Opinion
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. JW106467
RIVERA, J.
Minor S.R. appeals a dispositional order of the juvenile court declaring him a ward and removing him from his parents’ custody. We shall remand the matter to the juvenile court to determine the maximum term of Minor’s confinement, and otherwise affirm.
I. BACKGROUND
The District Attorney filed a juvenile wardship petition (Welf. & Inst. Code, § 602, subd. (a)) on September 8, 2010 (the September petition). On October 21, 2010, the juvenile court found Minor had committed misdemeanor assault (Pen. Code, § 240), and misdemeanor vandalism (Pen. Code, § 594, subd. (b)(1)), and placed Minor on probation. The juvenile court did not declare Minor a ward of the court. Minor appealed, and on June 2, 2011, we affirmed the juvenile court’s order. (In re S.R. (June 2, 2011, A130271) [nonpub. opn.].)
All undesignated statutory references are to the Welfare and Institutions Code.
A second juvenile wardship petition was filed in the same case number on December 15, 2010 (the December petition), alleging Minor had committed two counts of second degree robbery, in that he had taken cell phones from two victims (Pen. Code, §§ 211 & 212.5, subd. (c)) (counts one and two), and one count of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) (count three). Minor was detained. He moved for release on home detention. The probation officer objected to the motion, pointing out that Minor had violated a court order by having police contact. He also noted that a recommendation had been made at a December 22, 2010, hearing that Minor “become a 602 WIC based on the minor’s previous and current offense.”
The facts underlying the two petitions are not relevant to the issues on appeal.
Pursuant to a negotiated disposition, Minor admitted count one of the December petition, amended to allege one count of grand theft from the person of another. (Pen. Code, § 487, subd. (c).) The trial court found count one true as amended, and found Minor came within the provisions of section 602. During the December 23, 2010, hearing, the prosecutor stated he calculated the maximum term of confinement as three years six months, and the court told Minor he could be kept in custody for that length of time.
After a dispositional hearing held on January 26, 2011, the juvenile court stated that it had two petitions before it. It found that Minor’s welfare required that he be removed from his parents’ physical custody, declared him a ward of the court, and placed him in out-of-home placement.
II. DISCUSSION
Minor contends the juvenile court erred in setting the maximum term of confinement by aggregating the terms for the sustained offenses based on the September and December petitions. 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. [¶]... [¶] If the court elects to aggregate the period of physical confinement on multiple counts or multiple petitions, including previously sustained petitions adjudging the minor a ward within Section 602 , the ‘maximum term of imprisonment’ shall be the aggregate term of imprisonment specified in subdivision (a) of Section 1170.1 of the Penal Code....” (Italics added.) Consistent with this statute, California Rules of Court, rule 5.795(b), requires the juvenile court to “specify and note in the minutes the maximum period of confinement” if a youth is declared a ward of the court.
Minor argues the trial court impermissibly aggregated the three-year period of confinement on the felony count sustained in the December petition with a six-month period for the two misdemeanor counts sustained in the September petition. (See Pen. Code, §§ 19, 487, 489, 594.) Minor points out that he had not been declared a ward under the September petition, and argues section 726 did not give the juvenile court discretion to aggregate prior petitions where wardship had not been declared. Minor also contends he was deprived of due process by his lack of notice that the two petitions would be aggregated.
Before the juvenile court took Minor’s plea on December 23, 2010, it warned him that as a possible consequence of his admission, he “could be kept in custody” for three years and six months. As the Attorney General points out, however, the trial court did not actually set a maximum term of confinement or exercise its discretion on whether to aggregate the terms when it declared Minor a ward and removed him from the physical custody of his parents at the January 26, 2011, disposition hearing. Nor do the court minutes for the disposition hearing reflect a maximum term of confinement.
The Attorney General suggests we remand the matter to the juvenile court to set a maximum term of confinement at a noticed hearing. Minor argues, however, that remand is unnecessary because as a matter of law the maximum term is three years—that is, the maximum term for the grand theft count. (Pen. Code, §§ 487 & 489.) According to Minor, the juvenile court was not authorized to aggregate the terms for the September and December petitions because he had not been adjudged a ward of the court in connection with the September petition and there was therefore no term of confinement to aggregate.
Minor’s argument, however, ignores the fact that the juvenile court made clear at the disposition hearing that it had before it both the September and the December petitions, and in fact, Minor made no objection. As explained in In re Deon W. (1998) 64 Cal.App.4th 143, 146-147, under section 725, the juvenile court may “put a halt to an adjudication before the order of wardship and disposition if it finds a minor will benefit from a prewardship grant of probation. Thereafter, if a court is dissatisfied with a minor’s performance on probation, the court may reinstitute the wardship proceedings.” Here, the trial court had granted probation under section 725 in connection with the September petition. After Minor reoffended while he was still on probation, the December petition was filed in the same case. It appears that the court and the parties treated both the September and the December petitions as being before the court at the January disposition hearing, and Minor made no objection. Nothing in Minor’s argument persuades us that such a procedure would be improper.
As we have noted, the probation officer stated that at a hearing pursuant to Welfare and Institutions Code section 241.1 on December 22, 2010, there had been a recommendation that Minor “become a 602 WIC” based on his “previous and current offense.”
Accordingly, we shall remand the matter to the juvenile court to set the maximum term of confinement, as required by section 725 and California Rules of Court, rule 5.795(b), and exercise its discretion on whether to aggregate the terms of confinement pursuant to section 726. (See In re Alex N. (2005) 132 Cal.App.4th 18, 25, fn. 2.) On remand, of course, Minor may make any proper arguments against the juvenile court aggregating the terms of confinement for his various offenses, including any argument that he did not receive proper notice of the intent to aggregate. (See In re Michael B. (1980) 28 Cal.3d 548, 553 [where prior offenses are to be aggregated, due process requires notice of juvenile court’s intention].)
III. DISPOSITION
The matter is remanded to the juvenile court to hold a hearing to determine the maximum term of Minor’s confinement. In all other respects, the order appealed from is affirmed.
We concur: RUVOLO, P. J. SEPULVEDA, J.