IN RE: AVELARDO M. (1980)

Avelardo M. appeals from a dispositional order of the juvenile court continuing his status as a ward (Welf. & Inst.Code, §§ 602, 725) and committing him to the California Youth Authority (CYA).   On appeal, the minor contends that the court improperly considered a previously sustained section 602 petition in setting the maximum permissible term of physical confinement under the CYA commitment.

Appellant was a ward of the court pursuant to section 602 at the time the present petition was filed and which therefore seeks to continue his wardship;  the petition alleges that appellant unlawfully took a vehicle without consent of the owner (Veh.Code, § 10851).   After hearing, the juvenile court sustained the petition.

A disposition hearing was scheduled and a probation report was prepared containing a list of prior and subsequent juvenile offenses.   At the hearing the court commented on the fact that the mother had stated that appellant was “completely beyond her control”;  that his sister indicated that appellant was “getting loaded on angel dust all the time”;  that he is an extremely active member of the Lomas gang and that he has a long history of police contacts.   The court then found appellant in violation of probation, and committed him to the CYA for a period not to exceed three years eight months, which was computed as follows:  three years (Pen.Code, § 211-robbery-prior petition filed 2/7/78);  eight months (Veh.Code, § 10851-present petition filed 4/12/79);  total three years eight months.   Both terms were to run consecutively.   After being advised that the court took into consideration the minor's previously sustained petition, appellant's attorney objected because no notice had been given that his prior sustained petition would be used in determining the maximum period of confinement of his present offense.

It is now contended on appeal that because no supplemental petition was filed pursuant to Welfare and Institutions Code section 777, and no notice was given, “the judgment must be reversed insofar as appellant's maximum time in confinement reflects time imposed for a prior sustained petition.”

Welfare and Institutions Code section 726 specifically authorizes aggregating periods of confinement attributable to previously sustained petitions.¹  Under Welfare and Institutions Code section 777, “[a]n order changing or modifying a previous order  ․ ․ ․  by directing commitment to the Youth Authority shall be made only after noticed hearing upon a supplemental petition  ․ ․ ․ .”

In In re Robert S., 92 Cal.App.3d 355, 154 Cal.Rptr. 832, the juvenile court considered previously sustained 602 petitions in fixing the juvenile's maximum period of physical confinement.   On appeal, the court held that where multiple counts or petitions are aggregated, under section 726 the maximum term of physical confinement may be fixed by reference to “previously sustained [§ 602] petitions.”   However, the court, referring to In re Aaron N., 70 Cal.App.3d 931, 139 Cal.Rptr. 258, noted that if the maximum term of confinement is to be fixed on the basis of some prior criminal act for which a petition has been sustained, “the court must advise the minor of its intention to do so and afford the minor an opportunity to be heard prior to the commitment.”  (Aaron N., supra, at pp. 939–941, 139 Cal.Rptr. at p. 264.)   In Robert S., it was argued on appeal although the minor was not formally apprised of the court's intention to base any part of its commitment order on the earlier petition, he was put on notice by the court's reference to his most recent prior offenses at the conclusion of the jurisdiction hearing.   The court, however, held that “due process requires something more,” and that the minor must be “given a meaningful opportunity to be heard regarding resort to past sustained petitions to increase the maximum permissible period of confinement.”  (Id. at p. 362, 154 Cal.Rptr. at p. 836.)   The requirements of section 777 were not discussed.

In re Richard W., 91 Cal.App.3d 960, 155 Cal.Rptr. 11, modified 93 Cal.App.3d 1010e, while acknowledging that prior cases may be considered in the disposition of the new case, held that “if a supplemental petition is not filed under section 777,” the prior adjudicated cases may not be considered in “aggregating the period of confinement.   To decide otherwise would lead to the remarkable conclusion that a minor who comes before the court charged with a misdemeanor with a [ninety]-day or six-month period of confinement, but having previously adjudicated felony violations, being exposed to the potential of multiple years in confinement without previous notice until at or shortly before the dispositional hearing.”  (Id. at p. 978, 155 Cal.Rptr. at p. 24.)   Although the court concluded that no prejudice had been demonstrated by failure to advise the minor of the possibility of aggregation, it held that failure to file a supplemental petition, as required by section 777, requires reversal of the finding of the maximum period of confinement insofar as it used periods from previously sustained petitions to aggregate the terms beyond that specified for the new offenses.  (Id. at pp. 1010f–1010g.)

Citing In re Ruben M., 96 Cal.App.3d 690, 158 Cal.Rptr. 197, respondent argues that since a court in the disposition hearing may consider all of the prior record in determining the proper disposition, there was no error in aggregating the time of the old cases and the new case.   Although the court in Ruben M. stated that where a new petition is filed pursuant to section 602, no additional petition under section 777 is required in order to include prior cases in the aggregate maximum term of commitment, its decision rested upon the assumption that if a petition under section 777 was required, Ruben M. had received all the protection that a hearing under that statute would have accorded and no prejudicial error nor miscarriage of justice resulted.

In the present case, no supplement petition pursuant to section 777 was filed.   In addition, contrary to respondent's argument, it cannot be said that appellant received sufficient notice to satisfy the requirements of due process.   Mere knowledge of being in violation of probation is not adequate notification that the court may consider the prior sustained petition in calculating the maximum period of confinement.

Consequently, we must reverse the finding of the maximum period of confinement insofar as it utilizes a period from a previously sustained petition to aggregate the term beyond that specified for the new offenses.

The order of commitment to the CYA is affirmed.   The matter is remanded to the trial court for the sole purpose of determining the maximum period of physical confinement within the term as defined in section 726 and to otherwise proceed in accordance with this opinion.

FOOTNOTES

1.   Section 726 provides in pertinent portion:  “In any case in which the minor is removed from the physical custody of his parent or guardian as the result of an order of wardship made pursuant to Section 602, 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 which brought or continued the minor under the jurisdiction of the juvenile court.  [¶]  ․ ․ ․  ‘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, but without the need to follow the provisions of subdivision (b) of Section 1170 of the Penal Code  ․ ․ ․ .  [¶] If the court elects to aggregate the period of physical confinement on multiple counts, or multiple petitions, including previously sustained petitions adjudging the minor a ward within Section 602, the ‘maximum term of imprisonment’ shall be specified in accordance with subdivision (a) of Section 1170.1 of the Penal Code.  [¶] If the charged offense is a misdemeanor or a felony not included within the scope of Section 1170 of the Penal Code, the ‘maximum term of imprisonment’ is the longest term of imprisonment prescribed by law.”  (Italics Added.)   (See § 731.)

HASTINGS, Associate Justice.

KAUS, P. J., and STEPHENS, J., concur.