IN RE: MICHAEL ROBERT B. (1980)

Michael Robert B. (Michael) appeals from a dispositional order of the juvenile court continuing his status as a ward (Welf. & Inst.Code, ss 602, 775; all statutory references are to the Welfare and Institutions Code unless otherwise indicated) and committing him to the California Youth Authority (CYA). Although the only petition filed in this proceeding was pursuant to section 602, Michael's CYA commitment was increased by an additional two years and four months for previously sustained offenses. The sole statutory method permitting aggregation under section 726 is the filing of a supplemental petition as required by section 777. Under the circumstances of this case the failure to comply with section 777 requires reversal.

Procedural and Factual Background

This appeal concerns Michael's most recent petition filed September 19, 1978, which alleged he came within the provisions of section 602 because he committed forgery (Pen.Code, s 470; count I) and disobeyed a court order (Pen.Code, s 166.4; count II). On September 29, 1978, he admitted the allegations in count I; count II was dismissed. The dispositional hearing was held immediately following his admission. He was committed to CYA for a term of five years and four months, representing three years for the forgery and two years and four months aggregated for previously sustained offenses alleged within petitions dated January 26, 1977, and February 23, 1977.^[FN1]

The relevant portion of the minor's prior record is as follows: A petition filed January 26, 1977, charged the minor with four counts of vehicle theft (Veh.Code, s 10851). A true finding was made on February 17, 1977, on one count and the minor was declared a ward under section 602. He was released on probation to his mother.

On February 23, 1977, another petition was filed alleging that on February 19, 1977, Michael was involved in a hit and run accident (Veh.Code, s 20002, subd. (a)); had stolen a vehicle (Veh.Code, s 10851); and had driven a vehicle without a license (Veh.Code, s 12500, subd. (a)). The allegations were admitted on February 24, 1977, and true findings were made that same date. As a ward of the court, he was placed in the San Diego County Juvenile Ranch Facilities until released on May 20, 1977.

The Minor Was Not Given Adequate Notice of the Court's Intention to Aggregate His Maximum Term of Confinement Based Upon His Prior Offenses

The minor claims the failure to file a supplemental petition under section 777 prevents the court from aggregating the maximum period of confinement on the basis of prior offenses.

Section 777 requires the filing of a supplemental petition to change or modify a prior disposition. The minor must be afforded notice of the intended change, as well as the time and place of the hearing, and the petition must contain a concise statement of facts in support of the conclusion the minor's previous placement has been rehabilitatively ineffective. (In re Ruben M. (1979) 96 Cal.App.3d 690, 696, 158 Cal.Rptr. 197; In re Reynaldo R. (1978) 86 Cal.App.3d 250, 253-255, 150 Cal.Rptr. 71; In re Glenn K. (1977) 74 Cal.App.3d 342, 345-346, 141 Cal.Rptr. 486; ss 775, 776, 777.) Before the previous dispositional order may be modified, the court must make an express finding the previous order in fact has been rehabilitatively ineffective. (In re Reynaldo R., supra, 86 Cal.App.3d at p. 255, 150 Cal.Rptr. 71; In re Denise C. (1975) 45 Cal.App.3d 761, 766-767, 119 Cal.Rptr. 735.)^[FN2]

After a new petition is sustained under section 602, the court may consider the juvenile's entire record before exercising its discretion at the dispositional hearing. (In re Ruben M., supra, 96 Cal.App.3d at p. 696, 158 Cal.Rptr. 197.) However, where the prior offenses are to be considered to aggregate the maximum term to extend it beyond that which could be imposed for the new offense, due process requires notice of the juvenile court's intention in order to provide the minor with a meaningful opportunity to rebut any derogatory material within its prior record. (In re Robert S. (1979) 92 Cal.App.3d 355, 362, 154 Cal.Rptr. 832; In re Aaron N. (1977) 70 Cal.App.3d 931, 939-941, 139 Cal.Rptr. 258.) Further, in compliance with the Boykin-Tahl protections afforded a minor (In re Ronald E. (1977) 19 Cal.3d 315, 321-323, 137 Cal.Rptr. 781, 562 P.2d 684), the legislative intent embodied within the Juvenile Court Law and the pertinent California Rules of Court mandate the advising of a minor of the possible consequences of the pending petition, including generally the possibility of aggregation and specifically “the maximum period of physical confinement, at the detention or jurisdictional hearing, or at some point before an admission is accepted or a contested jurisdictional hearing commences.” (In re Richard W. (1977) 91 Cal.App.3d 960, 155 Cal.Rptr. 11, modified at 93 Cal.App.3d 1010e, 1010f; ss 633, 700, 776, 777 and Cal.Rules of Court, rules 1324(a)(3), 1353(a) and 1354(e)(4).) Thus, we conclude the statute mandates that a section 777 supplemental petition be filed for modification to formally bring before the court the ineffectiveness of previous dispositions, in order to aggregate the maximum period of confinement on previously sustained section 602 petitions. (In re Richard W., supra, 91 Cal.App.3d at p. 978, 155 Cal.Rptr. 11, contra In re Ruben M., supra, 96 Cal.App.3d at pp. 697-698, 158 Cal.Rptr. 197.) Absent the filing of a section 777 petition, the court is limited to the maximum period of confinement of the new offense(s) set forth in the section 602 petition. (In re Richard W., supra, 91 Cal.App.3d at p. 978, 155 Cal.Rptr. 11.)

Here, Michael was denied due process. He was not given adequate notice that his maximum term of confinement could be aggregated on the basis of his prior offenses. Before his admission, he was told by the trial court that based upon his present charge and the background information provided by the probation report, he could be committed to CYA until his 23rd birthday. However, although this admonishment exaggerated the severity of his potential maximum term, since the estimate was excessive by approximately 22 months, it did not explain the mechanical consequences of his plea. The brevity of the statement was its flaw, as Michael was not told of the effect of his plea upon his previously sustained section 602 petitions. The shorthand, ambiguous admonishment had the effect of being no more than an attempt to advise the minor of his potential maximum term of confinement for the present charge alone. Michael was deprived notice of the possibility of aggregation based upon his prior offenses, adequate time to prepare his defense, and a meaningful opportunity to be heard to rebut any derogatory material relating to his prior record. Due process mandates the remanding of this matter to the juvenile court “for redetermination of the maximum permissible term of physical confinement by means of procedures which give fair notice to the minor and an opportunity to be heard.” (In re Robert S., supra, 92 Cal.App.3d at p. 363, 154 Cal.Rptr. at p. 837; In re Samuel C. (1977) 74 Cal.App.3d 351, 360, 141 Cal.Rptr. 431.)

Michael has not, however, carried his burden of establishing prejudice resulting from the improper admonishment as it pertains to the taking of his admission to the truth of the allegations within the forgery count. Since the record sheds no further light upon this issue, we conclude it is not reasonably probable that had the court properly admonished Michael, he would have been persuaded to deny the truth of the allegations he ultimately admitted. (In re Ronald E., supra, 19 Cal.3d at pp. 325-326, 137 Cal.Rptr. 781, 562 P.2d 684; In re Richard W., supra, 93 Cal.App.3d p. 1010f; In re Jimmy M. (1979) 93 Cal.App.3d 369, 373-374, 155 Cal.Rptr. 534, modified at 94 Cal.App.3d 723a; People v. Wagoner (1979) 89 Cal.App.3d 605, 610-611, 152 Cal.Rptr. 639, modified at 90 Cal.App.3d 581a; Ganyo v. Municipal Court (1978) 80 Cal.App.3d 522, 530, 145 Cal.Rptr. 636.) We affirm the true finding as to count I.

The Imposition of Consecutive Terms Was Proper

Michael urges consecutive terms for Vehicle Code section 10851 (vehicle theft) and Vehicle Code section 12500 (driving without a license) constitutes double punishment prohibited by Penal Code section 654.^[FN3]

A similar contention was rejected by our Supreme Court which explained that:

“(S)ection 654 of the Penal Code proscribes multiple punishment for a single ‘act or omission which is made punishable’ by different statutes, i. e., a single criminal act or omission. Since the mere act of driving is made punishable by no statute, it is not the type of act or omission referred to in section 654. The acts ‘made punishable’ which this petitioner committed were (1) driving with a suspended license and (2) driving while intoxicated, two separate and distinct criminal acts; that they were committed simultaneously and that they share in common the neutral noncriminal act of driving does not render petitioner's punishment for both crimes in conflict with Penal Code section 654.” (In re Hayes (1969) 70 Cal.2d 604, 611, 75 Cal.Rptr. 790, 794-795, 451 P.2d 430, 434-435, see People v. Perez (1979) 23 Cal.3d 545, 551-552, 153 Cal.Rptr. 40, 591 P.2d 63.)

Disposition [FN4]

The dispositional order pertaining to the determination of the aggregate maximum permissible term of confinement is reversed for proceedings consistent with this opinion to permit a redetermination upon notice with the opportunity for the minor to be heard. In all other respects, the order is affirmed.

FOOTNOTES

1.  In light of In re Eric J. (1979) 25 Cal.3d 522, 536-537, 159 Cal.Rptr. 317, 601 P.2d 549, the juvenile court erred in computing Michael's “aggregate maximum term” by adding six months respectively for each misdemeanor offense (hit and run Veh.Code, s 20002, subd. (a); driving without a license Veh.Code, s 12500, subd. (a)) instead of two months or one-third of each six month maximum sentence prescribed by law. Accordingly, Michael's maximum term of commitment should have been four years and eight months.

2.  The trial court's failure to do so here further mandates a limited reversal.

3.  Penal Code section 654 does apply to juvenile court sentencing, since section 726 requires aggregate confinement in accordance with Penal Code section 1170, subdivision (a), which, in turn, specifies such consecutive sentencing is subject to Penal Code section 654. In re Aaron N., supra, 70 Cal.App.3d at page 940, 139 Cal.Rptr. 258, and In re Benny G. (1972) 24 Cal.App.3d 371, 375, fn. 3, 101 Cal.Rptr. 28, holding to the contrary, are not controlling since they predate the 1977 amendment to section 726 which implemented the foregoing requirement.

4.  It is unnecessary in the context of our holding to discuss Michael's remaining contentions. Due to the lapse of time, however, it is necessary upon remand for the probation officer, to prepare a current social study for the dispositional hearing in accordance with section 280, California Rules of Court, rules 1302(b)(1) and 1371(b) and (d), and Holt v. Superior Court (1960) 186 Cal.App.2d 524, 527, 9 Cal.Rptr. 353.

WIENER, Associate Justice.

STANIFORTH, Acting P. J., and WORK, J.,[FN*] concur.