IN RE: D.J. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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A petition was filed against the minor under Welfare and Institutions Code section 602 charging him with second degree robbery and alleging he used a deadly and dangerous weapon during commission of the robbery.¹  After hearing the evidence, the juvenile court sustained the petition finding the allegations of the petition to be true.   The minor was declared a ward of the court, and the court declared his offense to be a felony.   The court placed appellant on probation in the home of his mother.   However, the court declared, and the minute order reflected, that the maximum period of confinement to be six years.

The minor timely appealed, contending the court erred in setting a maximum period of confinement because he was not removed from his parent's physical custody;  he urges this court to strike the maximum term of confinement from the court's minute order.   Respondent argues that the juvenile court's setting a maximum confinement time has no legal effect, but it agrees this court properly may strike the provision.   We therefore modify the order and affirm the order as so modified and remand with directions.

DISCUSSION

Section 726, subdivision (c) provides in pertinent 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.”   The parties agree that because the juvenile court placed the minor home on probation, there was no requirement for the court to determine the maximum period of confinement.

As we have previously declared, apparently with little effect on some courts below, when a minor is not removed from a parent's custody “the necessary predicate for specifying a term of imprisonment does not exist.   The sentencing authority of a court in almost all instances is prescribed by statutory law․  [Section 726, subdivision (c) ] did not empower the court to specify a term of imprisonment and that should have been the end of the matter.   Yet, [the juvenile court] nonetheless specified a term, namely the maximum term.   Courts utilizing this technique may have the best of reasons, such as ‘sending a message’ to the juvenile that the transgression was serious.   But if the Legislature thought that this should be done, it would have been easy to write the statute to permit this practice.   We think it should cease.”  (In re Matthew A. (2008) 165 Cal.App.4th 537, 541 (Matthew A.).)

Respondent argues that the juvenile court's setting of the minor's maximum confinement time need not be stricken because it has “no legal effect.”  (See In re Ali A. (2006) 139 Cal.App.4th 569, 573-574;  see also In re Danny H. (2002) 104 Cal.App.4th 92, 106.)   We take a different view.   As counsel for the minor notes, the maximum term of confinement established in this case, unless stricken, conceivably may be used as a benchmark in future proceedings.   As we have noted, when the court has incorrectly declared a term of maximum confinement as to a minor whose custody is not removed from the parents, the better practice is to strike the order setting a maximum term of confinement.   (Matthew A., supra, 165 Cal.App.4th at p. 541.)

DISPOSITION

The maximum term of confinement is stricken.   As modified, the order is affirmed.   The juvenile court is directed to correct the minute order to delete any reference to the maximum term of confinement.

We concur:

FOOTNOTES

FN1. All further statutory references are to the Welfare and Institutions Code..  FN1. All further statutory references are to the Welfare and Institutions Code.

BIGELOW, P.J. GRIMES, J.