Opinion
B229540
09-09-2011
In re RICHARD E., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. RICHARD E., Defendant and Appellant.
Lisa Holder, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Shira B. Seigle, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule
(Los Angeles County Super. Ct. No. TJ19097)
APPEAL from a judgment of the Superior Court of Los Angeles County, Catherine Pratt, Judge. Affirmed as modified.
Lisa Holder, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Shira B. Seigle, Deputy Attorneys General, for Plaintiff and Respondent.
The juvenile court sustained a petition under Welfare and Institutions Code section 602 after finding appellant Richard E. committed second degree robbery in violation of Penal Code section 211. The court placed Richard home on probation and fixed his maximum period of confinement at five years. The lone contention on appeal is that the court erred in setting a maximum period of confinement because Richard was not removed from the custody of his parents. We modify the judgment to strike the maximum period of confinement and affirm in all other respects.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
The facts may be concisely stated, as there is no claim on appeal of insufficiency of the evidence or evidentiary error. Oscar Quiroga testified he was accosted by a group of four people near the intersection of Florence Avenue and Crenshaw Boulevard on the evening of November 12, 2010. Quiroga was in fear, as one of the assailants threatened him by simulating possession of a gun. Quiroga's backpack was taken from him. Quiroga was taken to a gas station where suspects had been detained. He identified Richard as the person who took his cell phone. Richard and a codefendant testified the reason they were at the gas station was because the car they had been riding in had run out of gas.
Relying on section 726, subdivision (c), Richard argues the disposition order improperly sets a maximum period of confinement of five years, because he was not removed from the custody of his parent or guardian. Section 726 provides in pertinent part as follows: "(c) 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." The statute has been interpreted as meaning the juvenile court lacks the authority to fix a maximum term of confinement when a minor is placed home on probation. (In re Matthew A. (2008) 165 Cal.App.4th 537, 541; In re Ali A. (2006) 139 Cal.App.4th 569, 573.)
In this case, the juvenile court's oral pronouncement of judgment did not fix a maximum period of confinement. The court, in passing, merely advised Richard that if he did not follow the court's rules, he could be taken into custody for up to five years. However, the minute order of the dispositional hearing does indicate that Richard may not be held in custody in excess of five years. The minute order must be corrected to delete the reference to the five years maximum period of confinement, because it is inconsistent with the oral pronouncement of judgment and is not authorized by section 726, subdivision (c). (In re Matthew A., supra, 165 Cal.App.4th at p. 541 [order fixing maximum period of confinement must be stricken]; People v. Zackery (2007) 147 Cal.App.4th 380, 387-388 [clerk's minute order must reflect the judgment orally pronounced].)
DISPOSITION
The minute order dated December 9, 2010, is ordered modified to delete the reference on line 28 to a five-year maximum period of custody. In all other respects, the judgment is affirmed.
KRIEGLER, J. We concur:
TURNER, P. J.
ARMSTRONG, J.