Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. J04-00567.
NEEDHAM, J.
James C. appeals from a dispositional order imposed under Welfare & Institutions Code section 777 after he violated the terms of his probation. He contends the court erred in calculating his maximum period of confinement. (Welf. & Inst. Code, § 726, subd. (c).) We will affirm the order.
I. FACTS AND PROCEDURAL HISTORY
A. Initial Juvenile Delinquency Petition (Petty Theft)
A petition filed under Welfare and Institutions Code section 602 on July 7, 2004, alleged two counts of petty theft (Pen. Code, §§ 484, 488). After being advised that he faced a maximum term of confinement of eight months if removed from his home, James admitted the petty theft allegations. In August 2004, James was placed on home supervision for 45 days.
B. Supplemental Juvenile Delinquency Petition (Battery)
A supplemental Welfare and Institutions Code section 602 petition, filed in November 2004, alleged that James had perpetrated battery on a school employee. (Pen. Code,§ 243.6.) The petition gave notice of an intent to aggregate the disposition with the earlier disposition on James’s two prior petty thefts. After the petition was amended to allege simple battery, and after being advised that his maximum term of confinement on that offense would be six months, James admitted the simple battery allegation.
In January 2005, James was placed in the Orin Allen Youth Rehabilitation Facility (OAYRF) for a maximum term of six months, without aggregation of the disposition on the prior petty thefts. Apparently for good behavior, James was released a month early from OAYRF in July 2005.
C. Second Supplemental Juvenile Delinquency Petition (Attempted Robbery)
On August 16, 2006, a second supplemental petition under Welfare and Institutions Code section 602 alleged that James had committed felony attempted second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c), 664) and misdemeanor battery (Pen. Code, §§ 242, 243, subd. (a)). The petition gave notice of an intent to aggregate the disposition with the commitment time for James’s prior sustained petitions.
At a contested jurisdictional hearing on September 26, 2006, the court found the attempted robbery to be true and found the battery not true. James was ordered detained until his next dispositional hearing.
An October 11, 2006, probation report calculated James’s maximum term of confinement as three years for the attempted robbery, plus an additional six months based on the prior sustained petitions, for a total of 42 months.
On October 19, 2006, the juvenile court ordered James removed from his home and into placement. A handwritten notation on the minute order states that James’s maximum “custody time” was three years. There is no indication on the minute order whether the reference to three years pertained solely to the current offense, as specified in the probation report, or indicated that the court was not going to aggregate the maximum confinement period of the current offense with the maximum confinement period for James’s prior sustained petitions. James was subsequently placed at Boys Republic.
In November 2006, James appealed from the October 19, 2006, placement order (appeal number A116000). In his opening brief, he contended that the court erred in calculating the maximum confinement period and his custody credits.
D. Probation Violation Notice (Welf. & Inst. Code, § 777)
In February 2007, while appeal number A116000 was pending, James ran away from probation department staff. A notice of probation violation (Welf. & Inst. Code, § 777) alleged that he had been terminated from Boys Republic for engaging in numerous physical altercations, and, upon his arrival at the Oakland airport from Boys Republic, he escaped from probation staff. A warrant was issued for his arrest.
E. Appeal and Remand Regarding Disposition on Second Supplemental Petition
In October 2007, while James was still at large, we affirmed the juvenile court’s calculation of the maximum term of confinement for attempted second degree robbery as three years, but remanded the matter to the juvenile court for a recalculation of custody credit. James had initially contended that the maximum term of confinement for the robbery count should have been two-and-a-half years. We disagreed, based upon the following analysis: “Penal Code section 664, subdivision (a) provides that in general, an attempt is punishable by a term of imprisonment that is one-half the term of imprisonment prescribed for the completed offense. The People and appellant both assume that the maximum term for attempted second degree robbery is one-half of the five-year maximum term for second degree robbery, or two and one-half years, and that the court reached the three-year maximum term in this case by selecting a two-and-one-half year term for the attempted robbery and then aggregating the sentences for prior misdemeanor offenses that were alleged in the delinquency petition. It appears, however, that the court calculated the maximum term based solely on the attempted robbery. Penal Code section 213, subdivision (b) provides, ‘Notwithstanding Section 664, [attempted second degree robbery] is punishable by imprisonment in the state prison,’ i.e., by sixteen months, two years or three years pursuant to Penal Code section 18. The three-year maximum term set by the court is equal to the three-year upper term for attempted second degree robbery. [Citation.]” We then addressed the issue of custody credits: “In his remaining contention, appellant asks us to remand the case so the juvenile court can calculate his custody credits for time spent in juvenile hall before the disposition hearing. The People agree that a remand for this purpose is appropriate. [Citation.]” Our disposition of the appeal read as follows: “The case is remanded to the juvenile court for a calculation of predisposition custody credits. The judgment is otherwise affirmed.”
After remand, in correspondence to the court dated January 7, 2008, the probation department recalculated James’s custody credit and reiterated that he had “a total of 42 months [three years plus six months] of custody time,” which was consistent with the probation department’s calculation of James’s maximum confinement time in its October 11 report. The letter indicated that the public defender had been consulted “regarding the above information.”
On January 7, 2008, with James still at large but defense counsel present, the juvenile court recalculated James’s custody credit. A handwritten notation on the minute order reads: “Maximum custody time: 3 years & 6 months.” The record does not indicate any objection to this calculation of the maximum confinement time. James did not appeal the order.
F. Disposition After Probation Violation Hearing (§ 777 )
In May 2008, James was arrested for battery and apprehended on the warrant arising from his escape from probation staff and probation violation.
At the pre-trial conference on the probation violation (Welf. & Inst. Code, § 777) on July 14, 2008, James admitted that he violated his probation by escaping from custody. Before his admission, the court had advised that his maximum term of confinement would be three years plus six months, citing the October 11, 2006, probation department determination. The defense agreed with the court’s determination: “THE COURT: Let me see what kind of maximum time he has. It looks like – well, it was three years and six months on 10/11/06. I don’t know what it is now. [¶] [DEFENSE COUNSEL]: That sounds right to us....”
The probation report for the ensuing dispositional hearing determined the maximum confinement period to be 42 months, consistent with the probation report of October 11, 2006, the probation department’s correspondence of January 2008, and the court’s January 2008 order after remand. In response to the probation officer’s report, defense counsel did not object to the maximum confinement period.
On August 11, 2008, the court issued its disposition order on the probation violation. The court continued James’s wardship and ordered him back into placement for a maximum term of confinement of 42 months, less 373 days custody credit. Neither defense counsel nor James questioned the 42-month determination.
James thereafter appealed from the August 11 order.
II. DISCUSSION
James now challenges the determination of the 42-month maximum period of confinement specified in the August 11 dispositional order. He contends the maximum confinement time should be three years, in light of our ruling in the prior appeal. He is incorrect.
Welfare and Institutions Code section 726, subdivision (c) requires the juvenile court to determine a ward’s maximum period of physical confinement: “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.
After a new petition is sustained under section 602, or a petition is sustained under section 777, the juvenile court may consider the juvenile’s entire record, including prior sustained section 602 petitions, in determining the appropriate disposition and the maximum period of confinement. (In re Adrian R. (2000) 85 Cal.App.4th 448, 454-455.) Specifically, in calculating the maximum period of confinement, the juvenile court may aggregate terms from previously sustained section 602 petitions. (Ibid.; Welf. & Inst. Code, § 726, subd. (c).)
In addition to his section 602 petition for attempted second degree robbery (having a maximum term of confinement of three years), James had prior sustained section 602 petitions for petty theft (eight months) and battery (six months). Although the six months for battery had been served, the eight-month term had not been served, and it was available for aggregation with the disposition on the robbery count. In fact, the probation department’s report recommended, without objection, that six months (apparently from the available eight months) be aggregated with the three years on the robbery offense. The juvenile court did not err in specifying the maximum confinement period to be three years six months.
Nothing in our opinion in appeal number A116000 precluded the juvenile court from determining the maximum confinement period to be three years six months. At issue in appeal number A116000 was the proper maximum confinement period for attempted second-degree robbery alone, which we determined to be three years. We did not address whether the juvenile court had authority to impose a maximum confinement period of those three years plus some other amount of time due to James’s prior sustained petitions.
Although we remanded the case to the juvenile court only “for a calculation of predisposition custody credits” and otherwise affirmed the judgment, we did not preclude the court upon remand from adding the available six months in additional confinement time to James’s disposition on the robbery count, if that had indeed been the juvenile court’s intent. In fact, our explanation that the maximum confinement period for attempted second degree robbery alone was three years, may have informed the juvenile court that, in order to effect its original intent of aggregating the confinement period for the robbery count and the prior petty theft, it would have to impose a three-year term plus a six-month term. In any event, for whatever reason the juvenile court revised the maximum confinement period from three years to three years six months after remand, James did not object.
Furthermore, James does not present any authority suggesting that the juvenile court could not determine anew – at the section 777 hearing – the appropriate maximum confinement period. Nor does he dispute that, as a general matter, a juvenile court has discretion to impose a maximum confinement period of three years six months by aggregating a three-year disposition on attempted second degree robbery and six months of a term for prior petty thefts. There is nothing unlawful about the specified maximum confinement period based on the petitions sustained in James’s case.
Moreover, neither James nor his attorney objected to the aggregation of the terms or the maximum confinement period in connection with the section 777 hearing. To the contrary, defense counsel expressly agreed with the court’s calculation. Accordingly, even if the maximum confinement period had been incorrectly specified in James’s case, the error was invited and the matter was waived.
James fails to establish reversible error.
III. DISPOSITION
The order is affirmed.
We concur SIMONS, Acting P. J., BRUINIERS, J.
Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.