Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. VJ30179, Gary Polinsky, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed as modified and remanded.
Deborah Blanchard, 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, Victoria B. Wilson, Supervising Deputy Attorney General, Jonathan J. Kline, Deputy Attorney General for Plaintiff and Respondent.
TURNER, P. J.
I. INTRODUCTION
The minor, Rudy Q., appeals from a March 27, 2007 order that he remain a ward of the court (Welf. & Inst. Code, § 602, subd. (a)) and be suitably placed. We modify the order and affirm it as modified. We direct the juvenile court, on remand, to specify the minor’s maximum period of physical confinement as eight years, eight months.
All further statutory references are to the Welfare and Institutions Code except where otherwise noted.
II. BACKGROUND
Two section 602 proceedings have been brought involving the minor. In the first proceeding, on November 10, 2004, the minor was cited for a violation of Health and Safety Code section 11359. The minor was given a notice to appear in the juvenile court on January 14, 2005, at 8:30 a.m. A non-detained delinquency petition was filed on January 14, 2005, alleging in count 1 the minor possessed marijuana for sale in violation of Health and Safety Code section 11359, a felony. Count 2 alleged the minor possessed marijuana on school grounds in violation of Health & Safety Code, section 11357, subdivision (e), a misdemeanor. The minor appeared in the juvenile court on January 14, 2005. The matter was continued to February 14, 2005. The minor remained released to his parent. The probation department recommended the juvenile court grant a deferred entry of judgment. (§ 790 et seq.) On February 14, 2005, the minor appeared and admitted the allegations of count 1. The juvenile court ruled the offense was a felony. Count 2 was dismissed. The minor was placed on probation for a period of one to three years. He was given predisposition credit of one day. The minor remained home on probation. Between December 14, 2004, and June 9, 2005, the minor completed a Youth Substance Abuse Program.
On May 25, 2006, the minor was cited for violating Penal Code section 288, subdivision (a). The minor and both parents were given notices to appear in the juvenile court on July 12, 2006, at 8:30 a.m. A non-detained juvenile delinquency petition was filed on July 12, 2006, charging the minor with having on March 23, 2006, committed a lewd act upon a child under 14 years of age in violation of Penal Code section 288, subdivision (a), a felony. The minor and his parents appeared in the juvenile court on July 12, 2006. The juvenile court ordered that the previous February 7, 2006 home of parent order remain in full force and effect. The minor remained released to his parents. In a report filed on August 15, 2006, the probation department recommended the minor remain a ward of the juvenile court under section 602. The matter was repeatedly continued from August 15, 2006, to February 27, 2007. On February 27, 2007, the minor’s motion to dismiss (§ 701.1) was denied and the July 12, 2006 petition was sustained. The minor was declared a ward of the juvenile court but was not detained.
In a report filed on March 27, 2007, the probation department stated: the minor was in need of mental health treatment in order to benefit from special education; the minor had tested positive for amphetamines, opiates, and marijuana on December 7, 2006; he tested positive for amphetamines and marijuana on February 28, 2007; the minor was suspended from school on March 16, 2007; and given the minor’s “serious psychological problems,” his “learning problems . . . complicated by his substance abuse problems,” he was no longer a candidate for continued home supervision. The probation department recommended the minor be suitably placed. On March 27, 2007, the juvenile court terminated the previous home of parent order and the minor was suitably placed. The offense was declared to be a felony. The minor’s maximum period of confinement was set as follows: “The maximum confinement time is eight years and prior time is three years and eight months.” The clerk’s minutes, however, state: “Minor may not be held in physical confinement for a period to exceed 8 y[ea]rs and 8 months . . . [¶] . . . [¶] PF: 7-12-06, Ct 1, 288A-PC, FF, 8 yrs [¶] PF: 1-14-05, Ct 1, 11359 HS, FF. 8 months.” The minor was granted a predisposition credit of five days. He was ordered detained in the juvenile hall pending placement.
We appointed counsel to represent the minor on appeal. Appointed counsel has filed a brief in which no issues are raised. (People v. Wende (1979) 25 Cal.3d 436, 441-442; In re Kevin S. (2003) 113 Cal.App.4th 97, 100-119; see Smith v. Robbins (2000) 528 U.S. 259, 264.) On November 16, 2007, we advised the minor he had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or argument he wished this court to consider. The minor has not filed any response.
III. DISCUSSION
A. Maximum Period of Confinement
We asked the parties to brief the question whether, on remand, the juvenile court must clarify the minor’s maximum period of confinement. Section 726, subdivision (c) states in 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. [¶] . . . [¶] If the court elects to aggregate the period of physical confinement on multiple petitions, including previously sustained petitions adjudging the minor a ward with Section 602, the ‘maximum term of imprisonment shall be the aggregate term of imprisonment specified in subdivision (a) of Section 1170.1 of the Penal Code, which includes any additional term imposed pursuant to Section 667, 667.5, 667.6, or 12022.1 of the Penal Code, and Section 11370.2 of the Health and Safety Code.” In the case of In re Eric J. (1979) 25 Cal.3d 522, 536, the Supreme Court held: “Under section 726, if the juvenile court chooses to ‘sentence’ consecutively on multiple counts or multiple petitions, the maximum term must be specified in accordance with the formula set forth in subdivision (a) of Penal Code section 1170.1, i.e., the sum of the ‘principal term’ (the longest term imposed for any of the offenses) and ‘subordinate terms’ (one-third of the middle term imposed for each other offense).” (Fn. omitted; accord, e.g., In re David H. (2003) 106 Cal.App.4th 1131, 1133-1134; In re Adrian R. (2000) 85 Cal.App.4th 448, 454.)
The juvenile court aggregated the period of physical confinement on multiple petitions. The juvenile court orally set the minor’s maximum term of confinement at eight years, the longest term that may be imposed for a violation of Penal Code section 288, subdivision (a), and 3 years, 8 months for the violation of Health and Safety Code section 11359. (Pen. Code, § 18.) The clerk’s minutes state the minor’s maximum term of confinement is eight years and eight months. But the juvenile court’s oral pronouncement—“The maximum confinement time is eight years and prior time is three years and eight months”—prevails over the clerk’s minutes. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mitchell (2001) 26 Cal.4th 181, 185-186; People v. Mesa (1975) 14 Cal.3d 466, 471.) The juvenile court’s oral pronouncement is incorrect. After the remittitur issues, the minor’s maximum period of physical confinement is to be modified to eight years, eight months. (See In re Julian R. (2007) 156 Cal.App.4th 1404, 1417-1418; In re Samuel C. (1977) 74 Cal.App.3d 351, 360.)
B. Predisposition Credit
We asked the parties to brief the question whether the juvenile court miscalculated the minor’s predisposition credit. A minor is entitled to credit against a maximum confinement time for all days of actual predisposition confinement. (In re Eric J., supra, 25 Cal.3d at pp. 533-536; In re Emilio C. (2004) 116 Cal.App.4th 1058, 1067.) When the juvenile court elects to aggregate the maximum period of confinement based on multiple petitions, the predisposition credits attributable to those petitions must be aggregated as well. (In re Eric J., supra, 25 Cal.3d at pp. 533-536; In re Emilio C., supra, 116 Cal.App.4th at pp. 1067-1068.) We have held, “It is the juvenile court’s duty to calculate the number of days earned, and the court may not delegate that duty. (Pen. Code, § 2900.5, subd. (d); People v. Vargas (1988) 204 Cal.App.3d 1455, 1469, fn. 9.” (In re Emilio C., supra, 116 Cal.App.4th at p. 1067; accord, In re John H. (1992) 3 Cal.App.4th 1109, 1111.) We can correct a legally unauthorized sentence or dispositional order whenever the error comes to our attention. (In re Ricky H. (1981) 30 Cal.3d 176, 191; People v. Serrato (1973) 9 Cal.3d 753, 763-765, disapproved on another point in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1; In re Sandel (1966) 64 Cal.2d 412, 417-418.) We have reviewed the record and find no evidence the minor spent five days in confinement pending resolution of the charges at issue in either of the two section 602 petitions. The March 27, 2007, order must be modified to reflect zero days of predisposition credit. The argument of minor that we should remand for a recalculation of credits is without merit. There is no evidence he ever served any time in custody. He was cited each time and was never detained.
IV. DISPOSITION
The March 27, 2007 wardship order is modified to reflect zero days of predisposition credit. On remand, as discussed in this opinion, the juvenile court shall specify the minor’s maximum period of physical confinement as eight years, eight months. The order is affirmed in all other respects.
We concur: ARMSTRONG, J., KRIEGLER, J.