Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. FJ47004, Robert Miller Sloan, Judge.
Courtney M. Selan, 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 Tran and David C. Cook, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
Appellant, Eduardo P., a minor, was declared a ward of the court and placed home on probation. On appeal, he contends the juvenile court erred in setting a maximum period of physical confinement. He is correct. We strike the maximum period of confinement and affirm the order as modified.
FACTUAL AND PROCEDURAL HISTORY
On September 27, 2010, the juvenile court adjudicated two separate and unrelated delinquency petitions under Welfare and Institutions Code section 602. The first petition alleged that appellant committed three felony counts of lewd acts upon a child in violation of Penal Code section 288, subdivision (a). The second petition alleged one count of felony robbery in violation of Penal Code section 211 and one misdemeanor count of being in possession of a knife on school property in violation of Penal Code section 626.10.
Statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
At the hearing, the first petition was amended to add a fourth count of misdemeanor sexual battery in violation of Penal Code section 243.4; and appellant admitted the charge in count four. The court sustained the petition as to count four and dismissed counts 1-3. Concerning the second petition, the court sustained only as to the robbery count, and the weapon-possession count was dismissed.
The court declared appellant to be a ward of the court, under section 602. He was ordered placed in the care, custody and control of the probation department, and ordered appellant to be placed home on probation. The court also imposed a maximum period of confinement of five years and two months.
This appeal followed.
DISCUSSION
At the disposition hearing, the juvenile court ordered appellant home on probation and set a maximum term of confinement of five years and two months. Appellant contends that the juvenile delinquency court erred in setting a maximum term of confinement. He argues that that term is only appropriate when a minor is removed from parental custody, as set forth in section 726, subdivision (c). Appellant is correct.
Section 726, subdivision (c), provides: “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.” “‘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.” (Welf. & Inst. Code, § 726, subd. (c).) “By its express terms, however, section 726[, subdivision] (c) applies only ‘[i]f the minor is removed from the physical custody of his or her parent or guardian....’” (In re Ali A. (2006) 139 Cal.App.4th 569, 573 (“Ali A.”).)
The Attorney General, citing Ali A. contends that although the juvenile court was not required to set a maximum term of confinement, such a term does not prejudice appellant because it has no legal effect and does not require reversal or remand. We conclude that it was error to set a maximum term of confinement and that the better course is to strike it.
In Ali A., the minor was placed in the custody of his parents under the supervision of a probation officer, and the juvenile court set the maximum confinement term at three years, the upper term for the charged offense. The minor contended that the juvenile court failed to exercise its discretion in setting the maximum term of physical confinement pursuant to former section 731, subdivision (b) (now section 731, subd. (c)), because that section permits the juvenile court to set the maximum term of confinement at less than the highest of the three statutory terms for the offense. The reviewing court rejected the minor's contention, observing that former section 731, subdivision (b) applies only to commitments to the California Youth Authority. (Ali A., supra, 139 Cal.App.4th at pp. 572-573.) The Court of Appeal continued, “[g]iven that the juvenile court did not commit the minor to the CYA, one may well ask why the [juvenile] court’s dispositional order included a maximum term of confinement.” (Id. at p. 573.) The appellate court concluded that since the minor had not been committed to the CYA or removed from the custody of his parents, neither former section 731, subdivision (b) nor section 726, subdivision (c) was applicable, and therefore, the juvenile court had no discretion to set a maximum term of confinement. (Ali A., supra, 139 Cal.App.4th at pp. 571, 573.)
Former section 731, subdivision (b), as discussed in Ali A., provided, in pertinent part: “A minor committed to the Department of the Youth Authority... may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court....”
The Ali A. court, finding that the maximum term of confinement contained in the dispositional order was “of no legal effect” until such time as the minor violated probation, a section 777 hearing was held. At that time, the court would modify the disposition, remove him from his parents’ custody and set and/or declare a maximum term of confinement in accordance with section 726, subdivision (c) and, if applicable, section 731, subdivision (b). (Ali A., supra, 139 Cal.App.4th at pp. 573-574.) Concluding that the minor was “not prejudiced by the presence of [the maximum confinement] term, ” the court held that there was “no basis for reversal or remand in this case.” (Id. at p. 574.) In this regard, the court noted, “The minor suggests that if this maximum term of confinement is not stricken and he is later committed to the CYA, the judge responsible for that disposition may believe he or she is required to impose the three-year maximum term contained in the present order. We trust that will not occur, as this opinion will be part of the file in this proceeding, and we have made it clear that the maximum term of confinement in the present order is of no legal effect.” (Id. at p. 574, fn. 2.)
We agree with appellant that the maximum term of confinement is void and of no effect. We also agree that appellant is entitled to a dispositional order that accurately reflects the punishment imposed upon him at the time of the dispositional hearing. Not only is the setting of a maximum term of confinement not required where, as here, a minor is not removed from the physical custody of his or her parents, but, should future proceedings result in a commitment to a juvenile facility, the maximum term of confinement gratuitously set at the time probation is granted may not be the term ultimately imposed. (Former § 731, subd. (b).) Furthermore, unlike the court in Ali A., we believe that the best practice is to strike the order setting a maximum term of confinement, rather than assume that a future court will refer to an appellate opinion contained in the file if further proceedings occur upon violation of probation. (See In re Matthew A. (2008) 165 Cal.App.4th 537, 541.)
DISPOSITION
The maximum term of confinement set forth in the minute order of September 27, 2010, is ordered stricken. In all other respects, the order is affirmed.
We concur: PERLUSS, P. J., ZELON, J.