In re John R.
Filed 8/22/12 In re John R. CA2/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
ONE
In re JOHN R., a Person Coming
Under the Juvenile Court Law.
B236523
(Los Angeles
County
Super. Ct.
No. FJ49207)
THE PEOPLE,
Plaintiff and Respondent,
v.
JOHN R.,
Defendant and Appellant.
APPEAL from
an order of the Superior Court
of
County, Robin Miller Sloan, Judge. Affirmed as modified.
Bruce G. Finebaum, under appointment by
the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney
General, and Analee J. Brodie, Deputy Attorney General, for Plaintiff and Respondent.
Appellant
John R. was adjudged a ward of the court pursuant to Welfare and Institutions
Code section 602,
title="">[1]
and ordered home on probation. He
contends the juvenile court erred in setting the maximum term of confinement
because he was committed to the custody of his parents. We agree, and modify the dispositional order
to strike any reference to the maximum term of confinement.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
At about 8:30 p.m. on May 13, 2011, Edwin Ixquir was near an alleyway talking on
his cell phone. Appellant approached
Ixquir on a bicycle and held a four inch long knife to Ixquir’s hand. Appellant told Ixquir in English and Spanish
to give him the cell phone or that he would take it from him, adding that he
would cut off Ixquir’s hand if he did not comply. Ixquir let go of the phone and appellant took
it.
On July 22, 2011, the Los Angeles County
District Attorney’s Office filed a juvenile wardship petition pursuant to
section 602. The petition alleged that appellant committed the crime of
and further alleged that in the commission of the robbery appellant personally
used a deadly and dangerous weapon, a knife (Pen. Code, § 12022, subd. (b)(1)). Appellant denied the allegation the same day.
On September 27, 2011, the juvenile
court heard the adjudication. The court
sustained the petition as to the robbery, but found the weapon allegation not
true and dismissed it. The court
declared the offense to be a felony and appellant to be a person described by
section 602 and a ward of the court. The
court ordered appellant be placed home on probation, declared the maximum
period of confinement to be five years, and gave appellant one day of predisposition
custody credit. Appellant timely
appealed.
Appellant
argues that the juvenile court’s order should be corrected to delete any
reference to a maximum term of confinement for appellant’s disposition of home
on probation because section 726, subdivision (c), providing for the imposition
of a maximum term of confinement, does not apply to him. Respondent argues that pursuant to
(Ali A.), a juvenile court’s order
erroneously setting the maximum term of confinement for a minor home on
probation has no legal effect, and thus the dispositional order should be
affirmed.
We agree
with appellant that section 726, subdivision (c) does not apply in this
case. Section 726 provides that “[i]f
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.” (§ 726, subd. (c).) By its express terms, section 726,
subdivision (c) does not apply to appellant because he was never removed from
the physical custody of his parents. In
other words, when a juvenile is committed to the custody of his parents, the
juvenile court is not statutorily required to include a maximum term of
confinement in its dispositional order.
(In re Matthew A. (2008) 165
Cal.App.4th 537, 541 (Matthew A.);
at p. 573.)
In
appellant . . . a ward of the court after finding that he
had committed a first degree burglary . . . [and] placed
appellant home on probation, and set a maximum term of confinement of six
years.” (Id. at p. 539.) Reasoning
that “the necessary predicate for specifying a term of imprisonment” did not
exist because the “[a]ppellant was not removed from his mother’s physical
custody,” the court struck the specification of a term of imprisonment from the
order. (Id. at p. 541.) In other
words, “[t]he statute did not empower the court to specify a term of imprisonment.” (Ibid.) In Matthew
A., this district noted that while courts specifying a maximum term of
confinement in such cases “may have the best of reasons, such as ‘sending a
message’ to the juvenile that the transgression was serious,” “if the Legislature
thought that this should be done, it would have been easy to write the statute
to permit this practice.” (
Matthew A., supra, 165 Cal.App.4th 537 is directly applicable to the instant
case. Even though appellant was not
removed from his parents’ custody, the juvenile court specified a maximum term
of confinement. As the juvenile court
had no statutory authority to do so, the maximum term should be stricken from
the order. Nonetheless, in
569, the juvenile court “sustained a charge of attempted robbery against the
minor, declared him a ward of the court, and committed him to the custody of
his parents under the supervision of a probation officer.” (Id. at
p. 571.) At the end of the
disposition hearing, the court stated that “‘[t]he maximum confinement term is
three years,’” and held that section 726, subdivision (c) did not apply. (Ali A.,
at pp. 572–573.) However, although the
Third Appellate District in Ali A. recognized
that “the maximum term of confinement contained in the current dispositional
order is of no legal effect,” it reasoned that the minor was not prejudiced by
the inclusion of the maximum term of confinement, and affirmed the juvenile
court’s order. (Id. at p. 574.)
Although Ali A., supra,
circumstances similar to the instant case, we find the reasoning in
is entitled to a dispositional order that accurately reflects the punishment
that may legally be imposed upon him at the time of disposition.
The order of wardship is modified by striking the order
setting a five-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.
JOHNSON,
J.
We concur:
MALLANO, P. J.
CHANEY, J.
name="_ftn1" title="">[1]
All statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
