Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. SJ10015197-02.
NEEDHAM, J.
S. T. appeals from the juvenile court’s dispositional order committing him to the Division of Juvenile Justice. His attorney has filed a brief seeking our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436 (see Anders v. California (1967) 386 U.S. 738), in order to determine whether there is any arguable issue on appeal. We will modify the order and, as so modified, affirm it.
I. FACTS AND PROCEDURAL HISTORY
The original Welfare and Institutions Code section 602 petition against appellant alleged that he committed an attempted robbery and, for purposes of an enhancement, alleged that he personally used a firearm in the commission of the offense. (Pen. Code, §§ 664/211, 12022.53, subd. (b).)
While represented by counsel, and after waiving his constitutional rights, appellant entered an admission to an amended felony count of attempted grand theft. (Pen. Code, §§ 664/487, subd. (c).) In August 2010, appellant was adjudged a ward of the court. He was placed on probation, to live in the home of his mother.
In November 2010, a subsequent petition was filed under Welfare and Institutions Code section 602, alleging two counts of robbery with personal use of a deadly or dangerous weapon. (Pen. Code, §§ 211, 12022, subd. (b)(1).) Notice was provided that the People would request the court to consider the prior finding of attempted felony grand theft in determining the disposition and maximum length of physical confinement for the new offenses.
At the jurisdictional hearing on November 30, 2010, appellant was represented by counsel. After being informed of and waiving his constitutional rights, appellant admitted one count of robbery. The court found a factual basis for the admission. The other robbery count and the enhancements were dismissed. The court ordered that the maximum time of confinement for the offense, after aggregating the term of the previously sustained petition, would be five years, four months.
The dispositional report advised that appellant had failed to perform on probation, options for rehabilitation through the probation department were limited due to his age, and he would benefit from the “reformatory educational discipline or other treatment” at the Division of Juvenile Justice (DJJ). The report recommended that appellant be committed to DJJ. Alternatively, the report proposed that appellant be sentenced to nine months in Santa Rita Jail.
At the dispositional hearing on December 14, 2010, appellant’s attorney argued that a commitment to DJJ was inappropriate, because appellant’s most recent robbery was only his second referral, and a camp would be sufficient. Defense counsel noted that the offense was committed with an adult who was likely a bad influence on appellant, and alcohol may have led to appellant’s commission of the crime. He further noted the probation department’s indication that appellant was a low risk to re-offend.
The district attorney asked that appellant be committed to DJJ, arguing that appellant’s most recent offense demonstrated that he was a danger to the community, and this was the juvenile court’s last opportunity to attempt rehabilitation in light of the fact that appellant had turned 18 years old.
The juvenile court committed appellant to DJJ. The court found that appellant failed to reform on probation and, under the circumstances including his age, it was probable that he would benefit from particular programs at DJJ. (Welf. & Inst. Code, § 731, subd. (c).) The court found that the maximum term of confinement was five years, six months, based on the five-year upper term for robbery plus “eighteen month top at six months, one third” for the prior attempted felony grand theft. A $100 restitution fine was imposed (Pen. Code, § 730.6, subd. (b)(1)), and victim restitution was reserved. The court awarded appellant credits of 39 actual days. The defense did not dispute this calculation, the fine, or the maximum term of physical confinement.
This appeal followed.
II. DISCUSSION
Appellant’s counsel represented in the opening brief in this appeal that she wrote to appellant and advised him of the filing of a Wende brief and his opportunity to file his own supplemental brief within 30 days. We have not received any supplemental submission from appellant.
In our independent Wende review, we found that an arguable issue existed as to the juvenile court’s statement of the maximum term of physical confinement at the time of the dispositional order. The juvenile court ruled that the maximum term of confinement was five years, six months. (Welf. & Inst. Code, § 726, subd. (c), § 731, subd. (c).) As discussed below, it should have been five years, four months, as the court had previously indicated in the jurisdictional order.
The instant offense was second degree robbery, carrying a maximum term of five years. (Pen. Code, § 212.5, subd. (c); § 213, subd. (a)(2).) Where there is a range of punishments for an offense, the upper term is selected for purposes of establishing the maximum term of confinement. (Welf. & Inst. Code, § 726, subd. (c).) The maximum term of confinement for the present robbery offense, therefore, was five years.
Where, as here, the court upon notice elects to aggregate the period of physical confinement on present and past sustained petitions, the maximum term of physical confinement is what the aggregate term of imprisonment would be for an adult under Penal Code section 1170.1, subdivision (a). (Welf. & Inst. Code, § 726, subd. (c).) The aggregate maximum term of physical confinement is therefore the five-year upper term for robbery and one-third the midterm for attempted felony grand theft. (See Pen. Code, § 1170.1, subd. (a).) The midterm for attempted felony grand theft is calculated as follows: felony grand theft carries a term of 16 months, two years, or three years (Pen. Code, § 489, subd. (b), Pen. Code, § 18); attempted felony grand theft is calculated at one-half this range, i.e., 8 months, one year, or three years (Pen. Code, § 664, subd. (a)); so the mid-term of attempted felony grand theft is one year. The maximum term of confinement should therefore be five years (robbery) plus one-third the one-year midterm (attempted felony grand theft), for a total of five years, four months.
From the juvenile court’s reference at the dispositional hearing to “eighteen month top at six months, one third, ” it appears the court may have used the 18 month upper term for attempted felony grand theft, so that one-third of that amount (six months) was added to the robbery term. This was erroneous.
By order dated June 7, 2011, we notified counsel of this issue and advised them that we intended to modify the maximum time of confinement to five years, four months, and affirm the dispositional order as so modified, unless the parties filed a letter brief convincing us to the contrary within 15 days of our order. Respondent replied that it agreed appellant’s maximum time of physical confinement should be modified to five years, four months. We will proceed with our proposed disposition.
We find no other arguable issues on appeal. There are no legal issues that require further briefing.
III. DISPOSITION
The dispositional order is modified to state that the maximum term of physical confinement is five years, four months, rather than five years, six months. As so modified, the dispositional order is affirmed.
We concur. JONES, P. J., BRUINIERS, J.