Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. KJ30225, Daniel S. Lopez, Judge. Modified and, as so modified, affirmed.
Holly Jackson, 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, Paul M. Roadarmel and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
G.A. appeals from the order of wardship (Welf. & Inst. Code, § 602) entered following the juvenile court’s determination that he committed battery on a school employee (Pen. Code, § 243.6), committed vandalism causing less than $400 in damage (Pen. Code, § 594, subd. (a)), and resisted a peace officer (Pen. Code, § 148, subd. (a)(1)). All three crimes were declared to be misdemeanors. The petition arose as the result of a May 1, 2007 incident in which 13-year-old G.A. struggled with a Youth Service Worker and a Baldwin Park School District Officer who had been summoned to G.A.’s residence to take him to school. The juvenile court ordered G.A. to serve 20 days in juvenile hall, but awarded him 20 days credit for time served; accordingly, at the hearing it placed him home on probation. It also imposed a $50 restitution fine. Although the juvenile court did not state, at the hearing, that it was imposing a maximum term of confinement, the court’s minute order reflects a maximum confinement period of one year, four months.
Because the details surrounding the offenses are not directly relevant to the issue presented on appeal, we do not discuss them here.
G.A.’s sole contention on appeal is that, because he was placed home on probation and because the juvenile court did not set a maximum term of confinement at the hearing, the minute order must be modified to omit the maximum term of confinement. We agree, and order the maximum term of confinement stricken. In all other respects, we affirm.
DISCUSSION
The parties agree that, because the juvenile court ordered G.A. home on probation, the court lacked discretion to set a maximum term of confinement. 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.” Where a minor is placed in his parent’s custody, however, the juvenile court lacks discretion to set a maximum term of physical confinement. (In re Ali A. (2006) 139 Cal.App.4th 569, 571.) “When a juvenile ward is allowed to remain in his parents’ custody, there is no physical confinement and therefore no need to set a
maximum term of confinement. Consequently, the maximum term of confinement
included in [a] dispositional order . . . is of no legal effect.” (Ibid.; see also In re Danny H. (2002) 104 Cal.App.4th 92, 106 [“Only when a court orders a minor removed from the physical custody of his parent or guardian is the court required to specify the maximum term the minor can be held in physical confinement”].)
At the dispositional hearing, the court did commit G.A. to serve 20 days in juvenile hall. However, the court also awarded him credit for 20 days time served. Under these circumstances, G.A. was not removed from the physical custody of his parent as the result of the order of wardship. (See Welf. & Inst. Code, § 726, subd. (c).) Accordingly, under Welfare and Institutions Code section 726, the juvenile court lacked discretion to set a maximum term of confinement.
Nonetheless, the People contend we should not order the minute order corrected. They point out that Ali A. further reasoned that, when a juvenile is not physically confined, he or she suffers no harm when his or her maximum period of confinement is determined erroneously. “In the event the minor violates the terms of his probation, a further noticed hearing will have to be held before he is subjected to a modified disposition removing him from his parents’ custody. [Citation.] If that happens, then at that time the juvenile court will have to comply with section 726(c) and, if applicable, section 731(b) in setting and/or declaring the maximum term of physical confinement. In
the meantime, the maximum term of confinement contained in the current dispositional order is of no legal effect. Because the minor is not prejudiced by the presence of this term, there is no basis for reversal or remand in this case.” (In re Ali A., supra, 139 Cal.App.4th. at pp. 573-574, fn. omitted; see also In re Danny H., supra, 104 Cal.App.4th at p. 106 [there is no need to correct the trial court’s order calculating minor’s maximum theoretical period of confinement when the minor has not been ordered removed from parent’s custody].)
However, in the instant case the juvenile court did not orally impose the maximum period of confinement when pronouncing judgment. Given that the court lacked discretion to set a maximum confinement period because G.A. was ordered home on probation, and the juvenile court did not purport to set the confinement period when orally pronouncing judgment, it appears that the minute order’s inclusion of the maximum confinement period is a clerical error. Where a minute order or abstract of judgment differs from the court’s oral pronouncements, the minute order does not control. (People v. Mitchell (2001) 26 Cal.4th 181, 185; People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Walz (2008) 160 Cal.App.4th 1364, 1367, fn. 3; People v. Price (2004) 120 Cal.App.4th 224, 242 [“Any discrepancy between the minutes and the oral pronouncement of a sentence is presumed to be the result of clerical error”].) Clerical errors may be corrected by this court on appeal. (People v. Mitchell, supra, at p. 185; People v. Garcia (2008) 162 Cal.App.4th 18, 24, fn. 1.) Accordingly, we order the minute order corrected to omit the maximum term of confinement.
DISPOSITION
The maximum term of confinement is ordered stricken from the minute order. In all other respects, the judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.