Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. No. JJD062559. Hugo J. Loza, Temporary Judge (Pursuant to Cal. Const., art. VI, § 21)
Karen L. Anslinger, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes, and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, A.P.J., Dawson, J., and Kane, J.
INTRODUCTION
On April 7, 2008, a petition was filed pursuant to Welfare and Institutions Code section 602 alleging appellant, F.R., committed misdemeanor battery (Pen. Code, § 242) and petty theft (Pen. Code, § 484, subd. (a)). On July 24, 2008, the battery allegation was dismissed. After a jurisdictional hearing, the juvenile court found the petty theft allegation true.
Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.
On August 11, 2008, a second petition was filed alleging two counts of receiving stolen property (Pen. Code, § 496, subd. (a)). Under a plea agreement reached by the parties on October 21, 2008, appellant admitted count two which was an amended allegation that consolidated two counts of receiving stolen property into a single count of receiving stolen property. Count one was dismissed.
On November 12, 2008, the court placed appellant on deferred entry of judgment subject to various terms of probation. The court set appellant’s maximum term of confinement to three years four months.
On December 3, 2008, the prosecutor filed a new petition alleging three misdemeanor counts of driving under the influence of drugs or alcohol (Veh. Code, § 23152, subd. (a), count one), driving with a blood alcohol level of.08 percent or higher (Veh. Code, § 23152, subd. (b), count two), and driving without a valid license (Veh. Code, § 12500, subd. (a), count three). On December 29, 2008, appellant admitted counts two and three in exchange for the dismissal of count one.
On January 22, 2009, the court terminated appellant’s deferred entry of judgment, adjudged him a ward of the court, placed him under the supervision of the probation officer, and ordered his placement to remain with his parents. The court set appellant’s maximum term of confinement at three years six months.
Appellant argues the juvenile court erred in setting his maximum term of confinement because he was placed with his parents. Respondent concedes error. We will reverse the juvenile court’s order setting the maximum term of confinement.
Because the only issue on appeal involves the juvenile court’s setting of the maximum term of confinement, we do not review the facts of appellant’s offenses.
SPECIFIED TERM OF CONFINEMENT
The parties concur that the juvenile court erred in specifying the maximum term of confinement because, although appellant was found to be a ward of the court, he was placed in his parents’ physical custody on electronic monitoring. We accept the concession by the respondent that the juvenile court erred and will remand for the juvenile court to strike its finding concerning appellant’s maximum term of commitment.
Section 726 deals with the maximum term of confinement in juvenile wardship cases. (In re Sean W. (2005) 127 Cal.App.4th 1177, 1187.) Subdivision (c) of section 726 (section 726(c)) requires the juvenile court to specify that the minor may not be confined for a period in excess of the maximum term of imprisonment that could be imposed on an adult convicted of the offense that brought the minor under the jurisdiction of the juvenile court. By its express terms, however, section 726(c) applies only “[i]f the minor is removed from the physical custody of his or her parent or guardian ….” (§ 726(c); See In re Ali A. (2006) 139 Cal.App.4th 569, 573 (Ali A.); also see In re Matthew A. (2008) 165 Cal.App.4th 537, 541 (Matthew A.).)
Physical confinement is defined under the statute as “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.” (§ 726(c).) Where, as here, a minor is not removed from the physical custody of his parents or guardian, section 726(c) does not apply and the juvenile court is not required by section 726(c) to include a maximum term of confinement in its dispositional order, and the setting of an maximum term of confinement “is of no legal effect” (Ali A., supra, 139 Cal.App.4th at p. 574).
In re Ali A. found that the minor was not prejudiced when the juvenile court announced the maximum term of confinement and did not modify the disposition order. (In re Ali., supra, 139 Cal.App.4th at pp. 573-574.) Although the Ali A. court believed the minor was not prejudiced by the inclusion of the unlawful term and therefore did not order it stricken, we choose to order it stricken in order to discourage this unlawful practice. (Matthew A., supra, 165 Cal.App.4th at p. 541.)
DISPOSITION
The juvenile court’s order setting appellant’s maximum term of confinement is reversed and the juvenile court is directed to vacate it on remand. The remaining orders of the juvenile court are affirmed.