IN RE: PEDRO T. (1993)

OPINION

These consolidated matters raise a simple issue which appears to be one of first impression.   After a juvenile court has fixed the maximum term of confinement on several allegations either admitted or found true, electing to run the several terms concurrently, may it subsequently direct that the terms run consecutively to each other, when the minor is found to have committed yet another offense?   Put another way, can later events justify a modification of a maximum term of confinement?   Based on the authority to change, modify, or set aside any order conferred by Welfare & Institutions Code section 775 ¹ , we answer in the affirmative.   We also reject the contention, raised in a supplemental brief, that the minor is entitled to the benefit of an amendment to Vehicle Code section 10851, effective January 1, 1993, which reduces the maximum punishment from four to three years.

STATEMENT OF FACTS

Although appellant minor, Pedro T., has a long and relatively complicated history of involvement with the juvenile court, the nature of his contention on appeal permits us to disregard the details.   We commend counsel for his concise statement of the relevant facts, which we adopt with minor modifications.

1. In appeal No. E009895, appellant stole a car.   He then escaped from placement.

2. In appeal No. E011227, he again escaped from placement.

PROCEEDINGS BEFORE THE TRIAL COURT

Although no issue is raised with respect to No. E009895, the court's actions in that matter must be briefly described.   On August 5, 1991, after making true findings on allegations of vehicle theft and escape, the court duly fixed the maximum term of confinement pursuant to section 726, subdivision (c).   The result was a figure of four years and four months, being four years—the upper term—for vehicle theft (Veh.Code, § 10851)—and a consecutive four-month term on the escape charge.  (§ 871.)   The court directed that “the other matters that are before the Court will run concurrent to one another”;  this referred to various sustained allegations on prior petitions.   Although the court made a commitment of the minor to the Youth Authority, this commitment was ordered stayed and the minor was placed at Twin Pines Ranch.

Following the minor's next escape, the commitment to the Youth Authority was effectuated.   In addition to imposing a new, consecutive, four-month term for this escape, the court ordered that “all other violations as set forth on the computation sheet are to run consecutive to the base term [i.e. the vehicle theft]” with the result that the maximum term of confinement was fixed at six years and six months;  had the court not altered the miscellaneous previously-imposed terms from concurrent to consecutive, the maximum would have been four years and eight months.

The petition alleging the last escape included the notification that the District Attorney intended to rely upon previously sustained petitions for aggregation of the maximum periods of confinement.

DISCUSSION

I

 First, there is no dispute that either computation, standing alone, would be proper.   When a minor is removed from the custody of his parents, he cannot be held in physical confinement for longer than the maximum term of imprisonment applicable to an adult convicted of the offense or offenses which support the jurisdiction of the juvenile court.  (§ 726.)   Aggregation of terms stemming from multiple petitions is expressly permitted, but the court has the discretion to run the terms concurrently or consecutively.  (In re Jesse F. (1982) 137 Cal.App.3d 164, 168, 186 Cal.Rptr. 841.)

 However, appellant contends by analogy to adult penal law that the court had no jurisdiction to alter the maximum term of confinement as previously determined.   He points out that where a court imposes sentence upon an adult offender and suspends execution upon a grant of probation, it may not thereafter modify the sentence when probation is revoked.  (People v. Arguello (1963) 59 Cal.2d 475, 476–477, 30 Cal.Rptr. 333, 381 P.2d 5;  In re Nafe (1965) 237 Cal.App.2d 809, 813, 47 Cal.Rptr. 457.)   Noting that his placement at Twin Pines Ranch was made in connection with the court's explicit warning that a failure to comply with the conditions imposed by the court would result in a commitment to the Youth Authority, he likens his situation to that of an adult on probation, and argues that the court had no power later to alter the maximum time of confinement fixed at the time of his placement at Twin Pines Ranch.²

Respondent, on the other hand, argues that the trial court properly exercised the authority given to it by section 775, which provides that “[a]ny order made by the court in the case of any person subject to its jurisdiction may at any time be changed, modified, or set aside, as the judge deems meet and proper, subject to such procedural requirements as are imposed by this article.” ³  It notes that the statute is unqualified and places no restrictions on the court's power to modify a previous order.   As the minor was notified that the People intended to seek aggregation of terms (see In re Michael B. (1980) 28 Cal.3d 548, 554, 169 Cal.Rptr. 723, 620 P.2d 173), respondent concludes that the procedure was proper.

To begin with, we do not find respondent's cited authority dispositive on the issue of the extent of the trial court's authority under section 775.   In People v. Najera (1990) 222 Cal.App.3d 1507, 272 Cal.Rptr. 413, the court dealt with a resentencing after a commitment to the Youth Authority pursuant to section 1731.5 [commitments of offenders tried as adults] was recalled on the recommendation of the director of the Youth Authority.  (§ 1737.)   Although respondent cites the case for the principle that section 775 contains no restriction on modification to reflect a greater maximum term of confinement, the case does not so hold.

In Najera, the defendant argued that the court had no jurisdiction to impose a sentence “harsher” than the one originally imposed.   The argument is somewhat puzzling, because in terms of actual confinement, the resentencing resulted in a shorter term than that specified at the time of the Youth Authority commitment.  (222 Cal.App.3d at p. 1516, 272 Cal.Rptr. 413.)   The opinion suggests that the defendant's focus was actually on the later decision to impose a prison term in lieu of a Youth Authority commitment, rather than any power to increase the actual term of confinement.  (Ibid.)  In this respect, the decision is supported by the analysis that the recalling court must logically have the power to impose a prison sentence, because in many cases the reason for recall is that the defendant has been found unsuitable for further rehabilitation in the Youth Authority.

Before the 1975 amendment of section 1737, the court committing an offender to the Youth Authority under section 1731, unlike the juvenile court or the court sending a defendant to prison, had no power whatsoever to recall the sentence no matter how improvident it was made to seem.  (See Pen.Code, § 1168;  Welf. & Inst.Code, §§ 775, 779;  People v. Getty (1975) 50 Cal.App.3d 101, 107, 123 Cal.Rptr. 704.)   The Najera court observed that the intent of the amendment was to bring the court's power, with respect to a section 1731 commitment, in line with that established by the other two statutory provisions.   Although it rejected the defendant's contention that Penal Code section 1168, with its prohibition on a more severe resentencing, applied under section 1737, it does not explicitly state that section 1737, as expansively construed, parallels the court's power under sections 775 and 779.   That is, although Najera holds that under section 1737, the court may impose a harsher sentence—a holding made, we reiterate, in the context of comparing a Youth Authority to a prison commitment, not that of length of confinement—it does not expressly rely on the extent of the juvenile court's power under sections 775 and 779 to reach this result.

The other case upon which respondent relies, In re Antonio A., supra, 225 Cal.App.3d 700, 706, 275 Cal.Rptr. 482 contains the broad statements that where a grant of juvenile “probation” is revoked, “the entire underlying order is subject to modification” [citing section 775], and “any given supplemental petition can result in modification of an order itself the product of earlier modification․”  Antonio A. concerns the extent of due process and statutory protections required on the hearing of a supplemental petition filed to support a revocation of probation.   The quoted statements merely reflect the obvious, as discussed below when we direct our attention to section 775.   The case is not authority for the specific scope of that statute.

On the other hand, we recognize that, as appellant concedes, a juvenile offender is not entitled to the automatic application of all favorable rules of adult criminal procedure.  (In re Dorothy B. (1986) 182 Cal.App.3d 509, 518, 227 Cal.Rptr. 472;  see also People v. Najera, supra, 222 Cal.App.3d at p. 1516, 272 Cal.Rptr. 413.)   Thus, even if an order fixing the maximum term of confinement is analogous to a sentence after conviction, it is not sufficient merely to say that because an adult whose probation is revoked after the imposition of sentence cannot be resentenced, the juvenile court is similarly barred from changing the maximum time of confinement.   We turn to section 775.

 To begin with, section 775 on its face includes “all” orders, and the only qualification is that any such change must be pursuant to whatever procedural requirements are imposed by “this article.”   As appellant points out, some of the following statutes in that article are directed to specific changes or modifications—e.g., orders changing placement (§ 777) and orders making an actual commitment to the Youth Authority (§ 779).   These statutes cover the most common situations in which a previous order might be changed, and prescribe not only the procedures to be followed, but also, in some cases, either mandate the findings that must support the new order, or require the court to consider specific factors.   The first question is whether the authority conferred by section 775 is limited to the situations specifically covered in the article.⁴

Appellant cites us to no authority substantially limiting the scope of the statute, and we have found none, except insofar as the remainder of the article imposes specific restrictions.⁵  The statutory language (“any order”) has been repeated without comment as defining the reach of the law.   (In re Francis W. (1974) 42 Cal.App.3d 892, 897, 117 Cal.Rptr. 277.) ⁶  It has also been cited in support of holdings as diverse as that confirming the trial court's power to vacate a finding of fitness under section 707 (People v. Superior Court (Woodfin) (1982) 129 Cal.App.3d 970, 975–976, 182 Cal.Rptr. 787), the holding that the court, after finding jurisdiction, may nevertheless choose immediately to dismiss proceedings (In re W.R.W. (1971) 17 Cal.App.3d 1029, 1037, 95 Cal.Rptr. 354), and the ruling that, despite the absence of specific provisions for seeking a new trial, a minor may seek a reconsideration of a jurisdictional finding upon a showing of new evidence.  (In re Steven S. (1979) 91 Cal.App.3d 604, 605–608, 154 Cal.Rptr. 196.)

Accordingly, we conclude that the court's power under section 775 to modify or set aside “any” order means just that—subject to constitutional and express statutory concerns.⁷

 But appellant argues that section 726 is just such an express statutory limitation.   That statute requires that, in removing the minor from the physical custody of his parent or guardian, the “order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses․”  It also provides that if the court elects to aggregate, “the ‘maximum term of imprisonment’ shall be specified in accordance with subdivision (a) of Section 1170.1 of the Penal Code.”   Appellant argues that section 726 evidences a desire not only to engraft specific rules relating to adult offenders, as specified, but also to circumscribe the juvenile court's sentencing authority with other restrictions applicable to adults.

We find this contention too broad.   In In re Luis H. (1986) 187 Cal.App.3d 546, 549, 231 Cal.Rptr. 722 the minor argued that his confinement term improperly exceeded the double-the-base-term prohibition of Penal Code section 1170.1, subdivision (g).   In rejecting this contention, the court pointed out that section 726 directs that the maximum term of confinement be calculated with respect to Penal Code section 1170.1, subdivision (a), and does not mention subdivision (g).   Applying the maxim that expressio unius est exclusio alterius, the court ruled inapplicable those sentencing provisions of the Penal Code not expressly incorporated into the juvenile law.

Appellant's argument that section 726 is intended to limit a juvenile's confinement to the maximum period in which an adult could be confined is correct, and the courts have consistently reached this result—but with specific reference to the limitations of section 1170.1, subdivision (a).  (See, e.g., In re Eric J. (1979) 25 Cal.3d 522, 536, 159 Cal.Rptr. 317, 601 P.2d 549, requiring pre-commitment credit to be given;  In re Claude J. (1990) 217 Cal.App.3d 760, 763–765, 266 Cal.Rptr. 99, reluctantly concluding that Pen.Code, § 1170.1, subd. (a), as incorporated into § 726, forbids the use of a fully consecutive misdemeanor term in calculating the maximum confinement time.)   However, the argument misses the point.

Nothing in Penal Code section 1170.1, subdivision (a), deals with the court's power to alter a sentence previously imposed;  that restriction stems from other provisions of statutory and case law.   Section 726 governs the calculation of confinement time, not a change in that calculation.   Accordingly, it does not operate to prohibit the action taken by the trial court here.

 Although appellant does not raise an equal protection claim, we briefly discuss the issue.   Although many aspects of criminal law are applied to minors in the interest of constitutional due process and equal protection (see, e.g., In re Gault (1967) 387 U.S. 1, 41, 87 S.Ct. 1428, 1451, 18 L.Ed.2d 527), the fundamental differences between the goals of penal and juvenile law justify the recognition that not all rules of adult procedure need be applied to juveniles.  (See In re Eric J., supra, 25 Cal.3d at pp. 528–532, 159 Cal.Rptr. 317, 601 P.2d 549;  In re Dorothy B., supra, 182 Cal.App.3d at pp. 518–520, 227 Cal.Rptr. 472, and cases cited.)

 In a criminal matter, as discussed above, the pronouncement of judgment and imposition of sentence deprives the court of further jurisdiction over the matter.  (People v. Arguello, supra, 59 Cal.2d at p. 476, 30 Cal.Rptr. 333, 381 P.2d 5.)   The juvenile court's jurisdiction, however, continues;  furthermore, there are viable reasons for permitting the court to alter its previous computation of confinement time.   In some cases, the court, in measuring a minor's culpability and the prospects for reform, may elect to run terms concurrently and minimize confinement.   If the minor's later behavior demonstrates that the court's optimism was unfounded, and that a truly “maximum” confinement time is desirable, the court should, in later proceedings, have the power to recompute the maximum term imposed in those later proceedings by running terms consecutively.   In other cases, the court may base its original computation on concurrent terms as an incentive, while warning the minor that if he misbehaves again, he will be subject to a fully consecutive term of confinement.   In either situation, the power to recompute the confinement term comports with the overall goals of the juvenile system.

Appellant argues if it was subject to later change, the original announcement of the original “maximum confinement time” was either meaningless or misleading.   Not so.   We assume that a modification of confinement time, like any other modification or change, must be based on good cause in the exercise of the court's sound discretion—“as the judge deems meet and proper.”   Section 775 puts any minor on notice that, if the circumstances which surround the making of an order change, or the assumptions on which the order is based prove incorrect, the order may be altered.   The rule may, of course, work either to the minor's benefit or to his (superficial) disadvantage.   In the latter case, it is within the minor's power to avoid a negative modification;  here, the minor invited such action by his willful disobedience of the previous order.   There is no unfairness in the procedure employed by the trial court, and authorized by law.

II

 In a supplemental brief, the minor points out that, effective January 1, 1993, the maximum punishment for the unlawful taking of a vehicle under section 10851 is reduced from four years to three years.   (Stats.1989, § 11.1, § 12.5 of ch. 930.) ⁸  Under the holding of People v. Vasquez (1992) 7 Cal.App.4th 763, 9 Cal.Rptr.2d 255, he asks that his maximum term be reduced by one year.   We find Vasquez, and the cases upon which it relies, inapplicable.

In Vasquez, a jury had found true enhancement allegations charging that defendant had committed a crime while armed with a firearm.  (Pen.Code, §§ 12022, subd. (a), 12022.5, subd. (a).)  At the time of the crime, and of his conviction in the trial court, the statutory definition of “firearm” included a gas-pressured pellet gun such as a BB gun, and defendant had been armed with such a weapon.   However, by the time his appeal was decided, the statutory definition of “firearm” had been amended to delete such weapons.

The court held that the repeal required that the use and armed enhancements be reversed, and that retroactive application of the more limited new definition was permissible because it generally favored defendants.  (7 Cal.App.4th at p. 767, 9 Cal.Rptr.2d 255.)   The court relied on In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948, in which the court reviewed common law and concluded that the amendment of a statute which lessens punishment for a specified crime is to be applied retroactively, and that the repeal of a statute which criminalizes conduct bars all pending prosecutions for the deleted crime.  (63 Cal.2d at pp. 746–748, 48 Cal.Rptr. 172, 408 P.2d 948.)   The Vasquez court also noted that the rule of Estrada was cited more recently in Tapia v. Superior Court (1991) 53 Cal.3d 282, 301, 279 Cal.Rptr. 592, 807 P.2d 434, in which the court explained that such statutes were applied retroactively because “ ‘[w]hen the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act.’ ”  (Citation omitted.)

We will not quarrel with these authorities ⁹ , but the presumption is not available here.  Vehicle Code section 10851 specified a maximum punishment of three years up until 1989.   In that year, the Legislature, by the enactments cited above, increased the maximum penalty to four years.   The increase, however, was self-terminating in that the maximum would revert to three years on January 1, 1993, unless affected by legislation enacted before that date.  (Stats.1989, ch. 930, § 11.1.)

The increase in punishment under Vehicle Code section 10851 was part of a bill which began with a preface which reads in part “The Legislature finds and declares that the rapid increase in motor vehicle theft has reached crisis proportions ․ the escalating problem of vehicle theft is nurtured by the lack of any serious deterrent to this crime ․ the Legislature believes that it is in the best interest for public safety to enhance the penalties for the crimes of vehicle theft and receiving stolen vehicles.”   Under the enactment, the punishment for vehicle theft was increased effective January 1, 1990, through December 31, 1992.

With this background, it is apparent that the minor's position is untenable.   The reduction in punishment effective January 1, 1993, cannot reasonably be understood as reflecting a legislative determination that the earlier punishment was too severe;  the increase was enacted deliberately, in reaction to a perceived crisis involving vehicle thefts.   While we are not privy to the reasons for which the increased punishment was allowed to expire, common sense tells us that where the Legislature increases the punishment for an offense for a limited period—perhaps as a test of its efficacy as a deterrent—the punishment must be applicable to all offenses committed within that period.   To hold otherwise provides the canny criminal—and the dedicated defense attorney—with an enormous loophole, where the Legislature signals its intention to reduce punishment several years in advance.

In the typical case, an amendment takes effect within no more than several months of its enactment (Cal. Const., art. 4, § 8;  Gov.Code, § 9600);  in those circumstances, the opportunities for evading the harsher penalty by delay are to some extent limited, and the danger of deliberate manipulation of the system correspondingly small.   However, in a situation such as the one at bar, where the prospective reduction is known far in advance, the criminal's power to delay proceedings has a wide field in which to operate.

In fact, deliberate delay would hardly be necessary.   The latest figures available to this court indicate that the average time between the filing of a notice of appeal in a criminal case, and the filing of the opinion, is 449 days in this division—over a year and two months.   Add to this the time taken to bring the case to trial, and the time in which to seek a rehearing and then review in the Supreme Court, and it is obvious that a three-year “trial period” for a more severe sentence will actually apply to only a small number of offenders whose convictions are not absolutely final before the punishment reverts down.¹⁰

We cannot blind ourselves to the delays inherent in the criminal justice system.   If an offender were allowed to escape the enhanced punishment by delaying proceedings until the lesser punishment was reinstated, few indeed would suffer the increased punishment which the Legislature deemed appropriate.¹¹

Furthermore, as the Attorney General points out, the minor committed the offense in October 1990.   After his commitment, he escaped in August of 1991 and was not retaken until March 1992.   We recognize that in In re Fink (1967) 67 Cal.2d 692, 63 Cal.Rptr. 369, 433 P.2d 161, the Supreme Court applied the principle of Estrada even in favor of a defendant who became arguably subject to the lesser sentence largely because he had delayed the finality of his conviction by escaping.   Here, however, the question of what was the “punishment deemed appropriate by the Legislature” (Fink, at p. 694, 63 Cal.Rptr. 369, 433 P.2d 161) must be answered by “four years, not three.”   The delay, however occasioned, does not alter this result.¹²  Given the history of the amendment, we do not find ourselves compelled to give the minor the benefit of the more lenient term.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   All subsequent statutory references are to the Welfare & Institutions Code unless otherwise specified.

2.   The analogy is apt, although not perfect.   The Welfare & Institutions Code expressly provides for “probation” only where the court, although finding jurisdiction to exist, chooses not to make a minor a ward of the court.  (§ 725.)   However, the court's power “to make any and all reasonable orders for the conduct of the ward” under section 730 is frequently termed the power to impose probation conditions, and the minor's failure to obey the conditions is termed a violation of probation.  (In re Christopher W. (1973) 29 Cal.App.3d 777, 783, 105 Cal.Rptr. 775;  see also In re Jimi A. (1989) 209 Cal.App.3d 482, 485, 257 Cal.Rptr. 147.)   However, when a supplemental petition under section 777 is filed against a juvenile probationer, the consequences can be quite different from those faced by the adult probationer;  for example, the court, in making the new disposition, will consider the minor's entire history, and is not bound by its previous placements.  (See In re Antonio A. (1990) 225 Cal.App.3d 700, 706, 275 Cal.Rptr. 482.)

3.   Appellant suggests that the alteration in the maximum term may have been inadvertent.   Our review of the record indicates that this is indeed a possibility;  at the time of the final commitment, there was no discussion on the record concerning any change in the previous order.   The last probation report briefly referred to a previous “stay” of the Youth Authority commitment, but did not remind the court that the maximum confinement time had been computed at that time.   The last probation report also included the computation eventually adopted by the court.   The earlier minute order reflecting the placement at Twin Pines Ranch failed to include the finding as to maximum confinement time.   Thus, nothing brought to the court's attention the fact that it had already fixed the maximum confinement time once.As we note below, any change in a previous order must represent an exercise of the court's discretion.   However, on the record before us, we cannot conclude that the court did not, in fact, act intentionally in making the modification.

4.   Appellant asserts that neither section 777 nor section 779 governs the situation in the case at bar, and we agree.   Section 777 covers new orders “changing or modifying a previous order by removing a minor from the physical custody of a parent [etc.] ․ and directing placement in a foster home, or commitment to a private ․ or ․ county institution, or an order changing or modifying a previous order by directing commitment to the Youth Authority.”   By its terms, the statute covers only changes in placement, not the recomputation of confinement.Section 779 provides for the recall of a Youth Authority commitment.

5.   For example, In re William S. (1970) 10 Cal.App.3d 944, 89 Cal.Rptr. 685, construing the court's power to modify “a previous order ․” to mean the order immediately preceding the subject proceedings.

6.   The Francis W. court did make one significant alteration in its restatement of the language of section 775, by noting that the court's power was limited to the duration of its jurisdiction over the minor.   It has been confirmed that once jurisdiction terminates, findings and orders made in the prior proceeding cannot be resurrected and a new disposition made thereon.  (See In re Dana G. (1983) 139 Cal.App.3d 678, 680, 188 Cal.Rptr. 866.)

7.   We note here that appellant expressly disclaims any reliance upon constitutional due process considerations.   We further note in this context that although the notice of intention to aggregate, contained in the subsequent petition, is at best ambiguous with respect to any purported intent to seek a change in any previous computation of confinement time, the probation officer's report listed the maximum confinement time figured by running all terms consecutively, thus providing some notice of the possible action.   No objection was made at the hearing to the recomputation, and any objection to notice may therefore be deemed waived.  (See People v. Melton (1990) 218 Cal.App.3d 1406, 1409, 267 Cal.Rptr. 640, holding that any error in imposing a restitution fine to which defendant, on a plea bargain, had not expressly agreed, was waived where the probation report recommended that a fine be imposed and defendant failed to object at the hearing.)We also note that defendant does not argue that, assuming the court had the power to modify the computation, it abused its discretion in doing so.   (See, however, fn. 3, supra.)

8.   The legislation deleted former subsection (b), which returned an offense under subsection (a) or to the status of a felony for which punishment was not otherwise prescribed under section 18—16 months, two or three years.

9.   But see footnote 10, infra.

10.   The harsher punishment cannot, of course, be applied to offenders who commit crimes before it becomes effective;  such an application would violate the ex post facto clause.  (U.S. Const., art. I, § 9, cl. 3;  Cal. Const., art. I, § 9;  see In re Jackson (1985) 39 Cal.3d 464, 469–477, 216 Cal.Rptr. 760, 703 P.2d 100.)

11.   We accept the logical underpinnings of In re Estrada and the cases which follow it, but we have reservations about the practical effect of the rule especially with respect to statutory amendments reducing punishment.   In essence, it encourages defendants to obtain the maximum delay at every stage, in the hope of postponing the finality of judgment until the lesser punishment goes into effect.   It is hard to see how fairness is served if a defendant who acknowledges guilt, enters a plea of guilty, and declines to appeal may be more severely punished than a defendant who commits the same crime on the same day, but succeeds in drawing out the case at trial and on appeal until an ameliorative statute takes effect.

12.   Admittedly we cannot in good faith raise the specter of defendants deliberately escaping in order to take advantage of Fink.   It would be a rare occasion for the reduction in punishment to exceed the risk of a new conviction and sentence for escape.

DABNEY, Associate Justice.

RAMIREZ, P.J., and McKINSTER, J., concur.