Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Benjamin Campos, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Los Angeles County Super. Ct. No. VJ36132.
Anne E. Fragasso, 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, Assistant Attorney General, Susan D. Martynec and Ellen Birnbaum Kehr, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, J.
R.C. appeals from an order of wardship (Welf. & Inst. Code, § 602) following a finding he made a criminal threat in violation of Penal Code section 422 and that during the commission of the offense he personally used a deadly and dangerous weapon, a knife, within the meaning of Penal Code section 12022, subdivision (b)(1). He was placed home on probation and a maximum term of physical confinement of four years was declared. He contends the trial court erred in calculating the predisposition credits to which he was entitled and it was error to set a maximum period of confinement. For reasons stated in the opinion, we strike the maximum period of confinement and recalculate the predisposition credits.
FACTUAL AND PROCEDURAL SUMMARY
Appellant does not challenge the sufficiency of the evidence to support the order of wardship and it will suffice to observe that on May 9, 2008, while at school, appellant and another minor held an open knife to the throat area of a third minor and threatened to cut and kill him if he told anyone.
I
At the disposition hearing, the court awarded appellant 22 days of predisposition credit running from May 13, 2008, the date the petition was filed, to June 3, 2008. Appellant contends he was taken into custody on May 9, 2008, and is entitled to an additional four days of custody credit. Respondent agrees. The record indicates appellant was arrested on May 9, 2008, was released on June 3, 2008, and is entitled to an additional four days of credit for a total of 26 days of predisposition credit.
II
Appellant contends the court erred in ordering a maximum period of confinement since appellant was not removed from the custody of his parents. We agree. Welfare and Institutions Code 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 [Welfare and Institutions Code] 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.”
By its express terms, Welfare and Institutions Code section 726, subdivision (c) applies only if a minor is removed from the physical custody of his or her parent or guardian. Appellant was not removed from the physical custody of his parents, there was no confinement, and the order setting a maximum term of confinement is erroneous. (In reAli A. (2006) 139 Cal. App.4th 569, 573.)
DISPOSITION
The dispositional order is modified to reflect 26 days of predisposition credit and to strike the maximum term of confinement. In all other respects the order of wardship is affirmed.
We concur: EPSTEIN, P.J., MANELLA, J.