IN RE: LORENZO G.

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Court of Appeal, First District, Division 4, California.

IN RE: LORENZO G., a Minor. PEOPLE of the State of California, Plaintiff and Respondent, v. LORENZO G., Defendant and Appellant.

Civ. 49184.

Decided: July 29, 1981

Nancy W. Green, Monterey (Court-appointed) for defendant and appellant. George Deukmejian, Atty. Gen., Cal., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Thomas A. Brady, Laurence K. Sullivan, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

A juvenile court petition was filed alleging Lorenzo G., a minor, came within the provisions of Welfare and Institutions Code section 6021 by virtue of having committed assault with a deadly weapon (Counts I and II; Pen. Code, § 245, subd. (a)), and having possessed both a concealable firearm (Count III; Pen. Code, § 12021.5) and a loaded firearm in a vehicle in a public place (Count IV; Pen. Code, § 12031, subd. (a)). The petition further alleged in Counts I and II that appellant had personally used a firearm (Pen. Code, § 12022.5) and inflicted great bodily injury on the victims (Pen. Code, § 12022.7). After sustaining the petition, the juvenile court struck the great bodily injury enhancements, declared appellant a ward of the court and committed him to the California Youth Authority (CYA). He appeals.

CYA Commitment

The three-front attack appellant makes on his CYA commitment has a common thrust: that necessary preconditions to the order were not satisfied. Appellant contends the court: (1) failed to make proper findings justifying his removal from the custody of his parent (§ 726); (2) failed to find expressly that commitment would be of probable benefit to him (§ 734); and (3) did not attempt other less restrictive and punitive placements. We find merit in appellant's first contention only.

Section 726 provides no ward shall be removed from a parent's custody unless the juvenile court finds: “(a) That the parent or guardian is incapable of providing or has failed or neglected to provide proper maintenance, training and education for the minor. [¶] (b) That the minor has been tried on probation in such custody and has failed to reform. [¶] (c) That the welfare of the minor requires that his custody be taken from his parent or guardian.”2

At the dispositional hearing, the court declared appellant a ward of the court and removed him from his parent's custody under the authority of section 726, subdivision (b), because he had failed on probation. The finding was incorrect: the record establishes this is appellant's first offense.

This error cannot be considered harmless. Section 726 and rule 1372 (b) unequivocally mandate that a ward shall not be taken from parental custody unless the juvenile court makes one of three possible findings. Application of a harmless error test here would make the legislative mandate meaningless.

Nor would it be proper for this court to make an implied finding that the requirements of subdivision (c) of section 726 were satisfied. Neither the juvenile court nor the probation department considered any ground other than failure on probation for removing the minor from parental custody. Neither the probation report nor the court's comments addresses whether the welfare of the minor required his custody be taken from his parents or whether continued parental custody would be detrimental to him.

What distinguishes this situation from those in which reviewing courts have made implied findings is that here there was an express finding which was erroneous. Here it can be determined precisely why the court committed the minor (i. e., the court believed the minor had failed to reform on probation) and here it can also be ascertained that the court's sole reason for ordering commitment had no factual basis (i. e., the minor had never been on probation). In contrast, in both In re Cindy E. (1978) 83 Cal.App.3d 393, 147 Cal.Rptr. 812, and In re Clyde H. (1979) 92 Cal.App.3d 338, 154 Cal.Rptr. 727, the juvenile court in committing the minor failed to make any finding to support its action despite ample evidentiary support for one. This allowed the reviewing court to say that the omission was harmless because it was not reasonably probable that a finding if made would have been in favor of continued parental custody. In the case at hand the commitment order must be vacated and the matter remanded for a new dispositional hearing because we cannot say that it is reasonably probable the court would have sent the minor to the CYA had the court known he had not only never failed on probation but he had never been on probation.

On remand, the juvenile court may find that appellant should be removed from the physical custody of his parent under section 726, subdivision (c). Because of this possibility we review appellant's other challenges to the present CYA commitment order. Our standard of review is settled: “‘certification of the juvenile to the CYA is within the sound discretion of the committing court, … [Citations.] The decision of the … court may be reversed on appeal only upon a showing that the court abused its discretion in committing the minor to the CYA. [Citations.] A reviewing court must indulge in all reasonable inferences to support the findings of the juvenile court, and such findings will not be disturbed on appeal where there is substantial evidence to support them. [Citation.]”’ (In re Michael R. (1977) 73 Cal.App.3d 327, 332-333, 140 Cal.Rptr. 716; see also, In re Carrie W. (1979) 89 Cal.App.3d 642, 152 Cal.Rptr. 690.)

Appellant argues that the juvenile court failed to make a finding of probable benefit to the minor by CYA commitment (§ 734)3 , but rather made its order solely to benefit society. Although the words “probable benefit to the minor” were not voiced, the gist of the court's remarks is that nothing less than CYA commitment could benefit the minor and such commitment is necessary for the protection of the public. Pronouncement in haec verba is not a sine qua non. Magic words are not necessary. Further, the precise statutory wording appears on the commitment order. Section 734 has been satisfied.

Appellant also argues that because he is a first time offender, the court should not have ordered CYA commitment without first attempting other less restrictive placements. He relies upon In re Aline D. (1975) 14 Cal.3d 557, 121 Cal.Rptr. 816, 536 P.2d 65. There the Supreme Court held it was an abuse of discretion to commit a nondelinquent or marginally delinquent minor to the CYA where the only reason given by the committing court was that no other suitable placement facility was available. Appellant's assertion that Aline D. compels the juvenile court to try a less restrictive placement before commitment to the CYA was rejected in In re John H. (1978) 21 Cal.3d 18, 145 Cal.Rptr. 357, 577 P.2d 177. There the court held that the particular circumstances of a case may call for commitment to the CYA despite the availability of alternative dispositions. (Id., at p. 27, 145 Cal.Rptr. 357, 577 P.2d 177.)

Substantial evidence supports the court's finding of probable benefit from CYA commitment. Both the probation officer and the Monterey County Probation Department Review Panel recommended commitment to the CYA after considering and rejecting alternative dispositions. The juvenile court indicated a less restrictive placement was not a realistic alternative because of the seriousness of appellant's offense, a proper factor to consider in CYA commitment. (In re Richard W. (1979) 91 Cal.App.3d 960, 984, 155 Cal.Rptr. 11; see also, § 202, subd. (b).)

Admission of Evidence

Appellant contends the prosecution failed to establish the chain of custody of five .22-caliber shell casings. His failure to make a specific, timely objection at trial constitutes a waiver of his right to raise the issue on appeal. (Evid. Code, § 353, subd. (a); People v. Fujita (1974) 43 Cal.App.3d 454, 472, 117 Cal.Rptr. 757, cert. den. 421 U.S. 964, 95 S.Ct. 1952, 44 L.Ed.2d 451.4

Competence of Counsel

Appellant next contends he was denied the reasonably competent assistance of an attorney acting as a diligent conscientious advocate (People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859) in that his counsel failed to move to suppress the gun recovered from the car from which shots were fired.

The burden of proving a claim of inadequate trial assistance is on the appellant. He must show that counsel “failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates”, and that “counsel's acts or omissions resulted in the withdrawal of a potentially meritorious defense.” (People v. Pope, supra, 23 Cal.3d at p. 425, 152 Cal.Rptr. 732, 590 P.2d 859. Once an appellant has met this burden, a reviewing court must determine whether counsel's conduct was the result of an informed tactical choice or was a failure to act in a conscientious diligent manner. Where the record sheds no light on counsel's reasons for the challenged conduct, Pope instructs: “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal. [Citations.] Otherwise appellate courts would become engaged ‘in the perilous process of second-guessing.’ [Citation.]” (Id., at p. 426, 152 Cal.Rptr. 732, 590 P.2d 859, fn. omitted.) Where the record does not illuminate the basis for the challenged conduct, the claim of ineffective assistance of counsel is more appropriately made in a petition for writ of habeas corpus. (Id., at p. 426, 152 Cal.Rptr. 732, 590 P.2d 859.)

This case serves as an example of the benefits that could have been derived by use of the petition for writ of habeas corpus. The record is silent on counsel's reasons for the challenged conduct, and we cannot say a satisfactory reason could not exist. In the present context of direct appeal we would be guessing if we tried to evaluate trial counsel's tactics particularly because the record of the search and the seizure of the gun is lacking in factual detail.

Term of Commitment

At the close of the jurisdictional hearing, the juvenile court sustained all counts and allegations in the petition. Thereafter it struck the great bodily injury allegations (Pen. Code, § 12022.7) as to Counts I and II and pronounced the maximum term of confinement as follows: Count I, four years plus two years for personal use of a gun, (Pen. Code, § 12022.5); Count II, the same as Count I and “consecutive” to it; Count III, six months, concurrent; and Count IV, six months, concurrent. The written commitment order unlike the oral pronouncement provides Count II is to be served “concurrent” to Count I.

The Attorney General requests modification of the commitment order to correct several errors made by the juvenile court.

First, the Attorney General characterizes the discrepancy between oral pronouncement of consecutive sentencing and written imposition of concurrent terms as a “clerical” error and urges us to modify the commitment order to show Count II consecutive to Count I. Although this court has the power to correct a “clerical” error (see, People v. Hartsell (1973) 34 Cal.App.3d 8, 13, 109 Cal.Rptr. 627) it cannot be determined whether the discrepancy between “concurrent” and “consecutive” is a “clerical” error or a “judicial” error in the oral pronouncement which the juvenile court subsequently corrected in the written commitment order. Hence, we remand the matter to the juvenile court for the needed correction.5

Next, the Attorney General argues the juvenile court erred in striking the two findings of great bodily injury in setting the maximum term of confinement. The juvenile court struck the allegations in the mistaken belief great bodily injury is “part of the offense and … does not have any particular enhancement [sic] beyond the assault with a deadly weapon and use of a firearm.” Infliction of great bodily injury is not an element of the crime of assault with a deadly weapon. It was error to strike the enhancements on this premise.

More fundamentally, a juvenile court judge in setting the maximum term of confinement for a minor has no power to strike an enhancement which has been found to be true. When a minor is declared a ward of the court and removed from the physical custody of his parent, the court must specify the maximum term of physical confinement. (§§ 726, 731.) “‘Maximum term of imprisonment’ means the longest of the three time periods set forth in paragraph (2) of subdivision (a) of Section 1170 of the Penal Code … plus enhancements which must be proven if pled․” (§ 726, emphasis added.) The straightforward statutory directive is that the “maximum term of imprisonment” includes “enhancements”. No statute confers upon the juvenile court judge the power to strike an enhancement once proven to be true.

If the Legislature wanted to confer the juvenile court with the power to strike enhancements, it could have easily done so by express wording or by incorporation of the comparable provisions under the Determinate Sentencing Act. It did not. Section 726 does not expressly confer a power to strike an enhancement upon a finding of mitigation. Nor, does section 726 incorporate the provisions of the Determinate Sentencing Law which do grant the sentencing judge the power to strike an enhancement under certain circumstances. (See, Pen. Code, § 1170.1, subds., (c) and (g).)

Our conclusion accords with the purpose of juvenile commitment. Unlike sentencing of adults under the Determinate Sentencing Act, juvenile commitment is designed for the purposes of rehabilitation and treatment, not punishment. (In re Eric J. (1979) 25 Cal.3d 522, 531, 159 Cal.Rptr. 317, 601 P.2d 549.) For this reason, the juvenile court law continues to provide for indeterminate terms, with provision for parole as soon as possible. (§ 1176.) When the juvenile court sets a term its determination is not final, because “[i]t is for the Youth Authority, after observation of a minor committed to it, to fix the actual term of his incarceration. That determination, while it cannot exceed the term fixed by the juvenile court, may—and in many cases will—result in fixing an actual term at less than the maximum set forth in the section 726 order.” (In re Edward B. (1979) 94 Cal.App.3d 362, 365, 156 Cal.Rptr. 405; see also, In re Eugene R. (1980) 107 Cal.App.3d 605, 620, 166 Cal.Rptr. 219.) Hence, we hold that when a juvenile court fixes the maximum term of imprisonment for a minor pursuant to section 726 it does not have the power to strike an enhancement found to be true.

The declaration of wardship under section 602 is affirmed. The matter is remanded to the juvenile court for dispositional hearing.

FOOTNOTES

1.  All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

2.  A similar finding is required under California Rules of Court, rule 1372(b), with the added provision that the court must find continued custody by the parent would be detrimental to the minor.

3.  Section 734 provides: “No ward of the juvenile court shall be committed to the Youth Authority unless the judge of the court is fully satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefited by the reformatory educational discipline or other treatment provided by the Youth Authority.”

4.  The rules of evidence apply to juvenile proceedings. (§ 701; Cal. Rules of Court, rule 1355(c).)

5.  If the court does order the sentences to be served consecutively, calculation of the term should follow the Supreme Court's decision in People v. Harvey (1979) 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396. We reject the Attorney General's argument that the Legislature's enactment of Assembly Bill No. 2123 (Stats. 1980, ch. 132) amending Penal Code section 1170.1, effective May 29, 1980, renders Harvey inapplicable to this case. (Accord People v. Matthews (1980) 108 Cal.App.3d 793, 796, 167 Cal.Rptr. 8; People v. Fulton (1980) 109 Cal.App.3d 777, 782-783, 167 Cal.Rptr. 436; People v. Flores (1981) 115 Cal.App.3d 67, 78, 171 Cal.Rptr. 365; People v. Childs (1980) 112 Cal.App.3d 374, 388-390, 169 Cal.Rptr. 183.)

POCHÉ, Associate Justice.

CALDECOTT, P. J., and CHRISTIAN, J., concur.