Reset A A Font size: Print

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

IN RE: JAMES A., A Person Coming Under the Juvenile Court Law. The PEOPLE of the State of California, Plaintiff and Respondent, v. JAMES A., Defendant and Appellant.

Cr. 39167.

Decided: December 09, 1981

Quin Denvir, State Public Defender, and Diane M. L. Tan, Deputy State Public Defender, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Criminal Division, S. Clark Moore, Asst. Atty. Gen., Shunji Asari and Alice E. Altoon, Deputy Attys. Gen., for plaintiff and respondent.

James A. was found to be a minor violating laws defining crime (Welf. & Inst.Code, § 602) in that with respect to one vehicle he did both (1) take it without the consent of its owner (Veh.Code, § 10851, par. I) and (2) steal it (Pen.Code, § 487, subd. (3), par. II).  He appeals from the order committing him to camp for a period not to exceed three years, contending:  “The juvenile court erred by finding appellant in violation of both grand theft and driving or taking a truck without the owners's consent.”

There is no dispute as to the evidence.   It established that on July 26, 1980, appellant took and drove Thomas Schoeffling's 1975 Chevrolet camper truck without Schoeffling's consent.   When Schoeffling recovered the truck a week later, it had been “stripped,” the camper shell had been removed, equipment was missing, and the wiring behind the dash had been cut away.   In the interval between the taking and recovery of the truck, Brent Wells saw appellant in it, and noticed that there was no camper shell on it.   Appellant told Wells that someone had paid him to steal the truck.

The juvenile court sustained both paragraph one (violation of Veh.Code, § 10851) and paragraph two (violation of Pen.Code, § 487, subd. (3)) of the petition, noting that the upper term for each was three years.   However, the court and counsel for the parties also agreed, expressly and correctly, that since the two offenses were but “duplications” (see People v. Pater (1968) 267 Cal.App.2d 921, 926–927, 73 Cal.Rptr. 823), only one of them should be considered in determining the theoretical maximum period of appellant's potential confinement.1  This was then done with reference to paragraph one alone, thereby rendering paragraph two a pragmatic nullity.

Quite apart from the fact that appellant, through his trial counsel, explicitly, and appropriately, agreed to the action he would now challenge, his contention is frivolous.   It stems, of course, from the regrettable practice of inaccurately referring (1) to the sustaining of the various paragraphs of petitions filed in a juvenile proceeding as “convictions,” as appellant does in his brief here, and (2) to the court's dispositional order as a “sentence,” or worse “sentences,” as was done by the court below in this instance.

 A juvenile is never charged with, nor convicted of, any crime.   The establishment of the conditions of his wardship does not constitute a “sentence.”   So long as the abstract maximum periods of confinement permissible by reason of his various acts of misconduct are not aggregated (see In re Michael B. (1980) 28 Cal.3d 548, 556, fn. 3, 169 Cal.Rptr. 723, 620 P.2d 173), the considerations underlying Penal Code section 654 are irrelevant.

 Our appellant's misbehavior would have constituted a violation of both Penal Code section 487 and Vehicle Code section 10851 if performed by an adult, although such conduct by an adult would have permitted of but one “conviction” and one “punishment.”   Appellant, of course, does not contend to the contrary and as a consequence of his conduct he was made a ward of the court, a unitary condition.   Furthermore, he was ordered placed in the community camp program only for his violation of the less onerous sounding Vehicle Code section 10851 and the outside limit of any imaginable future confinement to which he may be subjected was correctly set at “three years.”   In sum, we find nothing in the present record either to “strike,” “stay” or “suspend.”

The order under review is affirmed.


1.   “THE COURT:  Fine.   And this was two counts that were sustained as felonies.   Each carry three years.  [¶] MR. McVAY [deputy public defender]:  Your Honor, in that regard, I think I mentioned it last time.   Count II is a duplication of count I, or vice versa, and it would appear to me that one of them either be stricken or at the very least there should be no sentence.  [¶] THE COURT:  Well, you would agree with that?  [¶] MRS. BLODGETT [deputy district attorney]:  Certainly.  [¶] THE COURT:  Well, you didn't let the court finish, Mr. McVay.   You anticipated what the court was going to say.  [¶] They are each three years;  so the court will sentence on count I and not sentence at this time as to count II.”

BEACH, Associate Justice.

ROTH, P. J., and COMPTON, J., concur.