Filed 11/19/20 In re R.R. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for 

publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF 

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

In re R.R., a Person Coming 

Under the Juvenile Court 

Law.

 B305422

THE PEOPLE,

Plaintiff and Respondent,

v.

R.R.,

Defendant and Appellant.

(Los Angeles County

 Super. Ct. No. PJ53147)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Morton Rochman, Judge. Affirmed as 

modified, with instructions.
2

Steven A. Torres, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, 

Chief Assistant Attorney General, Susan Sullivan Pithey, 

Senior Assistant Attorney General, Paul M. Roadarmel, Jr.

and Stephanie A. Miyoshi, Deputy Attorney Generals, for 

Plaintiff and Respondent.

______________________________________________________

INTRODUCTION

Appellant R.R. committed an assault with a firearm 

when he was 16 years old. The People prosecuted him as an 

adult without first making a transfer motion in juvenile 

court. He was convicted of the firearm-assault by a jury, 

which also found gang and firearm enhancements true. The 

trial court denied his motion to remand the case to juvenile 

court pursuant to Proposition 57, as approved by voters in 

2016 (requiring the People to make a transfer motion in 

juvenile court before prosecuting a juvenile offender in 

criminal court). We conditionally reversed his conviction 

and remanded to the juvenile court with instructions to (1)

determine whether the court would have granted a transfer 

motion, had the People made one; and, if not, (2) treat the 

conviction as a juvenile adjudication and impose an 

appropriate disposition. (People v. Ruiz (May 16, 2018, No. 

B280874) 2018 Cal.App.Unpub. LEXIS 3326.) 

On remand, after determining that it would not have 

transferred appellant, the juvenile court committed him to 
3

the Division of Juvenile Facilities (DJF). Such commitment 

required the court to set a maximum period of confinement

no longer than the maximum sentence that could be imposed 

on an adult convicted of the same offense (with the same 

enhancements found true). (Welf. & Inst. Code, §§ 726, 731.) 

The parties’ counsel represented that the maximum adult 

sentence was 24 years, comprising the four-year upper term 

on the firearm-assault conviction, a 10-year term on the 

firearm enhancement, and another 10-year term on the gang 

enhancement. Accepting this representation, the court set

appellant’s maximum period of confinement at 24 years. It 

signed Judicial Council Form JV-732, attesting it had 

“considered the individual facts and circumstances of the 

case” in ordering the maximum period of confinement, and 

acknowledging its discretion to order a shorter maximum.

On appeal, appellant contends the court erred by 

relying on the gang enhancement to extend his maximum 

period of confinement by 10 years because (1) the correct 

length of the gang enhancement is five years; and (2) had 

appellant been sentenced as an adult, the court would have 

been required to stay the gang enhancement. The People 

agree. In his reply brief, appellant argues for the first time 

that we must remand for a new disposition hearing because 

(1) the court was unaware of its discretion to order a 

maximum period of confinement shorter than the maximum 

adult sentence; and (2) appellant has the right to present 

“new evidence based upon his behavior and change of 

circumstances while in lock-up.” 
4

We agree the court erred by relying on the gang 

enhancement to extend appellant’s maximum period of 

confinement by 10 years. We find appellant’s arguments for 

remand both forfeited and without merit. Accordingly, we

affirm the judgment as modified to reduce the maximum 

period of confinement from 24 years to 14 years.

FACTUAL BACKGROUND

A. Appellant’s Conviction and Our Conditional 

Reversal

The People charged appellant in adult criminal court

with, inter alia, assault with a firearm on Pasadena Police 

Department Officer David Llanes.

1 (Pen. Code, § 245, subd. 

(a)(2).) The People alleged that appellant personally used a 

shotgun (id., § 12022.53, subd. (b)), and that the

firearm-assault was committed for the benefit of, at the 

direction of, and in association with a criminal street gang 

(id., § 186.22, subd. (b)(1)(B)). 

At appellant’s trial, Officer Llanes testified that on 

August 13, 2013, he observed appellant (then 16 years old), 

Bryan Valle, and two other individuals conversing in front of 

1 Appellant was also charged with assault on a peace officer 

with a firearm (Pen. Code, § 245, subd. (d)(1)) and conspiracy to 

commit murder (id., § 182, subd. (a)(1)). Though he was initially 

convicted of both offenses, the convictions were later vacated, and 

they played no role in the juvenile court’s disposition. We 

therefore decline to further discuss the proceedings on those 

charges.
5

a building he was surveilling from his unmarked vehicle. 

Appellant approached the officer’s vehicle, looked inside, 

flashed gang signs, and then returned to the group. Valle 

also examined the vehicle and, while doing so, reached into 

his front waistband. Afraid that Valle might be drawing a 

weapon, Officer Llanes rolled down his window, and yelled, 

“Police. Get the fuck away from my car.” Valle returned to 

the group and shortly thereafter headed eastbound with 

appellant, out of the officer’s sight. Minutes later, Officer 

Llanes saw appellant, carrying a large bag, approaching his 

vehicle with Valle. 

When appellant reached the rear of Officer Llanes’s

vehicle, he crouched and held the bag as one would hold a 

rifle. Officer Llanes covertly exited his vehicle and sneaked

to the rear. He observed appellant, who had moved to the 

front, pointing the bag toward the windshield. The officer

aimed his duty weapon at appellant and attempted to arrest 

him. Appellant dropped the bag and fled, but was quickly 

apprehended. Officer Llanes discovered a loaded shotgun in 

the bag. Another police officer, testifying as a gang expert 

and relying on a variety of evidence, opined that appellant 

and Valle were members of a criminal street gang, and that 

appellant’s assault on Officer Llanes was committed for the

gang’s benefit.

A jury convicted appellant of the firearm-assault and 

found true the firearm and gang enhancement allegations. 

Appellant subsequently filed a motion to remand his case to 

juvenile court pursuant to Proposition 57, which requires the 
6

People to make a transfer motion in juvenile court before 

prosecuting a juvenile offender in criminal court. The trial 

court denied the motion and sentenced appellant to 18 years 

in prison. On appeal, we conditionally reversed appellant’s

conviction and remanded to the juvenile court with 

instructions to (1) determine whether the court would have 

granted a transfer motion, had the People made one; and, if 

not, (2) treat the conviction as a juvenile adjudication and 

impose an appropriate disposition. (People v. Ruiz, supra, 

2018 Cal.App.Unpub. LEXIS 3326.) 

B. Juvenile Court Proceedings on Remand

On January 4, 2019, the People filed a petition in the 

juvenile court for appellant to be declared a ward under 

Welfare and Institutions Code section 602. The People also 

filed a petition to transfer appellant to adult criminal court. 

The juvenile court held a transfer hearing over four days in 

November 2019 and January 2020. Finding appellant 

amenable to juvenile court treatment, the court denied the 

People’s transfer petition. In accord with our instructions to 

treat the firearm-assault conviction as a juvenile 

adjudication and impose an appropriate disposition, the 

court referred the matter to the probation department for a 

disposition report and scheduled a disposition hearing. In 

advance of the disposition hearing, the probation 

department submitted a report recommending that 

appellant be committed to the DJF. 
7

At the February 24, 2020 disposition hearing, counsel 

for both parties requested that the court commit appellant to 

the DJF. They represented that the maximum period of 

confinement was 24 years, comprising the four-year upper 

term on the firearm-assault conviction, a 10-year term on 

the firearm enhancement, and another 10-year term on the 

gang enhancement. Appellant’s counsel specifically 

represented that the gang enhancement “add[ed] 10 years,”

and the prosecutor concurred. 

The court declared appellant a ward of the court and, 

as recommended by the parties and the probation 

department, committed appellant to the DJF. On its signed

commitment order (Judicial Council Form JV-732), the court 

calculated the “maximum period of imprisonment that could 

be imposed on an adult convicted of the offense” as 24 years, 

comprising the four-year upper term and 10-year terms on 

both enhancements. It ordered that appellant’s maximum 

period of confinement was also 24 years (with 2385 days of 

credit for time served). The court attested that it was 

setting the maximum at 24 years “[a]fter having considered 

the individual facts and circumstances of the case under 

[Welfare and Institutions Code] section 731(c),” and 

acknowledged that it had discretion to order a shorter 

maximum. Appellant timely appealed. 

DISCUSSION

Appellant contends the court erred by relying on the 

gang enhancement to extend his maximum period of 
8

confinement by 10 years because (1) the correct length of the 

gang enhancement is five years; and (2) had he been 

sentenced as an adult, the sentencing court would have been 

required to stay the gang enhancement. The People agree. 

In his reply brief, appellant argues for the first time that we 

must remand for a new disposition hearing because (1) the 

court was unaware of its discretion to order a maximum 

period of confinement shorter than the maximum adult 

sentence; and (2) appellant has the right to present “new 

evidence based upon his behavior and change of 

circumstances while in lock-up.”

A. The Maximum Period of Confinement Must Be 

Reduced

As the parties agree, the juvenile court erred by relying 

on the gang enhancement to extend appellant’s maximum 

period of confinement by 10 years. “The court shall not 

commit a ward to the Division of Juvenile Justice for a 

period that exceeds the maximum term of imprisonment that 

could be imposed upon an adult convicted of the same 

offense.” (Welf. & Inst. Code, § 731, subd. (c); see also id., 

§ 726, subd. (d)(2) [defining “‘maximum term of 

imprisonment’” as used in section 731 to include proven 

sentence enhancements].) Here, had appellant been 

sentenced as an adult, the sentencing court would have been 

required to stay the five-year gang enhancement because it 

and the 10-year firearm enhancement arose from a single 

use of a firearm. (See People v. Le (2015) 61 Cal.4th 416, 
9

419-420; People v. Francis (2017) 16 Cal.App.5th 876, 

879-880.) Thus, the maximum adult sentence is 14 years, 

comprising the four-year upper term on the firearm-assault 

conviction (Pen. Code, § 245, subd. (a)(2)) and the 10-year 

firearm enhancement (id., § 12022.5, subd. (a)). Because 

appellant could not have been sentenced as an adult to more 

than 14 years, the court erred by ordering a maximum 

period of confinement in excess of 14 years.

B. We Need Not Remand for a New Disposition 

Hearing

Because the court chose to order the longest possible 

maximum period of confinement, we may correct its 

erroneous addition of 10 years to that maximum without 

remanding. (Cf. People v. Gastelum (2020) 45 Cal.App.5th 

757, 772-773 [where sentencing court imposes maximum 

possible sentence, plus erroneous enhancement, appellate 

court may strike enhancement without remanding]; People v. 

Winn (2020) 44 Cal.App.5th 859, 872-873 [same]; People v. 

Lopez (2019) 42 Cal.App.5th 337, 341-342 [same].) The court 

had discretion to order a maximum period of confinement 

shorter than the maximum adult sentence. (See Welf. & Inst. 

Code, § 731, subd. (c); In re A.G. (2011) 193 Cal.App.4th 791, 

806.) The court did not exercise this discretion, instead

choosing to set a 24-year maximum on the basis of its 

mistaken belief -- advocated by both parties -- that 24 years 

was the maximum adult sentence. It thereby clearly 

indicated it would have set a 14-year maximum had it 
10

known 14 years was the maximum adult sentence. We will

fulfill the court’s clearly indicated intent by ordering the 

maximum reduced to 14 years and affirming the judgment 

as so modified. 

Appellant forfeited his arguments for remand by failing

to raise them in his opening brief. (See People v. Bryant, 

Smith and Wheeler (2014) 60 Cal.4th 335, 408 [“‘It is 

axiomatic that arguments made for the first time in a reply 

brief will not be entertained because of the unfairness to the 

other party’”].)2 Rather than develop an argument for 

remand in his opening brief, appellant merely asserted that 

we “should” remand for a new disposition hearing, before 

asserting we should instead reduce the maximum period of 

confinement ourselves. He thereby deprived the People of 

notice of any need to argue remand is unnecessary. 

Accordingly, we deem appellant’s arguments for remand

forfeited. 

2 Appellant doubly forfeited the first of his reply brief’s 

arguments for remand -- that the juvenile court failed to exercise 

its discretion whether to order a shorter maximum period of 

confinement -- by failing to raise it in the juvenile court. (See In 

re Travis J. (2013) 222 Cal.App.4th 187, 201 [“Travis has 

forfeited any claim that the juvenile court erred in its selection of 

the [maximum period of confinement]. In juvenile court, as in an 

adult criminal proceeding, a claim that the court failed to make 

or articulate a discretionary sentencing choice must be raised by 

objection in the trial court in order to preserve the claim for 

appeal”].) 
11

In any event, we find both arguments without merit. 

First, appellant fails to show the juvenile court was unaware 

of its discretion to order a maximum period of confinement 

shorter than the maximum adult sentence. We begin with 

the presumption that the court knew of its discretion. (See 

In re Julian R. (2009) 47 Cal.4th 487, 498-499 [applying 

general presumption that trial courts know and follow 

applicable law to specifically presume, on silent record, that 

juvenile court understood and exercised its discretion in 

setting maximum period of confinement].) This presumption 

is bolstered by the court’s signature on Judicial Council 

Form JV-732, attesting that it had “‘considered the 

individual facts and circumstances of the case’” in ordering 

the maximum period of confinement, and acknowledging its

discretion to order a shorter maximum. (Cf. In re Julian R.,

supra, fn. 4 [“In light of newly revised Judicial Council form 

JV-732 requiring the juvenile court to acknowledge its 

consideration of the crime’s facts and circumstances

[citation], in the future a court’s exercise of its discretion will 

be evident” (italics omitted)].) Appellant fails to identify any

evidence sufficient to rebut the presumption and its 

supporting evidence.

Second, appellant cites no authority -- and we are 

aware of none -- supporting his position that we must 

remand merely because “there is no reason why appellant 

cannot argue, at a new disposition hearing, that based on his

[unspecified] post-commitment behavior he deserves less 

time.” Appellant cites cases supporting the proposition that 
12

where an adult defendant is resentenced, he is entitled to 

consideration of post-sentencing evidence. (See People v. 

Bullock (1994) 26 Cal.App.4th 985, 990; People v. Tatlis

(1991) 230 Cal.App.3d 1266, 1273-1274; Dix v. Superior 

Court (1991) 53 Cal.3d 442, 460; People v. Warren (1986) 179 

Cal.App.3d 676, 687; People v. Foley (1985) 170 Cal.App.3d 

1039, 1047-1049.) But those cases do not suggest that an 

adult defendant is entitled to resentencing in the first 

instance whenever a reviewing court finds sentencing error.

Moreover, because appellant’s cases concern adult 

sentencing, they provide little or no support for his demand 

for a new hearing on his maximum period of confinement as 

a ward of the juvenile court. (Cf. In re Christian G. (2007) 

153 Cal.App.4th 708, 714 [“In exercising its discretion 

whether to set the minor’s theoretical maximum term of 

physical confinement at less than the maximum term of 

imprisonment, the juvenile court is not required to follow the 

procedures applicable to adult sentencing”].) An adult 

defendant’s interest in a resentencing hearing is greater 

than appellant’s interest in a new hearing on his maximum 

period of confinement. In adult cases, a resentencing 

hearing may be the defendant’s only opportunity to secure 

earlier release on account of his post-sentencing 

rehabilitation, as resentencing allows the court to reduce the

defendant’s minimum term of incarceration. But here, the

juvenile court set no minimum period of confinement; the 

juvenile officials have an ongoing duty to discharge

appellant whenever his rehabilitation sufficiently mitigates 
13

public safety concerns.

3 (See Welf. & Inst. Code, § 1765, 

subd. (b) [juvenile officials “shall” discharge ward “as soon as 

in [officials’] opinion there is reasonable probability that he 

or she can be given full liberty without danger to the 

public”]; In re Christian G., supra, at 715 [“‘The adult sent to 

prison for the upper “term prescribed” will be confined for 

that specific period less any behavior-performance 

credits. . . . In contrast, to the juvenile, the “maximum” term 

is simply the outside time limit for a statutory program 

aimed directly at rehabilitation’”].)

In sum, appellant fails to identify any authority 

supporting his claim of entitlement to a new hearing on his 

maximum period of confinement. Having found no need for 

such a hearing, we decline to remand for one.

3 Moreover, unless the juvenile officials obtain an order for 

further confinement (requiring a new trial and proof beyond a 

reasonable doubt of a danger to public safety), they will be 

required to discharge appellant no later than when he reaches 

the age of 25. (See Welf. & Inst. Code, §§ 1769, subd. (d), 1801.5.) 

He will reach that age in April 2022 -- well in advance of the 

expiration of a 14-year maximum period of confinement. 
14

DISPOSITION

The judgment is affirmed as modified to reduce 

appellant’s maximum period of confinement to 14 years. The 

juvenile court shall issue an amended commitment order 

and forward it to the Department of Youth and Community 

Restoration.4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

 MANELLA, P. J.

We concur:

WILLHITE, J.

COLLINS, J.

4 The DFJ was replaced by the Department of Youth and 

Community Restoration during the pendency of this appeal (on 

July 1, 2020). (See 16 Witkin, Summary of Cal. Law (11th ed. 

2020) Juvenile Court Law, § 840; Welf. & Inst. Code, § 1710, subd. 

(a) [“Any reference to . . . the Division of Juvenile Facilities . . . in 

this or any other code refers to the Department of Youth and 

Community Restoration”].)