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In re Gonzalo L.

California Court of Appeals, Second District, Fourth Division
Feb 22, 2011
No. B223050 (Cal. Ct. App. Feb. 22, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. FJ46808 Diane Reyes, Temporary Judge. Pursuant to Cal. Const., art. VI, § 21.

Bruce G. Finebaum, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and Julie A. Harris, Deputy Attorneys General, for Plaintiff and Respondent.


SUZUKAWA, J.

Gonzalo L. appeals from an order of wardship (Welf. & Inst. Code, § 602) following a finding he committed the crime of second degree robbery, a felony (Pen. Code, § 211). He was placed home on probation, and the maximum period of confinement was determined to be five years. We strike the maximum period of confinement and affirm in all other respects.

FACTUAL AND PROCEDURAL SUMMARY

On January 25, 2010, Eric C. was attending his second day at Burbank Middle School. When he went to the restroom around 7:30 a.m., two students pushed him against the wall, began grabbing him, and asked if he “bang[ed].” Eric said he did not, and the students started reaching into his pockets to take his money. He told them that was his money for P.E. clothes, but they started hitting him and took $20 from his pocket. He left the school, went to his recovery placement home, and told them what happened.

Eric met with police officers at school to identify the assailants. Los Angeles School Police Department Officer Juan Hernandez was one of the officers investigating the robbery. Officer Hernandez asked Eric to look through the yearbook to identify the assailants, but he could not find appellant’s picture. However, Eric later saw appellant walking upstairs at school and identified him to Officer Hernandez. At the adjudication hearing, Eric identified appellant as the person who hit him and took his money.

A petition was filed under Welfare and Institutions Code section 602 alleging that appellant, who was 13 years old at the time, committed the crime of second degree robbery, in violation of Penal Code section 211, a felony. The juvenile court sustained the petition, found the charge to be a felony, and declared appellant a ward of the court. The court placed appellant home on probation, imposed various conditions of probation, and determined the maximum term of confinement to be five years. Appellant filed a timely notice of appeal.

DISCUSSION

Appellant’s sole contention on appeal is that the juvenile court erred in setting a maximum term of confinement because he was committed to the custody of his parents.

Welfare and Institutions Code section 726, subdivision (c) provides that “[i]f 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.” Welfare and Institutions Code section 726, subdivision (c) applies only if a 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.) Where, as here, a minor is placed home on probation and not removed from his parents’ custody, the juvenile court lacks the authority to set the maximum period of confinement. (In re Matthew A. (2008) 165 Cal.App.4th 537, 541.)

DISPOSITION

The maximum term of confinement is stricken. In all other respects the order of wardship is affirmed.

We concur: EPSTEIN, P. J., MANELLA, J.


Summaries of

In re Gonzalo L.

California Court of Appeals, Second District, Fourth Division
Feb 22, 2011
No. B223050 (Cal. Ct. App. Feb. 22, 2011)
Case details for

In re Gonzalo L.

Case Details

Full title:In re GONZALO L., a Person Coming Under the Juvenile Court Law THE PEOPLE…

Court:California Court of Appeals, Second District, Fourth Division

Date published: Feb 22, 2011

Citations

No. B223050 (Cal. Ct. App. Feb. 22, 2011)