Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Robert H. Oliver, Judge. Super. Ct. No. 04CEJ601015-3
Allen E. Junker, 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, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Cornell, J. and Dawson, J.
It was alleged in a juvenile wardship petition (Welf. & Inst. Code, § 602) that appellant Mark C., a minor, committed the following felony offenses: attempted murder (Pen. Code, §§ 187, 664), assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), and active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)). Initially, on January 3, 2007, appellant admitted the assault allegation and the court dismissed the remaining two allegations. However, immediately thereafter, appellant asked to withdraw his admission. The court granted that request and set a trial confirmation hearing for January 19, 2007.
Except as otherwise indicated, all statutory references are to the Welfare and Institutions Code.
On that date, appellant asked that his admission be reinstated. The court granted that request. Subsequently, at the disposition hearing on February 16, 2007, the court declared the instant offense a felony; ordered appellant committed to the California Youth Authority; determined appellant’s maximum term of imprisonment (§ 726) to be four years nine months, based on the instant offense and offenses adjudicated in previous wardship proceedings; declared the maximum term of physical confinement (MTPC) (§ 731) to be three years; and awarded appellant 397 days of predisposition credits.
Effective July 1, 2005, the California Youth Authority was renamed the Department of Corrections and Rehabilitation, Juvenile Justice (DCRJJ). (Gov. Code, §12838, subd. (a).)
Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.)
Appellant has filed a letter brief in which he argues, as best we can determine, as follows: (1) the DCRJJ incorrectly determined the earliest date on which he can be granted parole, and (2) the juvenile court may have abused its discretion in imposing a maximum term of physical confinement of three years. We will affirm.
FACTS
The report of the probation officer indicates that according to a Fresno County Sheriff’s Department report, the following occurred on November 12, 2006: Appellant and another person accosted the victim, who was walking home from school. Appellant “began yelling ‘Bulldogs’ and barking at the victim.” The victim tried to run away, but appellant’s cohort grabbed him, and appellant “then attacked the victim from behind and stabbed him on his back.” Appellant’s cohort then let the victim go, and the two attackers ran away.
DISCUSSION
Appellant’s contention that the DCRJJ incorrectly determined his parole date is not properly before us. First, this claim appears to be based on matters outside the record. (People v. Barnett (1998) 17 Cal.4th 1044, 1183 [“our review on a direct appeal is limited to the appellate record”].) Second, the setting of a parole date by the DCRJJ is not an appealable order. (§ 800, subd. (a) [appealable orders in juvenile wardship proceedings limited to judgments and orders after judgment].) Accordingly, we cannot, and do not, consider this claim
Appellant’s second contention is without merit. A juvenile court must make two distinct determinations regarding a minor’s period of confinement when committing a minor to the DCRJJ. First, section 726 directs the juvenile court, generally, “to determine the maximum term of imprisonment by choosing the longest period of incarceration applicable to an adult offender .… (§ 726, subd. (c).)” (In re Carlos E. (2005) 127 Cal.App.4th 1529, 1538.) Second, while retaining this requirement, section 731 requires, in addition, that the court set a “ ‘maximum term of physical confinement’ ” in the DCRJJ. (Ibid.) In making the latter determination, the court must exercise its discretion, “ ‘based upon the facts and circumstance of the matter … which brought … the minor under the jurisdiction of the juvenile court.’ ” (Ibid.) The “maximum term of physical confinement” under section 731, subdivision (b) may not be more than the “maximum term of imprisonment” under section 726. (Id. at p. 1542.) However, it may be less. (Ibid.)
Here, the court correctly determined appellant’s maximum term of imprisonment (§ 726) to be four years nine months. The maximum term of physical confinement (§ 731) declared by the court was significantly less than that, and was well within the court’s discretion.
Following independent review of the record, we have concluded that no reasonably arguable legal or factual issues exist.
DISPOSITION
The judgment is affirmed.