Opinion
H036954
10-05-2011
IN RE I.R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. I.R., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Cruz County Super. Ct. No. J21483F)
The minor, I.R., appeals from a March 23, 2011 dispositional order, following the finding by the juvenile court that he committed attempted robbery (Pen. Code, §§ 211, 664). The court continued the minor as a ward of the court in the custody of his mother, with various terms and conditions. The court set the minor's maximum term of confinement at five years six months. On appeal, the minor's appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436.
The record on appeal reflects that in May 2010, a dispositional hearing was held after the juvenile court "previously sustained [a] petition alleging that the [minor] violated" Penal Code section 496, subdivision (a) and Welfare and Institutions Code section 777. The minor was continued as a ward of the court and placed on probation with various terms and conditions, including that he serve 19 days in juvenile hall with credit for 19 days served. The court set the minor's maximum term of confinement at four years ten months.
Further unspecified statutory references are to the Welfare and Institutions Code.
This court has affirmed prior judgments of wardship involving the minor. (In re I.R. (July 2, 2009, H033134) [nonpub. opn.]; In re I.R. (Nov. 25, 2009, H033721) [nonpub. opn.].)
On December 13, 2010, a petition was filed under section 602 alleging that the minor, then age 17, committed attempted robbery (Pen. Code, §§ 211, 664) on or about December 1, 2010. A notice under section 777 was also filed alleging that the minor violated probation by, among other things, failing to obey all laws on December 1, 2010.
A contested jurisdictional hearing was held on January 27, 2011, concerning the attempted robbery. The evidence presented at the hearing included the following. The victim testified that he was walking when "two guys," one of whom was the minor, started telling him "stuff," including that his family "is stupid." The victim clarified that "[j]ust one" of the individuals was talking about his family. He testified: "I kind of recognized the voice but like I really didn't know." The victim acknowledged that he told officers after the incident that it was the minor who was speaking. He did not remember telling an officer that three or four people, rather than two, were involved.
The victim had known the minor since middle school, and the victim's father had helped the minor's grandmother with errands. Regarding the second individual, the victim had seen him a few times before, including "hanging out" on the victim's street.
The victim had been holding onto a phone and listening to music at the time of the incident. He testified that the two individuals did not say anything about the phone, nor did he remember telling an officer that the two individuals "said something about getting" his phone.
At some point, one or both of the individuals were kicking the victim, not hard, on his feet. He did not remember whether they poked him.
The victim was wearing a silver necklace, and the individuals were "pulling" up the necklace from behind the victim. The victim testified that he did not know which of the two individuals was pulling the necklace. He also testified that he did not hear the two individuals say that they were going to "jack" his necklace, nor did he remember stating this to an officer after the incident. The victim subsequently testified that "it looked like they were going to steal" his necklace. They were "lifting it" and "[t]rying to take it off." The victim kept moving his head "so they wouldn't take [his necklace] off."
The victim was eventually able to run away. He was scared. The last he heard was one individual stating, " 'We're going to get this fool because we know his dad hasn't been dropping him off at the bus station for a couple of days. We know this fool will be walking through here tomorrow.' "
When the victim arrived home, his mom told him to call the police. Watsonville Police Officer Leo Kafer spoke to the victim that same day, on December 1, 2010. Officer Kafer testified that the victim had reported that the minor "walked up behind him and said, I'm going to get this fool." The victim had also reported that the minor said he was going to "take" the victim's chain, phone, and "whatever else [the victim] had on him." According to Officer Kafer, the victim indicated that the minor was accompanied by three or four males, but the victim could describe only one male besides the minor.
Detective Jarrod Pisturino testified that he talked to the victim one week later. The victim reported that the minor had said we are " 'going to jack his chain and . . . we're going to jack his phone.' "
The minor testified in his own behalf. He stated that although he did not have a good relationship with the victim's brother, he never had any problems with the victim. The minor did not remember what he did on the day of the incident, but he was "[p]retty sure" that he did not see the victim that day.
At the conclusion of the jurisdictional hearing, the juvenile court sustained the allegation in the section 602 petition that the minor had committed attempted robbery (Pen. Code, §§ 211, 664) and found true the allegation in the section 777 notice that he had violated probation to the extent that he did not obey all laws on December 1, 2010.
On February 1, 2011, the juvenile court dismissed the remaining allegations in the section 777 notice concerning alleged probation violations.
Subsequently, on February 14, 2011, a new section 777 notice was filed alleging that the minor violated the May 2010 terms of probation.
On March 23, 2011, on motion of the People, the juvenile court dismissed the most recent section 777 notice alleging the minor violated probation. Regarding the attempted robbery, the court continued the minor as a ward of the court in the custody of his mother, with various terms and conditions. The court also set the minor's maximum term of confinement at five years six months.
The minor filed a timely notice of appeal and we appointed counsel to represent him in this court. Appointed counsel has filed a brief which states the case and facts but raises no issues. We notified the minor of his right to submit written argument in his own behalf within 30 days. That period has elapsed and we have received no response from the minor.
We requested supplemental briefing from the parties regarding the juvenile court's calculation of the minor's maximum term of confinement. The minor argues that the juvenile court "lacked the power to specify such term" where, as here, the minor was not removed from his mother's custody. The minor requests that the term be stricken.
The Attorney General agrees that the juvenile court "did not remove [the minor] from his mother's custody and order out-of-home placement," and therefore the court "was not required to set" the maximum time of confinement and it should be stricken from the dispositional order. Alternatively, the Attorney General contends that if the juvenile court was required to set the maximum time of confinement, the court's calculation was correct.
We agree with the parties and determine that the juvenile court was not authorized to set the maximum term of confinement because the juvenile court did not remove the minor from the physical custody of his mother.
Sentencing authority is usually prescribed by statute. (In re Matthew A. (2008) 165 Cal.App.4th 537, 541.) Section 726, subdivision (c) provides in relevant 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. [¶] . . . [¶] 'Physical confinement' means placement in a juvenile hall, ranch, camp, forestry camp or secure juvenile home pursuant to Section 730, or in any institution operated by the Youth Authority." Thus, under section 726, subdivision (c), a "necessary predicate for specifying a term of imprisonment" is the minor's removal from the physical custody of his or her parent or custodian. (In re Matthew A., supra, 165 Cal.App.4th at p. 541; see also In re Ali A. (2006) 139 Cal.App.4th 569, 573.) If the minor is not removed from the physical custody of a parent or guardian, then the statute does "not empower the court to specify a term of imprisonment." (In re Matthew A., at p. 541.) In In re Matthew A., supra, the appellate court ordered the specification of a term of imprisonment stricken, where the minor had been placed home on probation. (Ibid.; see also id. at p. 539; but see In re Ali A., supra, 139 Cal.App.4th at pp. 573-574 & fn. 2 [determining that although the juvenile court was not required by section 726, subdivision (c) to specify a maximum term of confinement, the minor was not prejudiced by its presence in the dispositional order].)
In this case, at the dispositional hearing, the juvenile court ordered that the minor reside in the custody of his mother. As the minor was not removed from the physical custody of his mother, the juvenile court should not have specified a maximum term of confinement. Accordingly, we agree with the parties that the juvenile court was not required to set the maximum term of confinement and that the specified term should be stricken. We will order the juvenile court's specification of the maximum term of confinement of five years six months stricken from the dispositional order.
Pursuant to People v. Wende, supra, 25 Cal.3d 436, and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record and have concluded that there is no arguable issue on appeal.
We deny the People's motion, filed September 20, 2011, requesting that this court augment the record or take judicial notice of certain documents, or excerpts from certain documents, purportedly contained in the juvenile court's file.
The dispositional order of March 23, 2011, is modified by striking the maximum term of confinement. As so modified, the order is affirmed.
BAMATTRE-MANOUKIAN, ACTING P. J.
WE CONCUR:
DUFFY, J.
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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