IN RE: ERIK G. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Minor Erik G. (minor) appeals from the juvenile court's disposition order placing him home on probation and setting a maximum term of confinement.   He contends the court erred in setting a maximum term of confinement because he was not removed from the custody of his parents or guardian.   We agree and order the maximum term of confinement stricken.   As modified, the juvenile court's order is affirmed.

PROCEDURAL BACKGROUND

On May 18, 2010, the Los Angeles District Attorney's Office filed a petition under Welfare and Institutions Code section 602,¹ charging minor with second degree robbery and assault with a deadly weapon.  (Pen.Code, §§ 211, 245, subd. (a)(1).)   On May 20, minor denied the allegations in the petition.

The adjudication proceeded on June 9, 2010.²  After the prosecution rested, minor moved to dismiss for insufficiency of the evidence pursuant to section 701.1.   The juvenile court granted the motion as to the assault with a deadly weapon charge and denied the motion with respect to the robbery count.   Minor presented a defense.   On June 11, the court sustained the robbery allegation.   On September 10, the court placed minor home on probation and set a maximum confinement time of five years, eight months.   The minute order reflects a maximum confinement time of five years.   This timely appeal followed.

DISCUSSION

Minor's sole contention on appeal is that because the juvenile court placed him home on probation, it erred by setting a maximum term of confinement.   He argues the term must be stricken from the minute order.   Although the Attorney General concedes that the court should not have set a maximum term of confinement, she submits that striking the term is unnecessary, as it has no effect.   We agree with minor.

The juvenile court must specify a maximum term of confinement when a minor is removed from the physical custody of his or her parent or guardian after a charge in a petition is sustained. (§ 726, subd. (c).)  As minor was not removed from the custody of his parents, “the necessary predicate for specifying a term of imprisonment does not exist.”  (In re Matthew A. (2008) 165 Cal.App.4th 537, 541.)   The appropriate action is to strike the maximum term of confinement.  (Ibid.)

DISPOSITION

The maximum term of confinement is stricken.   In all other respects, the juvenile court's order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

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

FN2. Given that minor takes issue with only the disposition order, it is not necessary to set forth the evidence presented at the adjudication..  FN2. Given that minor takes issue with only the disposition order, it is not necessary to set forth the evidence presented at the adjudication.

EPSTEIN, P.J. WILLHITE, J.