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Name: In re Antonio P.
Case #: F051743
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 08/08/2007
Subsequent History: 10/24/07: Revw. Granted S156335

Regardless of whether Cunningham applies to juvenile cases, the calculation of the minor’s maximum period of confinement comprised in part on the upper term for the felony adjudication was proper because it was based on recidivism, a constitutionally permissible factor in Cunningham.

The juvenile court committed the minor to the Department of Juvenile Justice and set the maximum period of confinement at four years and four months, consisting of, inter alia, the upper term for the felony offense. In exercising its discretion, the juvenile court relied on the many unsuccessful attempts to rehabilitate the minor. The minor argued that after Cunningham, the maximum term became the middle term, and not the upper term as specified in Welfare and Institutions Code section 726, subdivision (c). The Court of Appeal declined to reach the contention because it noted that under Cunningham, there is no Sixth Amendment violation where, as here, the trial court relies on recidivism.