In re JONATHAN T.

• Decision Date: 29 August 2008
• Docket Number: No. E043805.,E043805.
• Citation: 166 Cal.App.4th 474,82 Cal.Rptr.3d 753
• Court: California Court of Appeals Court of Appeals
• Parties: In re JONATHAN T., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. Jonathan T., Defendant and Appellant.

166 Cal.App.4th 474

82 Cal.Rptr.3d 753

In re JONATHAN T., a Person Coming Under the Juvenile Court Law.

The People, Plaintiff and Respondent,

v.Jonathan T., Defendant and Appellant.

No. E043805.

Court of Appeal, Fourth District, Division 2, California.

Aug. 29, 2008.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Kristine A. Gutierrez and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

McKINSTER, J.

Minor admitted one count of home invasion robbery. (Pen.Code, § 211.) ¹ The juvenile court committed minor to the Department of Juvenile Justice (DJJ) for a maximum confinement time of nine years. Minor contends the juvenile court erred by (1) setting minor's maximum confinement time at nine years, rather than six years; (2) denying minor's request for a 90-day diagnostic evaluation at DJJ; and (3) committing minor to DJJ. We affirm the juvenile court's disposition as modified in this opinion.

FACTS

At the time of the offense, minor was 14 years old and resided in the city of San Bernardino.

On March 26, 2007, at approximately 12:45 p.m., ² the victim awoke to a loud bang on his front door. The victim went to his front door, looked outside, and saw two males jumping over a fence into his backyard. The victim then saw two additional people exiting his laundry room. The victim told the four people to leave his property. One of the intruders, identified as “Camel,” “pulled out a black, semiautomatic pistol and pointed it in the victim's face and told him to ‘Shut the fuck up.’ ” The victim was scared and asked the intruder not to shoot him.

All four intruders pushed the victim toward a sliding door. A second intruder, Brian, punched the victim's face. Minor struck the victim's head and face multiple times. All four intruders then forced their way into the victim's home. Camel then struck the back of the victim's head twice with the handgun. The fourth intruder, Danielle, said, “Let's tie up this fool.” The victim recognized Danielle as a person who had spent several nights at the victim's house with the victim's daughter, and who had been arrested with the victim's daughter on a prior occasion. The victim was tied to a chair in the middle of his living room with shoelaces, a belt, and a cord. The intruders ransacked the victim's house, and Danielle took a bag of what appeared to be clothes and CD's.

After approximately 20 or 30 minutes, all four intruders entered the living room. One intruder asked for the victim's car keys. The victim informed the intruders that his car had mechanical problems, but later the victim heard his vehicle being started and the intruders leaving. The victim struggled to untie himself, and went to a neighbor's house to call 911.

Several hours later, the victim's wife informed police that she saw Danielle with two males walking on a city street. Detectives arrested three of the intruders, including minor. Minor admitted that he pushed the victim into the house. Minor admitted striking the victim's head. Minor stated that the gun was a BB gun and that he had thrown it away. Minor admitted that he and Brian had tied the victim to the chair. Minor admitted taking a sports drink, “some change and a few $1.00 coins” from the victim's house. Minor stated that a jewelry box was also taken from the victim's house, and that Danielle “used a bag to carry property out of the residence.” All of the stolen property was later recovered in a vehicle parked in the front yard of Brian's home.

The victim, who is diabetic, experienced extremely high blood sugar immediately following the incident and was hospitalized for approximately 11 days, due to his right toe becoming swollen and infected. The victim was placed on intravenous antibiotics for six weeks to prevent him from losing his toe.

DISCUSSION

1.MAXIMUM CONFINEMENT TIME

A. Contentions

Minor argues his maximum confinement time should be six years, rather than nine years, because it was not alleged, and he did not admit, that the robbery was committed in concert. The People contend (1) the fact of whether the robbery took place in concert is a sentencing factor that does not need to be pled; and (2) minor was on notice that he was pleading to an in- concert first degree robbery, because the petition listed the maximum confinement time as nine years. We agree with minor's argument.

B. Legal and Factual Background

The maximum confinement time for a first degree robbery that was not committed in concert is six years. (§ 213, subd. (a)(1)(B).) The maximum confinement time for a first degree robbery committed in concert is nine years. (§ 213, subd. (a)(1)(A).)

In the petition filed against minor, it was alleged that “[o]n or about March 26, 2007, in [San Bernardino County], the crime of HOME INVASION ROBBERY, in violation of PENAL CODE Section 211, a FELONY, was committed by [minor], who did unlawfully and by means of force and fear take personal property from the person, possession and immediate presence of [the victim] and said offense was perpetrated in an inhabited dwelling house, trailer coach [or] inhabited portion of a building. If an adult is convicted of this offense the possible punishment would be 3-6-9.”

C. Sentencing Factor

We begin by addressing the People's first contention-that acting in concert is a sentencing factor, which does not need to be alleged in the petition. For reference, we set forth the language of section 213, subdivision (a)(1): “Robbery of the first degree is punishable as follows:

“(A) If the defendant, voluntarily acting in concert with two or more other persons, commits the robbery within an inhabited dwelling house, ... by imprisonment in the state prison for three, six, or nine years.

“(B) In all cases other than that specified in subparagraph (A), by imprisonment in the state prison for three, four, or six years.”

At the outset, we note that the People provide no argument in support of their conclusion that acting in concert is a sentencing factor that does not need to be pled; however, at the end of their conclusion, the People provide one citation to a case that quotes the 1986 legislative history of section 213. ³ The statutory language regarding robberies occurring in concert was added to section 213 in 1994. (Stats.1994, ch. 789, § 1, p. 3909.) Accordingly, we do not examine the 1986 legislative history.

Nonetheless, we construe the People's argument as asserting that the in-concert factor set forth in section 213, subdivision (a)(1)(A), is a sentencing factor as provided for in California Rules of Court, rule 4.421(c), which includes as aggravating sentencing factors “[a]ny other factors statutorily declared to be circumstances in aggravation.” We further construe the People's argument as contending that the nine-year maximum confinement time for a robbery in concert is akin to an upper term sentence, and therefore would not need to be pled and proven beyond a reasonable doubt in juvenile court. (See In re Christian G. (2007) 153 Cal.App.4th 708, 715, 63 Cal.Rptr.3d 215 [the aggravating and mitigating circumstances sentencing scheme applicable to adult offenders is not applicable in juvenile courts].)

In order to determine whether or not, in juvenile court, the prosecution is required to allege that a robbery took place in concert, we must determine whether section 213, subdivision (a)(1)(A), operates as a sentencing factor, a sentence enhancement, or a separate offense. It is unclear from the face of the statute how the Legislature intended for it to operate, because the section sets forth an entirely separate sentencing scheme, i.e., “3-6-9,” which is not typical of enhancements or sentencing factors, which generally add additional time to an established term, rather than creating a new tri-part sentencing scheme. (See People v. Rayford (1994) 9 Cal.4th 1, 9-10, 36 Cal.Rptr.2d 317, 884 P.2d 1369 ( Rayford ) [enhancements usually add additional time to a term of imprisonment or if the enhancement provides for a tri-part sentencing scheme the term “enhancement” is explicitly used in the statutory language].) On the other hand, section 213 does not appear to create a new offense, because the language, “[r]obbery of the first degree is punishable as follows,” causes the statute to read as though it is merely a sentencing scheme for the offense of robbery that is defined in sections 211 and 212.5. (§ 213, subd. (a)(1).)

Our Supreme Court has “set out guidelines for determining whether a particular statutory provision is a substantive offense, or an enhancement or penalty provision.” ( People v. Garcia (1998) 63 Cal.App.4th 820, 827-828, 73 Cal.Rptr.2d 893 ( Garcia ), fn. omitted.) In Rayford, our Supreme Court examined whether section 208, which sets forth the punishment for kidnapping, contained a separate offense in subdivision (d) for kidnapping with the intent to commit a sexual offense. ( Rayford, supra, 9 Cal.4th at p. 8, 36 Cal.Rptr.2d 317, 884 P.2d 1369.) The court concluded section 208, subdivision (d), did set forth a separate offense from simple kidnapping. ( Rayford, at p. 11, 36 Cal.Rptr.2d 317, 884 P.2d 1369.) “In reaching this conclusion, the court looked first to the words of the statute, then to the legislative history of the section, the way the statute was treated in other related code sections, and the fact that the Legislature itself expressly characterized the section as a separate crime. ( [ Rayford, at pp. 8-11, 36 Cal.Rptr.2d 317, 884 P.2d 1369].)” ( Garcia, supra, 63 Cal.App.4th at p. 828, 73 Cal.Rptr.2d 893.) The primary factor in determining whether a statute operates as a sentencing factor, a sentencing enhancement, an element of the offense, or a separate offense is “the legislative intent in...