In re O.R.
Filed 1/10/13 In
re O.R. CA2/3
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 THREE
In re O.R., a Person Coming Under the
Juvenile Court Law.
B239584
(Los Angeles County
Super. Ct. No. PJ48623)
THE PEOPLE,
Plaintiff
and Respondent,
v.
O.R.,
Defendant
and Appellant.
APPEAL from a judgment of the Superior Court of
County, Morton Rochman, Judge.
Modified, and as modified, affirmed.
Adrian K. Panton, 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, Assistant
Attorney General, Steven D. Matthews and Analee J. Brodie, Deputy
Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
The
juvenile court sustained a petition filed under Welfare and Institutions Code
section 602 alleging two counts of second
degree robbery against minor and appellant O.R. Although he was ordered home on probation,
the court set a maximum term of confinement.
Because that term of confinement has no legal effect, we modify the
judgment by striking the term of confinement, and we affirm the judgment as
modified.
BACKGROUND
I. Factual background.
On November 23, 2011, Carlos Velasquez was at a
high school playing soccer with his friend, Aaron Berger. The minor asked them for money so that he
could get a ride home, but Velasquez said he didn’t have any cash. After engaging in some small talk, the minor
walked away but he returned with two men, one of whom held a knife. The minor told Velasquez and Berger to turn
over anything they had. Berger gave them
a phone and cash, and Velasquez gave them his phone and keys. The minor and his companions drove away in
Velasquez’s car. Police officers later
saw the minor in Velasquez’s stolen car.
II. Procedural background.
On October 25, 2011, a petition under Welfare
and Institutions Code section 602 was filed alleging two counts of second
degree robbery (Pen. Code, § 211). On March 1, 2012, the juvenile court
sustained the petition and set the maximum term of confinement at six years
four months. The minor was declared a
ward of court and ordered home on probation.
DISCUSSION
I. The maximum term of confinement must be stricken.
The minor
correctly contends that the maximum term of confinement should be
stricken. Under section 726, subdivision
(c) of the Welfare and Institutions Code, an order of wardship shall specify
the maximum term of imprisonment, if the minor is removed from the physical
custody of his or her parent or guardian.
Where, as here, the minor is not removed
from his guardian’s physical custody but the court nonetheless sets a maximum
term of confinement, the term has “no legal effect.†(In re
Ali A. (2006) 139 Cal.App.4th 569, 574.)
The three-year maximum time of confinement must therefore be stricken
from the disposition.
name="_ftnref1" title="">[1] (In re
Matthew A. (2008) 165 Cal.App.4th 537, 541-542; but see
unnecessary to strike the term of confinement].)
II. Custody credits.
At the
disposition hearing, the juvenile court did not specify how many days of credit
were awarded and instead ordered the probation department to calculate
them. The minor now contends he is
entitled to 134 days of custody credits. A minor, however, “is entitled to credit
against his or her maximum term of confinement for the time spent in custody
before the disposition hearing.†(
1058, 1067; see also Welf. & Inst. Code, § 726, subd. (c).)
improperly imposed and is being stricken, the minor is not entitled to custody
credits.
DISPOSITION
The judgment is modified to strike
the six years four months maximum term of confinement, and the judgment is
affirmed as modified.
NOT TO BE PUBLISHED
IN THE OFFICIAL REPORTS
ALDRICH,
J.
We concur:
CROSKEY,
Acting P. J.
KITCHING,
J.
we strike the term of confinement, we need not address the minor’s additional
contention that it should have been six years rather than six years four
months.
cited by the minor as support for his position he is entitled to custody
credits, is not on point. The minor in
between placements, and therefore he was entitled to credit for the time spent
in juvenile hall.
