Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Tulare County No. JJD063556 Valeriano Saucedo, Judge.
Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Gomes, J. and Kane, J.
The juvenile court found true the allegations of a petition alleging that B.C. came within the provisions of Welfare and Institutions Code section 602 because he had committed felony burglary (Pen. Code, § 459) and felony vandalism (Pen. Code, § 594, subd. (a)). The charges arose out of an incident where B.C. and two friends broke into and vandalized several apartments. B.C. was determined to be a ward of the court, placed on probation, and returned to the custody of his mother.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
B.C. argues the judgment must be reversed and remanded to the juvenile court because he was not properly advised he was eligible for the deferred entry of judgment (DEJ) program as required by section 790, subdivision (b). He also urges us to strike the juvenile court’s finding that the maximum period of confinement for these offenses is three years eight months. B.C. argues, and the People concede, that this finding was erroneous because B.C. was not removed from the physical custody of his parents. (§ 726, subd. (c).) We will order the maximum period of confinement finding stricken, but otherwise affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
The facts of the underlying crime are not in dispute. B.C. and two of his friends broke into and vandalized two units in an apartment complex, causing damage estimated to be in excess of $8,000. B.C. argued at trial that he acted out of fear for his own safety, and thus his actions were excused as the result of duress. The juvenile court rejected the defense and found the allegations of the petition true. Both counts were determined to be felonies. B.C. was determined to be a ward of the court under the supervision of the probation department. He was placed with his mother.
DISCUSSION
I. DEJ Advisement
Section 790, subdivision (b) requires the prosecutor to review his file and determine whether or not each juvenile charged in a petition filed pursuant to section 602 is eligible for DEJ pursuant to the criteria listed in section 790, subdivision (a). “If the minor is found eligible for deferred entry of judgment, the prosecuting attorney shall file a declaration in writing with the court or state for the record the grounds upon which the determination is based, and shall make this information available to the minor and his or her attorney.” (§ 790, subd. (b).)
The parties agree that B.C. was eligible for DEJ. B.C. argues the prosecutor failed to inform him of his eligibility either orally or in writing. The record establishes otherwise.
On December 31, 2008, B.C. appeared for arraignment. Also present for arraignment were the two other minors responsible for the damage. Counsel for one of the other minors noted that it appeared his client was eligible for DEJ, but the prosecutor had failed to file the typical paperwork with the complaint (presumably Judicial Council of Cal. form JV-750). The prosecutor apologized, noting that he had forgotten notices for any of the minors. The prosecutor noted that the minor who had brought up the issue was eligible for DEJ. The juvenile court accepted that minor’s plea conditioned on his being placed on the DEJ program. B.C., who was not represented by counsel at this hearing (counsel having been appointed but not present), entered a denial and was scheduled for further pretrial hearing.
At the next pretrial hearing, B.C.’s counsel was present. Also present was the other minor responsible for the damage. The minor who had entered the conditional plea at the previous hearing was not present. The juvenile court noted at the beginning of the hearing that both minors that were present were statutorily eligible for DEJ. The prosecutor again apologized for not filing the customary form but stated, “Based on the review of the minors’ criminal history, they are eligible for the Deferred Entry of Judgment program.” The juvenile court and the prosecutor then addressed B.C.’s accomplice. The prosecutor offered to recommend the minor for the DEJ program if he admitted the felony vandalism charge. The prosecutor would then dismiss the burglary count. The accomplice accepted the offer.
When the juvenile court returned to B.C.’s case, the prosecutor stated he had made the same offer to B.C., and the offer would remain open to the next pretrial hearing to allow B.C. to complete additional investigation into possible defenses to the charges. The juvenile court then set B.C.’s case for another pretrial hearing. At the next pretrial hearing, B.C. advised the juvenile court he wanted to proceed to a jurisdictional hearing, thereby rejecting the People’s offer.
Section 790, subdivision (b) requires the prosecutor to inform the minor if he is eligible for DEJ and the reasons for so concluding. Not only did the prosecutor inform the juvenile court and B.C. at the second pretrial hearing that B.C. was eligible for DEJ, he also stated that the conclusion was based on B.C.’s past criminal history, or the lack thereof. The prosecutor thus complied with section 790. In addition, the prosecutor offered a plea bargain to B.C. based on his eligibility for the DEJ program. B.C.’s claim that he was not advised of his eligibility for the DEJ program simply is contrary to the record.
Because the requirements of the statute were met, In re Luis B. (2006) 142 Cal.App.4th 1117, on which B.C. relies, is inapposite.
II. Determination of Maximum Period of Confinement
B.C. was made a ward of the court, placed on probation, and returned to the physical custody of his mother. The juvenile court also found that the maximum period of confinement for the offenses is three years eight months. The parties agree that since B.C. was not removed from the physical custody of his parent, the finding of a maximum period of confinement should not have been made and is of no legal effect. (§ 726, subd. (c); In re Matthew A. (2008) 165 Cal.App.4th 537, 541 (Matthew A.); In re Ali A. (2006) 139 Cal.App.4th 569, 573-574; In re Danny H. (2002) 104 Cal.App.4th 92, 106; In re Joseph G. (1995) 32 Cal.App.4th 1735, 1743-1744.)
As can be seen from the age of some of these cases, the impropriety of setting a maximum period of confinement when the minor is not removed from the custody of a parent or guardian has long been established. Older cases have simply noted the error but affirmed the judgment, concluding there was no prejudice to the minor. The court in Matthew A., apparently frustrated with juvenile courts repeatedly making the same error, ordered the determination stricken from the record. B.C. urges us to strike the finding here. The People concede the error, but suggest the finding is of no legal effect and not prejudicial. They do not object, however, to an order striking the finding. We conclude the finding should be stricken.
DISPOSITION
The finding that B.C. is subject to a maximum period of confinement of three years eight months is ordered stricken from the record. The judgment is affirmed in all other respects.