In re Diana C.

Filed 2/25/08 In re Diana C. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County. Morton Rochman, Judge. Modified with directions and affirmed.

Courtney M. Selan, 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, Assistant Attorney General, Margaret E. Maxwell and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.

________________

Diana C. appeals from the order declaring her a ward of the juvenile court (Welf. & Inst. Code, 602)^[1]following a finding that she committed vandalism causing damage over $400, a felony. (Pen. Code, 594, subd. (a).) She was placed on probation and the maximum term of confinement was set at three years. She contends that the maximum term of confinement must be stricken because she was not committed to the California Youth Authority (CYA)^[2]but was ordered home on probation. We order the maximum term of confinement stricken.

FACTS AND PROCEDURAL BACKGROUND

The evidence established that on June 13, 2004, appellant was observed striking the side of a vehicle with a baseball bat. As a result, the windshield was cracked and the side of the vehicle was dented and scratched. The cost to repair the vehicle was over $4,400.

The juvenile court found true the allegation that appellant committed felony vandalism. The court ordered appellant, who was 20 years of age at the time of the dispositional hearing, to pay $4,400 in restitution. The court placed appellant on probation and stated that the maximum confinement period was three years.

DISCUSSION

Relying upon In reDanny H. (2002) 104 Cal.App.4th 92 (Danny H.) and In reAli A. (2006) 139 Cal.App.4th 569 (Ali A.), appellant contends that the three-year maximum term of confinement should be stricken because she was placed home on probation and was not ordered confined in the CYA. Respondent argues that pursuant to Ali A., because the juvenile courts order setting the maximum term of confinement has no legal effect, the order under review should be affirmed. We agree with appellant.

In Danny H., supra, 104 Cal.App.4th 92, the minor was placed at home on probation. The reviewing court declined to address a Penal Code section 654 issue relating to his theoretical maximum term of confinement, stating that there was no need to decide the issue or to correct the maximum term of confinement because the juvenile court was not required to specify a maximum term of confinement when the minor was not removed from the physical custody of his parents. (Danny H., supra, at p. 106.)

In Ali A., supra, 139 Cal.App.4th 569, the minor was placed in the custody of his parents under the supervision of a probation officer, and the juvenile court set the maximum confinement term at three years, the upper term for the offense. The minor contended that the juvenile court failed to exercise its discretion in setting the maximum term of physical confinement pursuant to section 731, subdivision (b), because that section permits the juvenile court to set the maximum term of confinement at less than the highest of the three statutory terms for the offense.^[3] The reviewing court rejected the minors contention, observing that this provision of section 731, subdivision (b) applies only to commitments to the CYA. (Ali A., supra, 139 Cal.App.4th at pp. 572-573.)

The Ali A. court continued, Given that the juvenile court did not commit the minor to the CYA, one may well ask why the [juvenile] courts dispositional order included a maximum term of confinement. (Ali A., supra, 139 Cal.App.4th at p. 573.) The court concluded that since the minor had not been committed to the CYA or removed from the custody of his parents, and therefore neither section 731, subdivision (b) nor section 726, subdivision (c)^[4]was applicable, the juvenile court had no discretion ‑‑ or was not required ‑‑ to set a maximum term of confinement. (Ali A., supra, at pp. 571, 573.)

The Ali A. court simply affirmed the order of probation. The court stated that the maximum term of confinement contained in the dispositional order was of no legal effect until such time as the minor violated probation, a section 777 hearing was held, and the court modified the current disposition and removed him from his parents custody, at which time the juvenile court would have to set and/or declare a maximum term of confinement in accordance with section 726, subdivision (c) and, if applicable, section 731, subdivision (b). (Ali A., supra, 139 Cal.App.4th at pp. 573-574.) Concluding that the minor was not prejudiced by the presence of [the maximum confinement] term, the court held that there was no basis for reversal or remand in this case. (Id. at p. 574.) In this regard, the court noted, The minor suggests that if this maximum term of confinement is not stricken and he is later committed to the CYA, the judge responsible for that disposition may believe he or she is required to impose the three-year maximum term contained in the present order. We trust that will not occur, as this opinion will be part of the file in this proceeding, and we have made it clear that the maximum term of confinement in the present order is of no legal effect. (Id. at p. 574, fn. 2.)

We agree with appellant that the maximum term of confinement must be stricken. While, as the Ali A. court observed, no remand or reversal is required, appellant is entitled to a dispositional order that accurately reflects the punishment imposed upon her at the time of the dispositional hearing. Not only is the setting of a maximum term of confinement not required where, as here, a minor is not removed from the physical custody of his or her parents, but, should future proceedings result in a commitment to the Division of Juvenile Facilities, the maximum term of confinement gratuitously set at the time probation is granted may not be the term ultimately imposed. ( 731, subd. (b).) Rather than trusting or assuming that a future court will refer to an appellate opinion contained in the file if further proceedings occur upon violation of probation, we believe the better practice is to strike the order setting a maximum term of confinement.

DISPOSITION

The order of wardship is modified by striking the order setting a three-year maximum term of confinement. In all other respects, the order of wardship is affirmed. The juvenile court is directed to correct the minute order of the disposition hearing accordingly.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______________, P. J.

BOREN

We concur:

____________________, J.

ASHMANN-GERST

____________________, J.

CHAVEZ

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] Effective July 1, 2005, the CYA was redesignated the Department of Corrections and Rehabilitation, Division of Juvenile Facilities. ( 1710, subd. (a).)

^[3] Section 731, subdivision (b), as modified effective January 1, 2004, provides, in pertinent part, that [a] minor committed to the Department of the Youth Authority . . . may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court . . . .

^[4] Section 726, subdivision (c) provides, in pertinent part, 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 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.