IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO A126207

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1 Filed 4/15/10 In re Armani T. CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO In re Armani T., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. Armani T., Defendant and Appellant. A (Alameda County Super. Ct. No. SJ ) The sole claim advanced on this appeal from the dispositional order is that the juvenile court s calculation that the minor, Armani T., could be confined for a maximum term of nine years constitutes an unauthorized sentence that must be corrected. The Attorney General concedes that the commitment order constitutes an unauthorized sentence and also agrees that this court should modify the dispositional order by reducing the minor s maximum possible commitment period to six years. We agree with the parties and shall so modify the dispositional order. FACTS AND PROCEEDINGS BELOW A wardship petition filed by the district attorney on May 1, 2009 alleged that Armani had committed a robbery (Pen. Code, 211) 1 and a burglary ( 459) of the 1 All statutory references are to the Penal Code unless otherwise indicated. 1

2 AM/PM Minimart located on International Boulevard in Oakland. It further alleged that Armani or another principal in the commission of the offense had been armed with a pistol. ( 12022, subd. (a)(1).) A contested jurisdictional hearing was conducted on July 30 and August 3, 6, 13, 17, 18 and 19, Arash Sediqi, the manager of the Minimart, testified that between 7:00 and 8:00 a.m. on April 30, 2009, appellant and an unidentified accomplice with a handgun robbed the AM/PM Minimart on 98th Street and International Boulevard in Oakland. Though the two were hooded and wore masks, Sediqi and Ka Baw, another worker, recognized appellant from his voice and eyes, because he regularly shopped at the store. Sediqi had recently obtained a stay-away order for Armani after he and others were seen vandalizing the store on its security camera. The security camera also showed that about 30 minutes before the present offense two youths entered the store. One of them had orange hair; the other was wearing a distinctive shirt with a tiger embroidered on the chest. The surveillance videotape also recorded the robbery the two subsequently committed, but at that time both robbers were wearing hoods and masks. The robbers took about $620 and fled together. Police Officer Billy Matthews, who responded to a call, testified that he quickly found appellant around the corner from the Minimart and detained him. Appellant had $124 in a shoe and was wearing the shirt with the embroidered tiger shown in the videotape. Officer Mark Thomas, who also investigated the robbery, viewed the videotape and recognized appellant as one of the people in the Minimart about 15 minutes before the robbery. Ka Baw testified for the defense that the gun was pointed at the back of his head throughout the robbery and he therefore could not identify either robber. The videotape showed that the robber wearing the white hoodie did not hold the gun at any time during the robbery. Appellant, who testified only regarding facts relating to whether he received a timely Miranda 2 warning, denied participating in the robbery. 2 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). 2

3 The court found the allegations of the petition true and that Armani had not personally used a weapon. It also concluded that the maximum period of time Armani could be confined was nine years and ordered him placed at the Boy s Republic. Armani filed this timely notice of appeal on September 23, DISCUSSION A sentence is unauthorized if it cannot lawfully be imposed under any circumstance present in a particular case. A commitment order issued by a juvenile court for which there is no statutory authority is tantamount to an unauthorized sentence. (In re Ramon M. (2009) 178 Cal.App.4th 665, 675; In re Babak S. (1993) 18 Cal.App.4th 1077, ) An unauthorized sentence is reviewable even if it was not objected to in the sentencing court (In re Sheena K. (2007) 40 Cal.4th 875, 887), and may be corrected by a reviewing court (People v. Cantrell (2009) 175 Cal.App.4th 1161, 1165; People v. Valenzuela (2009) 172 Cal.App.4th 1246, ). The sole question presented is the application of section 654 to juvenile cases, a legal issue as to which our review is de novo. At the penultimate hearing before the juvenile court on August 19, 2009, the court found that Armani is a person described under [Welfare and Institutions Code] section 602 and that he committed two felony violations, one of robbery, section 211 of the Penal Code, and the other of burglary, section 459 of the Penal Code... and that he was armed within the meaning of Penal Code section 12022(A)(1). When the clerk asked what the maximum confinement time was, the public defender indicated it should be six years (five years for the robbery plus one year for the use of a gun), claiming that the burglary merges in the robbery under section 654. The district attorney disagreed, claiming that the robbery and burglary are independent elements. The court sided with the district attorney, stating that the calculation [in a juvenile proceeding] is not the same for sentencing purposes with an adult, and the maximum possible sentence for Armani under... this particular fact scenario is nine years by my calculation. The issue arose again at the hearing on September 2, Noting that the maximum possible commitment period for Armani had apparently been set at nine 3

4 years, the public defender reiterated that I think it should be six. It was a robbery and arming clause. That s five plus one, six. There is the burglary, but my position is that the burglary merges with the robbery so it should be six, and if the burglary doesn t merge, it should be at most six [years] eight [months], but my position is still that the burglary merges with the robbery so it should be six. The court declined to decide the issue at that hearing, stating [w]e can resolve this at placement. I ll just ask [the deputy district attorney] to take a look at it and let me know if that s an issue or not. The record discloses no further judicial consideration of the legal question, but the juvenile detention disposition report contained in the Clerk s Transcript shows that on September 2, 2009, which was the date of the last hearing, the court set the maximum possible commitment for Armani at 108 months, which is nine years. That order is tantamount to an unauthorized sentence. (In re Ramon M., supra, 178 Cal.App.4th at p. 675.) Subdivision (c) of Welfare and Institutions Code section 726 provides that when a minor is removed from the physical custody of a parent as a result of an order of wardship pursuant to Welfare and Institutions Code 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. Section 654 prohibits punishment of an adult for two crimes arising from a single, indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) If all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. (In re David H. (2003) 106 Cal.App.4th 1131, 1134.) It is settled law that section 654 bars punishment for both burglary and robbery where the sole purpose of the burglary was to effectuate the robbery. (People v. Smith (1985) 163 Cal.App.3d 908, 912; see also People v. Perry (2007) 154 Cal.App.4th 1521, 4

5 1523, 1525; People v. Le (2006) 136 Cal.App.4th 925, 931; People v. Guzman (1996) 45 Cal.App.4th 1023, 1027, 1029.) As the parties agree, that was clearly the case here. The robbery and burglary arose from a single course of conduct, the entrance of the store was for the sole purpose of committing the robbery, and no victim sustained any physical injury. Section 654 applies to consecutive or aggregated terms calculated by a juvenile court pursuant to Welfare and Institutions Code section 726, subdivision (c). (In re Asean D. (1993) 14 Cal.App.4th 467, 474.) The juvenile court s mistaken belief that the specification of the maximum commitment period mandated by subdivision (c) of Welfare and Institutions Code section 726 need not conform to the restriction imposed by section 654 was legal error. As appellant claims and the Attorney General agrees, the juvenile court s disposition on the burglary count should have been calculated at a consecutive term of eight months, or one-third the midterm, under section , subdivision (a) (In re Jovan B. (1993) 6 Cal.4th 801, 812) and imposition of that consecutive term stayed pursuant to section 654. DISPOSITION For the foregoing reasons, the dispositional order in this case must be modified as follows: Armani T. s maximum possible term is six years, consisting of five years for the commission of robbery ( 211) and an additional and consecutive term of one year for being armed with a firearm in the commission of a felony ( 12022, subd. (a)(1)). For the concomitant commission of burglary in violation of section 459, Armani shall receive a consecutive term of eight months, one-third the two-year midterm for the commission of that offense ( , subd. (a)), but imposition of that consecutive term shall be stayed pursuant to section

6 The juvenile court is directed to prepare an amended dispositional order reflecting these changes and to forward a copy thereof to Armani s probation officer. As so modified, the dispositional order is affirmed. Kline, P.J. We concur: Haerle, J. Richman, J. 6