In Re Antonio P.

California Court of Appeal Aug 7, 2007 No. F051743Published

Before: Vartabedian

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Holding. The court held that a juvenile's maximum term of confinement is not unconstitutional under Cunningham v. California because the term was based on the recidivist factor of prior convictions, which remains a permissible basis for an upper term sentence.

Issues

Whether the maximum term of confinement for a juvenile is limited to the middle term of imprisonment under Cunningham v. California.
Whether the juvenile court's imposition of an upper term based on prior offenses violates constitutional rights.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Even if Cunningham were applicable, the maximum period of confinement in this case does not exceed the maximum sentence that could be imposed on an adult with a comparable record of prior offenses.”

“the Cunningham court, however, reaffirmed an exception to the jury-verdict/admission rule when the trial court uses the fact of prior convictions to impose the upper term.”

64 Cal.Rptr.3d 268 (2007) 153 Cal.App.4th 1540 In re ANTONIO P., a Person Coming Under the Juvenile Court Law.

The People, Plaintiff and Respondent,

Antonio P., Defendant and Appellant.

No. F051743. Court of Appeal of California, Fifth District.

August 7, 2007. Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Jesse Witt and David Andrew Eldridge, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

VARTABEDIAN, Acting P.J.

This is an appeal from a judgment committing appellant Antonio P, a minor, to the California Department of Corrections, Juvenile Justice (Juvenile Justice). Appellant contends the court erred in imposing a maximum term of confinement of three years for the felony portion of his adjudication, when the maximum sentence that could be imposed on an adult, after Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856,166 L.Ed.2d 856 (Cunningham ), was the middle term of two years. Because we determine a three-year sentence could have been imposed on an adult, we will affirm the judgment.

[269] Facts and Procedural History

Between March of 2003 and October of 2004, appellant was the subject of an initial and six supplemental juvenile petitions filed under Welfare and Institutions Code section 602. One supplemental petition was filed in October of 2004 and alleged a violation of Penal Code section 487, subdivision (c), theft of property from the person of another, a felony.

Appellant was committed to juvenile hall for short periods and to longer term residential programs on the various petitions; his last confinement before the present confinement was a February 2006 term of 30 days in juvenile hall for a probation violation. (See Welf. & Inst.Code, § 777, subd. (a)(2).)

In Re Antonio P.

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OPINION

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