Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JV115585
HULL, J.W.O., a minor, admitted committing second degree robbery and was committed to the Division of Juvenile Justice (DJJ) for five years six months, which is the maximum legal term that could have been imposed for the robbery and three prior sustained petitions.
On appeal, the minor contends remand for recalculation of the confinement period is required because the juvenile court was unaware of its discretion to impose less than the maximum term. The People argue the record is to the contrary. Finding the minor’s argument more persuasive, we shall remand for the required determination.
DISCUSSION
Welfare and Institutions Code section 731, subdivision (c) states: “A ward committed to the Division of Juvenile Facilities may not be held in physical confinement for a period of time in excess of the maximum period of imprisonment that could be imposed upon an adult convicted of the offense or offenses that brought or continued the minor under the jurisdiction of the juvenile court. A ward committed to the Division of Juvenile Facilities also may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter or matters that brought or continued the ward under the jurisdiction of the juvenile court, which may not exceed the maximum period of adult confinement as determined pursuant to this section. This section does not limit the power of the Board of Parole Hearings to retain the ward on parole status for the period permitted by Section 1769.”
Welfare and Institutions Code section 731, subdivision (c) requires the court to set the maximum term of physical confinement “based upon the facts and circumstances of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court,” so long as the term does not exceed the adult maximum period of imprisonment. (In re Jacob J. (2005) 130 Cal.App.4th 429, 436.)
Here, in determining the minor’s maximum confinement period, the court stated: “I think it would benefit this subject to be in the DJJ for whatever period it deems appropriate, not to exceed five years and six months or the age of 25.” Because Welfare and Institutions Code section 731, subdivision (c) requires the court, not the DJJ, to set the minor’s maximum term of physical confinement, remand for that purpose is required.
The People argue the record shows the court made the discretionary determination required by Welfare and Institutions Code section 731, subdivision (c) because the court examined the minor’s criminal history in detail before making the determination. We disagree. The court’s detailing of the minor’s criminal history was to explain why it was opting for committing the minor to the DJJ rather than placing him in juvenile hall, as was recommended by the probation department. The court’s statement unambiguously shows that it was delegating its duty to make the maximum confinement determination to the DJJ, an error requiring remand.
DISPOSITION
The matter is remanded to the juvenile court for compliance with Welfare and Institutions Code section 731, subdivision (c). In all other respects, the judgment is affirmed.
We concur: BLEASE, Acting P.J., BUTZ, J.