Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Robert M. Ambrose, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.), Super. Ct. No. JJ15345
Gerald Peters, 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, Scott A. Taryle and Paul M. Roadarmel, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
The minor, T.S., appeals from an order sustaining a Welfare and Institutions Code, section 602 petition and placing him home on probation. The July 16, 2007 delinquency petition charged the minor with one count of assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) (count) and two counts of threatening a public officer or employee (Pen. Code, §71) (counts two and three). At the adjudication hearing, the juvenile court found true the allegations as to count one but reduced it to a misdemeanor. (Pen. Code, § 242.) Counts two and three were dismissed. The minor was placed home on probation with a maximum period of confinement of six months. The minor was awarded six days of predisposition credit and ordered to pay a $50 restitution fine. On appeal, the minor argues that, because he was placed home on probation, the juvenile court had no authority to set a maximum term of confinement, therefore, the term should be stricken. We affirm the order in all respects.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We view the evidence in a light most favorable to the juvenile court’s order. (Jackson v. Virginia (1979) 443 U.S. 307, 319; In re George T. (2004) 33 Cal.4th 620, 630-631; People v. Osband (1996) 13 Cal.4th 622, 690; In Babak S. (1993) 18 Cal.App.4th 1077, 1088-1089 [standard of proof is the same in juvenile proceedings as that required in adult criminal trials]; In re Jose R. (1982) 137 Cal.App.3d 269, 275 [same].) Martin L., testified that he was 15 years-old. Martin was a student at Fremont High School in the City of Los Angeles on July 12, 2007. Martin was the minor’s classmate. The two had known each other for about a year. Approximately a week or two before July 12, 2007, Martin accidently stepped on the minor’s shoe. On July 12, 2007, after the students came back from lunch, the minor starting “bugging” Martin. When they entered the classroom for fifth period, Martin wanted to see the seating chart that was on the board. But the minor blocked Martin’s way to the seating chart on the board. Martin tried to go over to the seating chart and the minor said, “What is the magic word?” Martin replied, “What Magic Word?” and “Excuse me.” The minor then punched Martin. Martin was struck on the left side of his face with a closed fist and fell down. The minor then started to choke Martin with both hands. In his words, Martin, “[K]ind of blacked out.” When Martin stood up, he saw a “bunch” of chairs thrown everywhere. Martin heard the minor, who was out of the classroom, threatening people. The minor said “I’m going to kill you, bitch.” Martin had a scratch on his neck and the left side of his face was red and swollen. Martin transferred to a different school because he did not feel safe at Fremont High School.
The minor testified. Martin in fact stepped on the minor’s expensive sneakers. According to the minor, he no longer cared about the shoes. On July 12, 2007, Martin pushed the minor out the way to get to the seating chart. The minor said that Martin said, “[M]ove.” The minor said, “The word is excuse me.” According to the minor, the altercation was as follows: Martin pushed the minor; the minor pushed Martin back; Martin balled up his fist; and then the minor hit Martin. Martin did not swing at the minor. The minor denied choking Martin. But the minor admitted scratching Martin’s throat. This occurred when the minor hit Martin’s throat during the fracas. A teacher and students pulled the minor off Martin. The minor denied threatening to kill Martin.
The minor’s sole contention is that the order setting a maximum term of confinement has no legal effect and should be stricken. The Attorney General concedes that the juvenile court’s order setting a maximum term of confinement is of no legal effect given that the minor was placed home on probation. (In re Ali A. (2006) 139 Cal.App.4th 569, 572-574; In re Danny H. (2002) 104 Cal.App.4th 92, 106; In re Joseph G. (1995) 32 Cal.App.4th 1735, 1743-1744.) However, relying on In re Ali A., supra, 139 Cal.App.4th at pp. 572-574, the Attorney General disputes the contention the order should be stricken but argues that this court need do nothing but affirm the order sustaining the petition. The Court of Appeal in the case of In re Ali, supra, 139 Cal.App.4th at pages 573-574, including footnote 2, rejected a 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. (Id. at pp. 573-574 & fn. 2.) In re Ali 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, [subdivision] (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.” (In re Ali, supra, 139 Cal.App.4th at pp. 573-574, original italics, footnote omitted.) With the proviso that the order setting a maximum term of confinement for the minor is of no legal effect, no remand or reversal is necessary. (See §§725, 726; In re Ali A., supra, 139 Cal.App.4th at p. 574; In re Danny H., supra, 104 Cal.App.4th at p. 106; In re Joseph G., supra, 32 Cal.App.4th at pp. 1743-1744.)
The orders under review are affirmed.
We concur: MOSK, J., KRIEGLER, J.