Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. TJ18757, Catherine J. Pratt, Commissioner (pursuant to Cal. Const., art. VI, § 21).
Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jason C. Tran and David C. Cook, Deputy Attorneys General, for Plaintiff and Respondent.
MOSK, Acting P. J.
INTRODUCTION
The District Attorney of Los Angeles County filed a petition alleging that defendant and appellant D.M. came within the provisions of Welfare and Institutions Code section 602 because he committed the felony offense of second degree robbery in violation of Penal Code section 211. The juvenile court found the allegation true and placed D.W. on home probation. The minute order for the adjudication hearing states that the juvenile court set a maximum period of physical confinement at five years.
On appeal, D.M. contends that the juvenile court erred in setting a maximum period of physical confinement because he was placed at home on probation and not ordered confined in the California Youth Authority. We hold that D.M. is not subject to a maximum period of physical confinement because he was placed on home probation, and the order imposing the five year maximum period of physical confinement is of no legal effect. Accordingly, there is no need to strike that provision.
We dispense with a recitation of the facts concerning the robbery as the issue on appeal addresses only the disposition and not D.M.’s substantive offense.
The Maximum Period Of Physical Confinement
D.M. contends that the juvenile court erred in setting a maximum period of physical confinement because he was placed at home on probation and not ordered confined in the California Youth Authority. We hold that it was error to set a maximum period of physical confinement, but that the error is harmless because the order imposing the maximum period of confinement is of no legal effect.
Welfare and Institutions Code 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.” (Italics added.) “‘Physical confinement’ means placement in a juvenile hall, ranch, camp, forestry camp or secure juvenile home pursuant to Section 730, or in any institution operated by the Youth Authority.” (Ibid.) A maximum period of physical confinement may not be set when a juvenile is placed on home probation in his parents’ custody. (In re Ali A. (2006) 139 Cal.App.4th 569, 573-574.) Because the juvenile court placed D.M. on home probation, the five year maximum period of physical confinement reflected in the minute order placing D.M. on probation is error. However, because that part of the probation order that set a maximum period of physical confinement is without legal effect, D.M. is not prejudiced by its presence in the probation order, and we need not reverse or remand in this case for the provision to be stricken. (Id. at p. 574.)
DISPOSITION
The order placing D.M. on probation is affirmed. The provision setting a maximum period of physical confinement is of no legal effect.
We concur: KRIEGLER, J., KUMAR, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.