Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. FJ37763, Morton Rochman, Judge.
Kiana Sloan-Hillier, 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, Paul M. Roadarmel, Jr., and Nancy G. James, for Plaintiff and Respondent.
WILLHITE, J.
David R. appeals from an order of wardship (Welf. & Inst. Code, § 602) upon a finding that he committed a second degree robbery in violation of Penal Code section 211. He was placed home on probation, the maximum period of confinement was ordered not to exceed five years and eight months and he was given predisposition credit of 16 days. He contends the case should be remanded to the juvenile court to recalculate his predisposition custody credits and to strike the maximum term of confinement. For reasons stated in the opinion, we modify the order of wardship by striking the calculation of appellant’s theoretical maximum term of confinement and, as modified, affirm the order of wardship.
Previously, appellant admitted that he had committed vandalism with damage over $400. (Pen. Code, § 594, subd. (a).)
FACTUAL AND PROCEDURAL SUMMARY
On January 20, 2006, appellant was a special education student at Valley High School in Van Nuys, and Shirley Giacoman was his homeroom teacher. On that date, Ms. Giacoman asked appellant several times to begin working, but he refused. He cursed and got angry and upset and stated he would get started soon. When Ms. Giacoman saw appellant get agitated, she left the room. Upon returning, she learned the teacher’s assistant had sent appellant to detention for writing “Fuck Shirley” on the board.
Ms. Giacoman had a system where she gave monetary rewards for attendance and completion of assignments. Appellant became agitated when she gave money to another student and told appellant she was going to hold his money until the end of the school day. When appellant became agitated, Ms. Giacoman again stepped out of the classroom. She was taught to leave the classroom when a student got agitated. While Ms. Giacoman walked toward the office, she heard appellant say, “‘It’s fucking not fair. It’s my money. I’m entitled to it. You know, I’m going to teach her a lesson, you know, with the money.’” Ms. Giacoman turned around, and appellant pushed her against the wall and grabbed the bag of money she was carrying. In fear, Ms. Giacoman let appellant have the bag, and he ran out of the building.
Derek Morris, a teacher’s assistant, was in the school’s parking lot and saw appellant “jogging out” of the school grounds, looking “a little frantic.” Others were calling his name and when Mr. Morris called to appellant, appellant came to him. Appellant was holding a gray bank bag used to hold the money given to students as their weekly cash-out reward. When Mr. Morris asked appellant what he was doing, appellant said, “I messed up” and asked Mr. Morris to please take the bag. Appellant gave Mr. Morris the bag and then left.
DISCUSSION
I
Relying on Penal Code section 2900.5, appellant contends the juvenile court is required to calculate and give credit for the number of predisposition days in custody. During the disposition hearing, the court asked appellant how many days he spent in juvenile hall and appellant stated 16 days. Appellant now calculates he was in custody for 17 days.
Penal Code section 2900.5 provides in pertinent part: “(a) In all felony and misdemeanor convictions . . . when the defendant has been in custody, including . . . juvenile detention facility . . . all days of custody of the defendant . . . shall be credited upon his or her term of imprisonment, or credited to any fine on a proportional basis . . . .”
Respondent asserts Penal Code section 2900.5, does not apply to juveniles and, in any event, appellant received no term of confinement to which credits could be applied. In In re Eric J. (1979) 25 Cal.3d 522, the California Supreme Court analyzed section 2900.5 regarding its applicability to juvenile proceedings. It concluded, “that, in order to carry out the mandate of [Welfare and Institutions Code]section 726, subdivision (c), that a juvenile ‘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 same offenses, appellant must be given precommitment credit for the . . . days he was detained in juvenile hall pending resolution of these charges.” (Id. at p. 534.) In the present case, apart from the fact that the applicability of Penal Code section 2900.5 for juveniles has been subject to uncertainty (see In re Ricky H. (1981) 30 Cal.3d 176, 186), no confinement was ordered for appellant and no credits may be applied.
II
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.” Here, appellant was not removed from the physical custody of his parent and reference to a maximum period of confinement was improper. (See In re Ali A. (2006) 139 Cal.App.4th 569, 574.) Accordingly, the order of wardship should be modified to strike any mention of a maximum period of confinement.
DISPOSITION
The order of wardship is modified by striking the juvenile court’s calculation of appellant’s maximum theoretical period of confinement and, as modified, the order of wardship is affirmed.
We concur: EPSTEIN, P.J., MANELLA, J.