In re J.S.

Full title: THE PEOPLE, Plaintiff and Respondent, v. J.S., Defendant and Appellant.

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

Date published: Jan 14, 2008

No. B198041 (Cal. Ct. App. Jan. 14, 2008)

Opinion

In re J.S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.S., Defendant and Appellant. B198041 California Court of Appeal, Second District, Fifth Division January 14, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from an order of the Superior Court of Los Angeles County No. YJ29573, Irma J. Brown, Judge.

Courtney M. Selan, 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, Senior Assistant Attorney General, Margaret E. Maxwell and Lance E. Winters, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

MOSK, J.

INTRODUCTION

The District Attorney of Los Angeles County filed a petition alleging that defendant and appellant J.S. (J.) came within the provisions of Welfare and Institutions Code section 602 because he committed misdemeanor vandalism (Pen. Code, § 594, subd. (a)) and misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)(1)). The juvenile court found the allegations to be true and placed J. on probation under Welfare and Institutions Code section 725, subdivision (a) under various terms and conditions. J. was permitted to remain in his parents’ home. The juvenile court set a maximum period of physical confinement at one year, four months.

On appeal, J. contends that the juvenile court erred in setting a maximum period of physical confinement because he was placed at home on probation and not ordered confined in the California Youth Authority. We agree and order the one year, four month maximum period of physical confinement stricken from the order placing J. on probation. We otherwise affirm the order of probation.

DISCUSSION ¹

1 We dispense with a recitation of the facts concerning the vandalism and resisting arrest offenses, as the issue on appeal addresses only the disposition and not J.’s substantive offenses.

The One Year, Four Month Maximum Period Of Physical Confinement Is Stricken

J. contends that the juvenile court erred when it set a maximum period of physical confinement because he was placed at home on probation and not ordered confined in the California Youth Authority. Respondent concedes the error. The concession is well taken.

Welfare and Institutions Code section 726, subdivision (c) provides, in pertinent part, “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.” (Italics added.) A maximum period of physical confinement may not be set when a juvenile is placed on home probation in his parents’ custody. (In re Ali A. (2006) 139 Cal.App.4th 569, 573-574) [holding that a maximum period of confinement in a dispositional order was of no legal effect because the ward was not removed from his parents’ custody].) Accordingly, the juvenile court erred when it set a one year, four month maximum period of physical confinement for J. That maximum period of physical confinement is stricken from the juvenile court’s order placing J. on probation. The order of probation is otherwise affirmed.

DISPOSITION

The juvenile court’s order placing J. on probation is affirmed; that part of the order setting a one year, four month maximum period of physical confinement is stricken.

We concur: TURNER, P. J., KRIEGLER, J.