IN RE: D.J. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

D.J. (appellant), a minor, appeals from the order declaring him a ward of the juvenile court under Welfare & Institutions Code section 602.¹  As part of an agreement, appellant waived his rights and admitted the allegation against him.   Appellant was placed at home on probation.   The court set the maximum term of confinement at five years and awarded appellant 19 days predisposition credit.   Appellant argues that because he was placed at home on probation, the juvenile court erred by setting a maximum term of physical confinement.

We agree with appellant, and order the maximum term of confinement stricken from the court's dispositional order.

FACTUAL AND PROCEDURAL BACKGROUND

On April 17, 2010, Duane M. was walking southbound on Fifth Street East near Avenue I when he observed two black males running toward him.   The boys began punching him and one of them reached inside Duane's right shirt pocket and stole his black and grey MP3 player.   Duane recognized appellant as one of the boys.

On April 20, 2010, a petition was filed alleging that appellant was a minor who came within the provisions of section 602 because he had committed second degree robbery in violation of Penal Code section 211.

On May 10, 2010, having been advised of and having waived his rights, appellant admitted the allegation.   The court found that appellant was a person described by section 602.   The court ordered appellant placed at home on probation with various conditions.   The court found that the maximum period of confinement was not to exceed five years and awarded appellant predisposition credit of 19 days.

On June 25, 2010, appellant filed a notice of appeal from the order.

DISCUSSION

Appellant contends that because the trial court placed him home on probation, its specification of a maximum period of confinement should be stricken.   Respondent agrees.

A court's order of wardship made pursuant to section 602 must 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 which brought the minor under the jurisdiction of the juvenile court. (§ 726, subd. (c).)  However, this requirement only applies “[i]f the minor is removed from the physical custody of his or her parent or guardian.”   (Ibid.)

In In re Ali A. (2006) 139 Cal.App.4th 569, a minor was placed in the custody of his parents under the supervision of a probation officer.   The juvenile court set the maximum confinement term at three years, the upper term for the offense.   The Court of Appeal concluded that because the minor had not been committed to the Department of Youth Authority (CYA) or removed from the custody of his parents, section 726, subdivision (c) was not applicable.²  Therefore, the juvenile court had no discretion to set a maximum term of confinement.  (Ali A., supra, at pp. 571, 573.)

The Ali A. court simply affirmed the order of probation, concluding that the maximum term of confinement contained in the dispositional order was “of no legal effect” until such time as the minor violated probation, a section 777 hearing was held, and the court modified the current disposition to remove him from his parents' custody.

However, we agree with the parties that the maximum term of confinement must be stricken from the dispositional order.   Appellant is entitled to a dispositional order that accurately reflects the punishment imposed upon him at the time of the dispositional hearing.   In addition, rather than trusting or assuming that a future court will refer to an appellate opinion contained in the file if further proceedings occur upon violation of probation, we believe the better practice is to strike the order setting a maximum term of confinement.  (See In re Matthew A. (2008) 165 Cal.App.4th 537, 541.)

DISPOSITION

The order is modified by striking the order setting a five-year maximum term of confinement.   In all other respects, the order is affirmed.   The juvenile court is directed to correct the minute order of the disposition hearing accordingly.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

CHAVEZ

We concur:

FOOTNOTES

FN1. All further statutory references are to the Welfare & Institutions Code unless otherwise noted..  FN1. All further statutory references are to the Welfare & Institutions Code unless otherwise noted.

FN2. The Ali A. court also addressed the minor's argument that the juvenile court failed to exercise its discretion in setting the maximum term of physical confinement pursuant to section 731, former subdivision (b), because that section permitted the juvenile court to set the maximum term of confinement at less than the highest of three statutory terms for the offense.  (Ali A., supra, 139 Cal.App.4th at p. 572.)   The court concluded that because the statute only applied to a minor committed to the CYA, it was not applicable..  FN2. The Ali A. court also addressed the minor's argument that the juvenile court failed to exercise its discretion in setting the maximum term of physical confinement pursuant to section 731, former subdivision (b), because that section permitted the juvenile court to set the maximum term of confinement at less than the highest of three statutory terms for the offense.  (Ali A., supra, 139 Cal.App.4th at p. 572.)   The court concluded that because the statute only applied to a minor committed to the CYA, it was not applicable.

_, P.J. BOREN _, J. ASHMANN–GERST