for a nor of crime. convicted [Citations.] fact, ward, worst, “In since only minor at be a Youth may confined rather Authority than facility, imprisoned, correctly his conduct could not classified as a if ‘felony’ even it had by actually been someone perpetrated subject punishment as adult. the ‘most Consequently, [Citation.] to be important’ purpose served is the required declaration determi- of nation the maximum theoretical period of the minor ward’s potential 817-818, (141 confinement. omitted.) at fns. Cal.App.3d pp. [Citations.]” Here important “most the- purpose”—determination of the maximum when, period oretical of confinement—was entirely satisfied accepting Andres’s plea, the trial court determined the maximum period of confine- thefts, credits, ment on auto including custody would be seven years, four months. When Andres was later found to have committed a residential burglary, treatment felony charges auto theft was confirmed again when the court determined the maximum sentence would be years: 6 years for the burglary and one-third midterm for the auto thefts.
Admittedly the of an requirement express declaration assurance provides trial is aware of the (See In possibility sentencing. misdemeanor 23; re Dennis supra, C. at M. Cal.App.3d p. (1987) Jacob However, Cal.App.3d 418].) Cal.Rptr. [240 we believe it is important to distinguish between a minor’s interest in a trial court having fully interest, consider available sentencing and a if options any, minor’s means which such consideration is articulated the record.
In this and regard Welfare Institutions section 702 to Code is similar re California Rules of rule the Supreme Court discussed Court by Richard InS. in rule 244 of a written finding requirement waiver of the right to trial before a court rather directory mandatory, than superior judge H., Supreme supra, Court our earlier in In re quoted opinion Lamonica “ 634: ‘Where a to a heard a referee has Cal.App.3d party by proceeding in fact or that the referee expressly impliedly agreed may sit as temporary VI, Constitution, to article judge pursuant section of the it is difficult for us to fathom what interest the has the method which legitimate by party oral, written, his agreement is memorialized. Whether consent express referee, if in implied, agrees fact a party proceed before his reasonable expectations have been fulfilled. Thus detailed set forth rule procedure 244 appears to us to serve of the designed judicial collateral interests system. instrument, By a written requiring rule as to whether prevents disputes have in fact consented and the their parties consent. scope [Citation.] .... interest unrelated entirely litigant’s] having interest [This is] [the his heard in dispute competent (In and unbiased tribunal.’ [Citation.]” S., Richard supra, 866.) at Cal.3d p. Code subject Institutions section 702 is to much the same The
analysis. of an requirement statement from the trial express court makes far it easier the trial to determine considered rejected has fact and potential which exists when a crime both leniency permits misde- However, where, here, meanor and felony sentencing. as a given record discloses a tacit understanding by the his juvenile and counsel that misde- little, meanor treatment if is not has appropriate, juvenile any, legitimate interest in nonetheless statement misdemeanor requiring express rejecting sentencing. Thus we believe the declaration Welfare and Insti- required tutions Code like California of Court rule rules was designed to serve administrative principally may therefore purposes treated as than directory rather mandatory. then,
In short although requirements of Welfare Institutions Code case, section 702 were not met this no remand is here necessary because the declaration statute would affect not Andres’s legitimate interests.
V* 1, ante, *See footnote page 1092.
The maximum commitment is ordered modified to reflect that as to counts 4, 1992, I and V the petition, maximum term of confinement is eight months as to In all each. other the judgment is affirmed. respects
Work, J., Acting P. concurred the result. TODD, J., Concurring and Dissenting. I concur as to except Vpart of the majority to which I opinion, dissent for the part reasons expressed People v. (S033940) Michaels review granted August 1993.