Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Ct. No. TJ18632 Catherine J. Pratt, Judge.
Gerald Peters, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jason C. Tran and David C. Cook, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, ACTING P. J.
Appellant J. B. appeals from a judgment adjudicating him a ward of the juvenile court following his commission of second degree robbery. (Pen. Code, § 211.) His sole contention on appeal is that the trial court erred in declaring the maximum time of physical confinement under Welfare and Institutions Code section 726, subdivision (c) to be five years. We agree that, because appellant was not removed from the physical custody of his parents, the court was without authority to set the maximum period of confinement. We modify the judgment to strike that portion and otherwise affirm.
Because of the limited nature of the appeal, we mention the underlying facts only briefly. On August 27, 2010, after a short hearing, the juvenile court found beyond a reasonable doubt that appellant had taken by force or fear a video game device from a fellow high school classmate. The conduct constituted a robbery under Penal Code section 211, meaning that if appellant had been an adult his maximum sentence would have been five years. (Pen. Code, § 213, subd. (a)(2).)
Appellant was initially placed in the Community Detention Program but at all times remained in the physical custody of his mother with certain probationary terms in effect. After the trial court adjudicated appellant a ward of the court, it stated:
“And that is a felony.
“And that is a charge, [J. B.], if you were held in custody, you could be held in custody for up to five years. It is also a charge that given the fact that you are 17 is considered a strike.
“So what that means is that if you commit a crime as an adult, this incident can be used to increase the amount of time that you would be sentenced to in that adult case. If you don’t commit any further crimes, it’s not an issue.”
The court then placed appellant under house arrest and scheduled a further hearing for September 28, 2010. On that date, the court took appellant off house arrest and ordered him home on probation under various terms and conditions.
Welfare and Institutions 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.”
In a series of cases the courts of appeal have held that, based on the express statutory language, the juvenile court is not authorized by law to set a maximum term of physical confinement if the minor is not removed from the parental home. The courts have disagreed on whether the proper remedy is to strike the unauthorized statement of maximum term of confinement (see, e.g. In re Matthew A. (2008) 165 Cal.App.4th 537, 541) or simply to acknowledge that the statement is of no legal effect (In re Ali A. (2006) 139 Cal.App.4th 569, 573-574). Appellant asks us to follow the former; the People argue for the latter. We believe Matthew A. states the better rule: Section 726, subdivision (c) states plainly that the trial court is to set the maximum term of confinement only when “the minor is removed from the physical custody” of the parent. Under the circumstances of this case, no statement of maximum term should have been included in the judgment, and the proper remedy is to strike it.
We observe that given the language the trial court used at the conclusion of the adjudication hearing, and which we have quoted above, the court may not have been intending to make a statement under section 726, subdivision (c). Instead, the court may have only been underscoring to appellant that if he had been convicted as an adult the maximum sentence would have been five years. The court’s statement came immediately before it advised appellant that his adjudication was a strike, thus making appellant eligible for increased punishment if in the future he sustained an adult conviction. These words, considered in the context that appellant had no prior record and was 17 years old, appropriately advised appellant that he was at a crossroads and the choices he would make might have significant consequences.
Notwithstanding the propriety and wisdom of the court’s remarks, the Clerk’s Transcript provides in language following a checked box: “Minor may not be held in physical confinement for a period to exceed 5 years..., ” language intended to track section 726, subdivision (c). Under the circumstances, even if the trial court did not intend to state a maximum term of confinement, the Clerk’s Transcript surely did, and the appropriate remedy is to strike the quoted portion of the transcript.
DISPOSITION
That portion of the judgment reflected in line 28 of the minute order dated August 27, 2010 and appearing at page 37 of the Clerk’s Transcript on appeal is stricken. In all other respects, the judgment is affirmed.
WE CONCUR: FLIER, J., GRIMES, J.