In re Byron B.

Filed 8/22/08 In re Byron B. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

APPEAL from an order of the Superior Court of Los Angeles County, S. Robert Ambrose, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Affirmed and modified.

Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Stephanie C. Brenan, Deputy Attorneys General, for Plaintiff and Respondent.

The juvenile court found that appellant Byron B. was a person described in Welfare and Institutions Code section 602, based upon a sustained finding that Byron committed a second degree robbery in violation of Penal Code section 211. Byron was declared a ward of the court and ordered home on probation with specified probationary conditions.

In his timely appeal, Byron challenges selected probation conditions and further argues that the minute order from the disposition hearing is inconsistent with the oral pronouncement of judgment. We affirm the wardship order, but modify the judgment and order the minute order corrected.

FACTS

On the afternoon of May 23, 2007, 15-year-old Fernanda was walking home while listening to her MP3 player, which was in her pocket. She turned around and saw Byron and three other boys running toward her from behind. When Fernanda looked at them, the boys stopped running. As she kept walking, she felt Byron hit her in the rear left shoulder blade, causing her to fall to the ground. As she fell, Byron took her earphones, disconnecting them from her MP3 player, and walked away. After Byron walked away, the three other boys approached the fallen Fernanda. One of the three, Lamar, took the MP3 player out of Fernandas pocket and the three walked away.^[1]

DISCUSSION

Byron argues that (1) the minute order designating probation conditions (specifically, Nos. 9, 15, 26, and 28) must be corrected because it contains probation conditions that were not orally imposed by the court at the disposition hearing, (2) the probation condition prohibiting appellant from associating with witnesses is unconstitutionally vague and overbroad, and (3) the order setting a maximum confinement term of five years must be stricken because he was ordered home on probation and not removed from his mothers physical custody.

The Disposition Hearing

At the disposition hearing, the court placed Byron at home on probation and orally outlined the probation conditions. Four conditions are at issue.

The juvenile court orally ordered: Go to school. Dont miss school. Dont be late to school. Go to every class. You are to notify your probation officer of any changes in address, school or school schedule. Do your best to get As, Bs, and Cs. The minute order pertaining to schooling reads as follows: 9. Attend a school program approved by the Probation Officer. Maintain satisfactory grades and attendance, and citizenship. Promptly notify Probation Officer of every absence. (CT 83.)

In regards to limiting Byrons association with others, the court ordered: You are not to associate with anyone your mom says no to . . . or probation says no to . . . . You may go to the same school, but you are going to stay away from [Lamar, Adon, and Earl].^[2] The minute order provided as follows: 15. Do not associate with co-minors[,] anyone known to be disapproved by parents[,] Probation Officer.

As to psychiatric and psychological testing or treatment, the court ordered: You are to cooperate in a plan for psychiatric, psychological testing or treatment only if deemed necessary by probation. However, the minute order noted: 26. Cooperate in a plan for psychiatric, psychological testing or treatment.

Regarding restitution, the court ordered: [I]f there is any restitution [for the MP3 player], the minor is going to be responsible, and I am not implying there is any. On the other hand, the minute order stated: 28. Make reparation on all related losses as determined by the Probation Officer, including a service charge as authorized by [section] 276(c) [of the Welfare Institutions Code]. According to the probation report, the police recovered the victims MP3 player.

Finally, the court committed Byron to the custody of his mother under the supervision of a probation officer, without orally stating a period of maximum confinement. The minute order indicated Byrons maximum period of confinement was fixed at five years.

Discrepancy Between the Oral Pronouncement and the Minute Order from theDisposition Hearing

The reason for requiring a minute entry of the judgment in a criminal case is to furnish a concise record showing the crime of which the defendant has been convicted and the punishment imposed, which will protect him against a subsequent prosecution for the same offense. [Citations.] (People v. Zackery (2007) 147 Cal.App.4th 380, 386.) Entering the judgment in the minutes being a clerical function (Pen. Code, 1207), a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error. (People v. Mesa (1975) 14 Cal.3d 466, 471.) Thus, [w]here there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. [Citations.] (People v. Zackery, supra, at p. 385.)

The condition of probation pertaining to school (condition No. 9), reasonably reflects the oral pronouncement of judgment. We can discern no purpose in modifying this provision. Both the oral pronouncement and minute order require Byron to attend school, maintain satisfactory grades, and keep the probation officer advised of school-related issues.

Condition No. 15 is a different matter. The court ordered Byron specifically not to associate with Lamar, Adon, and Earl. The minute order is more expansive, and arguably vague, to the extent it ordered Byron not to associate with the co-minors and anyone known to be disapproved of by parents and probation officer. The minute order must be modified to refer to the three specific minors in place of the broader description.

According to the minute order (condition No. 26), Byron was required to cooperate in a counseling program. The court, however, left it to the probation officer to decide whether counseling was necessary. The minute order must be corrected to condition the counseling requirement on the direction of the probation officer.

As to the restitution condition, there is a significant discrepancy between the oral judgment and the minute order that requires correction. The court orally ordered restitution for the MP3 player if appropriate, presumably leaving that determination to the probation officer. However, no service charge was mentioned. The minute order required Byron to [m]ake reparation on all related losses as determined by the Probation Officer, including a service charge as authorized by [section] 276[, subdivision] (c) [of the Welfare and Institutions Code]. Not only did the court fail to mention a service charge in pronouncing judgment, there is nothing in the language of Welfare and Institutions Code section 276, subdivision (c), that pertains to a service charge. The statute merely authorizes the probation officer to receive money from a juvenile probationer, deposit it in an authorized account, and direct the disbursement of the funds. The minute order must be corrected to delete reference to a service charge under Welfare and Institutions Code section 276, subdivision (c).

Association Condition

Condition No. 17 proscribed Byron from contacting or associating with the victim(s) or witness(es) of any offense alleged against [him]. The Attorney General concedes that the probation condition prohibiting Byron from associating with witnesses to the robbery is unconstitutionally vague and overbroad in the absence of a knowledge requirement as to the identity of those persons. (See In re Sheena K. (2007) 40 Cal.4th 875, 890-891 [probation condition prohibiting association with anyone disapproved of by probation officer was impermissibly vague in absence of requirement of a knowledge requirement].) We therefore order the condition modified to prohibit association with persons Byron knows were witnesses to the robbery.

The Maximum Confinement Period

The juvenile court did not orally announce a maximum term of confinement. However, the minute order states: Minor may not be held in physical confinement for a period to exceed 5 years. Byron contends the maximum period of confinement must be stricken. We agree.

Welfare and Institutions Code section 726, subdivision (c), provides: If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made 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. Physical confinement means placement in a juvenile hall, ranch, camp, forestry camp or secure juvenile home pursuant to [Welfare and Institutions Code] Section 730, or in any institution operated by the Youth Authority. (Welf. & Inst. Code, 726, subd. (c).) By its express terms, however, [Welfare and Institutions Code] section 726[, subdivision] (c) applies only [i]f the minor is removed from the physical custody of his or her parent or guardian . . . . (In re Ali A. (2006) 139 Cal.App.4th 569, 573.)

Because the trial court did not orally fix a maximum period of confinement, and was not required to do so by statute, we order the minute order be modified to delete it. Once again, the minute order does not accurately reflect the oral pronouncement of judgment and must be corrected.

It is true that in Ali A. the appellate court found no prejudice when the trial court fixed a maximum period of confinement although the minor was released home on probation. (In re Ali A., supra, 139 Cal.App.4th at pp. 572-574.) In re Ali A. is distinguishable, however, because here the trial court did not orally fix a maximum period of confinement. The maximum period of confinement was never determined by the trial court, its entry in the minute order is not authorized, and it must be deleted.

DISPOSITION

The juvenile court is ordered to modify the minute order, dated October 16, 2007, as follows: (1) in condition No. 15, the minute order shall specify that Byron is not to associate with Lamar, Adon, and Earl; (2) in condition No. 26, the minute order shall reflect that the Byron shall participate in counseling only if deemed necessary by the probation officer; (3) in condition No. 17, the minute order must reflect that Byron may not associate with persons he knows were witnesses to the robbery; and (4) in condition No. 28, the service charge under Welfare and Institutions Code section 276, subdivision (c) is stricken. Finally, the maximum period of confinement set forth in he minute order is ordered stricken. In all other respects, the judgment is affirmed.

KRIEGLER, J.

We concur:

TURNER, P. J. ARMSTRONG, J.

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^[1] The court also found that Lamar, a minor who is not a party to this appeal, committed a robbery.

^[2] The juvenile court dismissed the petitions alleging robbery against minors Adon and Earl.