Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. PJ46867 Benjamin R. Campos, Commissioner.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
CHANEY, J.
BACKGROUND
Appellant Fernando C. was detained under Welfare & Institutions Code section 602, charged with second degree robbery, a felony. (Pen. Code, § 211.) A second count, for misdemeanor petty theft under Penal Code section 484, subdivision (a), was dismissed on the prosecution’s motion at the adjudication hearing.
After a contested adjudication hearing, the court sustained the petition on count one, found it to be a Welfare and Institutions Code section 707, subdivision (b) offense, and found the offense to be a strike. Appellant was placed home on probation. The juvenile court fixed his maximum permissible period of confinement as six years.
Because appellant does not challenge the sufficiency of the evidence to support the second degree robbery adjudication, it is unnecessary to recount the evidence in detail. The evidence at the adjudication hearing indicated that on the evening of July 27, 2010, Luis Mejia had parked and locked his bicycle near Canoga Park High School where he had an English language class, and walked to his classroom. Because he noticed three boys following him, he went back to check on his bike. He then saw one of the boys with his bike, talking with the other two other boys, one of whom was appellant.
When Mejia approached, the boy with his bike took off with it, while the other two stayed. Mejia was able to catch up with the boy with his bike, and asked for it back. During the argument, the boy with his bike told Mejia he would not give it back because he needed it for drugs.
The other two boys then approached. One had another bike. The other—appellant—tried, unsuccessfully, to take a tube from Mejia’s bike, and had a chain around his hand. Although Mejia had continued to ask for the return of his bike, he felt threatened by the statements and gestures of the three, including appellant, and he told them to keep the bike.
Appellant and the other two boys proceeded to the nearby mall, leaving the bike outside. Appellant and the two other boys were later arrested on their way home from the mall. The police searched them, but found no weapons, chains, or tools that could be used to break a bike lock. Appellant denied being present when Mejia’s bicycle was taken, denied saying or doing anything to threaten Mejia, and denied having any role at all in stealing his bicycle.
The juvenile court found that appellant and his two friends all participated in the bicycle theft, although appellant was not the instigator and did not himself ride or otherwise possess the bicycle. And it found that appellant’s words and gestures were intended to be threatening. The bicycle “was taken against the victim’s will, and the force used was the implied threats of injury to the person of the victim by the gestures made, ” and by appellant’s question, “Is there a problem here?” when he arrived at the scene of the dispute.
Appellant filed a timely appeal, in which he challenges only the six-year maximum period of confinement imposed by the juvenile court’s order.
DISCUSSION
Welfare and Institutions Code section 726, subdivision (c), provides, with respect to sentencing: “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.”
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
Appellant contends that the juvenile court’s disposition violated section 726 in two respects: First, the court erred by fixing a maximum permissible period of confinement, because no physical confinement was ordered. Second, even if fixing the permissible maximum were appropriate the six-year maximum permissible term was error, because a juvenile cannot be held in physical confinement for a period that exceeds the maximum term of imprisonment that could be imposed on an adult convicted of the same offense, and under Penal Code section 213, subdivision (a)(2), the maximum term of imprisonment for second degree robbery is five years. (In re Bryant R. (2003) 112 Cal.App.4th 1230, 1236, fn. 5.)
Respondent concedes the juvenile court’s error in fixing a maximum term of confinement under these circumstances, and it impliedly also concedes that the six-year maximum confinement designation was substantively erroneous. It argues, however, that “because the order listing the maximum period of confinement has no legal effect, ” the erroneous order need not be corrected.
That was the result in In re Ali A. (2006) 139 Cal.App.4th 569, a case in which the juvenile court fixed the minor’s maximum permissible confinement term at three years, the upper term for the offense, although section 726, subdivision (c) did not apply because the minor had not been committed to confinement at all. Although the juvenile court had no discretion to set a maximum term of confinement, the Third District Court of Appeal held there was no reason to set aside the erroneous disposition because “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, and the court then modified the current disposition to remove him from his parents’ custody, resulting in his confinement. (In re Ali A., supra, 139 Cal.App.4th at p. 573.)
In In re Matthew A. (2008) 165 Cal.App.4th 537, 541-542, however, another division in this appellate district reached the opposite result on essentially the same facts. There, as in In re Ali. A. (and as here), the minor was placed home on probation, but the juvenile court nevertheless set a maximum term of confinement, despite the absence of any statutory basis for the order. (In re Matthew A., supra, 165 Cal.App.4th at p. 539.) In In re Matthew A., the reviewing court disagreed with the result of In re Ali. A., holding that the maximum term of confinement should be stricken.
Appellant is entitled to a dispositional order that accurately reflects the punishment imposed upon him at the time of the dispositional hearing. Because that punishment includes no confinement at all, the erroneous fixing of amaximum term of confinement should be stricken. (In re Matthew A., supra, 165 Cal.App.4th at p. 541.) And that is all the more true here than it was in In re Matthew A., for here the erroneously imposed maximum permissible term of confinement also misstates what the maximum permissible term of confinement would be, even if the court were entitled to fix the maximum term at all. (Ibid.) Here, even more than in In re Matthew A., it therefore is not sufficient merely to ignore the portion of the order that erroneously fixes the maximum permissible term of confinement on the assumption that the error can be corrected if and when the minor might become subject to confinement in the future.
We therefore conclude that the better practice is to strike the order that erroneously sets a maximum term of confinement, rather than simply trusting that it will be appropriately handled in future proceedings, as the reviewing court concluded in In re Ali A. (139 Cal.App.4th at p. 574, fn. 2.) There is even less reason for such reliance here than there was in In re Ali A., for here the permissible term of confinement is not just statutorily unjustified, but substantively erroneous as well. (See In re Matthew A. (2008) 165 Cal.App.4th at p. 541.)
DISPOSITION
The juvenile court is directed to correct the order of the disposition hearing by striking the setting of a six-year maximum term of confinement. In all other respects, the order is affirmed.
We concur: MALLANO, P. J., JOHNSON, J.