Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County Super. Ct. No. 509499. Linda A. McFadden, Judge.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, and Ward A. Campbell, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Gomes, J., and Kane, J.
It was alleged in a juvenile wardship petition (Welf. & Inst. Code, § 602) filed September 25, 2006, that appellant K. H., a minor, committed an act of misdemeanor vandalism causing damage of $400 or more (Pen. Code, § 594, subd. (b)(1)). On February 11, 2008, appellant admitted the allegation. At the disposition hearing on February 26, the court placed appellant on six months’ probation pursuant to section 725, subdivision (a), and stated, “[appellant’s] maximum possible confinement time here is twelve months.”
Except as otherwise indicated, all statutory references are to the Welfare and Institutions Code.
Further references to dates of events are to dates in 2008.
On April 1, after a contested restitution hearing, the court ordered that appellant pay $666.47 in restitution.
Appellant filed a notice of appeal on April 11, in which he states: “On April 1, 2008, the court determined the restitution was $666.47. The minor appeals this decision.”
On June 25, the People filed a motion to dismiss the appeal. Appellant filed an opposition to this motion on July 7. On July 11, this court ordered ruling on the motion “deferred until the time the appeal is scheduled for consideration of the merits.”
On appeal, appellant’s sole contention is that the court erred in declaring a maximum period of physical confinement (MTPC), and therefore this court should strike the MTPC. We will deny the motion to dismiss, strike the MTPC and affirm the judgment as modified.
DISCUSSION
Motion to Dismiss
Appeals of juvenile court judgments and orders, in both delinquency and dependency matters, are governed by California Rules of Court, rule 8.400. (Rule 8.400(a)(1)(A).) The notice of appeal in such matters must be filed within 60 days of the judgment or order being appealed. (Rule 8.400(d)(1).) “The notice of appeal must be liberally construed, and is sufficient if it identifies the particular judgment or order being appealed.” (Rule 8.400(c)(2).)
All rule references are to the California Rules of Court.
The People argue as follows: appellant, in asserting on appeal that the court erred in setting the MTPC, is challenging the February 26 judgment (the judgment); his notice of appeal identified only the April 1 restitution order and made no mention of the judgment; and therefore, because appellant did not timely appeal the judgment, this court lacks jurisdiction to review the judgment and the appeal should be dismissed. We disagree.
We find instructive this court’s decision in In re Madison W. (2006) 141 Cal.App.4th 1447. In that case, a dependency proceeding, the juvenile court denied a mother’s petition for reunification services under section 388 and, three days later, made an order terminating the mother’s parental rights (§ 366.26). The mother’s notice of appeal, filed within 60 days of both orders, stated she was appealing from the latter order and made no reference to the order denying the section 388 petition. On appeal, the mother challenged the denial of the section 388 petition. The respondent, Tulare County Health and Human Services Agency, argued that this court lacked jurisdiction to resolve the issue, given the mother’s failure to identify the applicable order in the notice of appeal.
This court rejected that argument and liberally construed the mother’s notice of appeal to include a challenge to the denial of the section 388 petition, reasoning as follows: “First, the denial of such a section 388 petition is an appealable order. [Citation.] Second, the parent’s notice of appeal is entitled to our liberal construction. [Citation.] Third, appellate jurisdiction to review an appealable order depends upon a timely notice of appeal. [Citation.] Fourth, the notice of appeal would be timely as to the denial of the parent’s section 388 petition, provided the trial court denied the parent’s section 388 petition within 60 days of when the parent filed the notice of appeal. [Citation.] And, finally, respondent is not prejudiced. [Citation.]” (In re Madison W., supra, 141 Cal.App.4th at p. 1450.)
The instant case presents an analogous situation. The judgment is an appealable order (§ 800; rule 5.585(a)), the notice of appeal was filed within 60 days of the judgment and we can discern no prejudice to the respondent. Accordingly, we will liberally construe the notice of appeal to contain a challenge to the judgment, and deny the People’s motion to dismiss the appeal.
The MTPC
Appellant argues that the court did not order him removed from the custody of his parents, and therefore the court erred in declaring an MTPC. We agree.
Section 726 deals with “the maximum term of confinement in juvenile wardship cases generally.” (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 which 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 ….’” (In re Ali A. (2006) 139 Cal.App.4th 569, 573 (Ali A.).) 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” (ibid.), and the setting of an MTPC “is of no legal effect” (id. at p. 574).
The People argue that “at no time did the court specify a ‘maximum term of imprisonment’” within the meaning of section 726(c). Rather, the People assert, “All that the disposition order shows is an advisement from the court to appellant, which would impress upon appellant the importance of successfully completing probation.” The record belies these claims. After advising appellant of his appeal rights, the court told appellant, as indicated above, “Your maximum possible confinement time here is twelve months.”
We turn now to the question of the proper disposition. We recognize that in Ali A., where the juvenile court declared an MTPC even though the minor was not ordered removed from the custody of his parents or guardian, the Court of Appeal rejected the minor’s claim that the physical confinement calculation should be stricken to prevent a judge in a future disposition from mistakenly imposing a maximum sentence based on the juvenile court’s null order. (Ali A., supra, 139 Cal.App.4th at pp. 573-574 & fn. 2 .) Ali A. explained: “In the event the minor violates the terms of his probation a further noticed hearing will have to be held before he is subjected to a modified disposition removing him from his parents’ custody. (See [§ 777].) If that happens, then at that time the juvenile court will have to comply with section 726(c) and, if applicable, section 731[subdivision] (b) in setting and/or declaring the maximum term of physical confinement. In the meantime, the maximum term of confinement contained in the current dispositional order is of no legal effect. Because the minor is not prejudiced by the presence of this term, there is no basis for reversal or remand in this case.” (Ali A., supra, 139 Cal.App.4th at pp. 573-574, original italics, fn. omitted.) In a footnote the court stated further: “The minor suggests that if this maximum term of confinement is not stricken and he is later committed to the CYA, the judge responsible for that disposition may believe he or she is required to impose the three-year maximum term contained in the present order. We trust that will not occur, as this opinion will be part of the file in this proceeding, and we have made it clear that the maximum term of confinement in the present order is of no legal effect.” (Id. at p. 574, fn. 2.)
However, although the striking of the MTPC is not strictly necessary, we believe appellant is entitled to a dispositional order free of potentially confusing legally ineffective directives. Therefore, we believe the better practice is to strike the portion of the disposition order setting the MTPC. We will do so.
DISPOSITION
Respondent’s motion to dismiss the appeal is denied. The court’s declaration that appellant’s maximum period of confinement is 12 months is stricken. As modified, the judgment is affirmed.