IN RE: LUIS H. (1986)

Luis H. appeals from the order continuing wardship entered following his admission that he committed battery (Pen.Code, § 242) and a finding that the previous disposition of the court had not been effective in his rehabilitation (Welf. & Inst. Code, § 777, subd. (a)).  He contends:  “I. The court abused its discretion when it committed the minor to the Youth Authority for misdemeanors;  II. The court abused its discretion when it committed the minor to the Youth Authority for misdemeanors for a maximum period of two years and eight months.   The maximum should have been two years.”

The report of the probation officer prepared for the disposition hearing indicates that prior to the filing of the present petition, appellant had been in suitable placement at the Optimist Boy's Home.   The misdemeanor battery offense he admitted in this proceeding was the result of a fight at the Boy's Home on December 30, 1984.   Appellant also admitted leaving the facility without permission from December 21 to 29, 1984 and again on January 3, 1985 until his arrest on February 8, 1985.   It is further stated in the report that on January 2, 1985 a supervisor of the Boy's Home telephoned the probation officer requesting that appellant be removed due to his negative “gang” activities and fighting.¹

In determining appellant's maximum term of confinement to be two years and eight months, the court selected a violation of Penal Code section 148 as the base term and imposed a sentence of one year.   A consecutive term of two months was imposed on account of the instant misdemeanor matter and for each of appellant's nine other previously sustained misdemeanor petitions for a maximum term of confinement of two years, eight months.²  The court gave appellant credit for 657 days previously served in the Colston Youth Center and Clifton Tatum Center (Juvenile Hall).

In response to an inquiry from the court, the Deputy Probation Officer who prepared the report stated that in her mind the case was a clear-cut California Youth Authority matter.

 Appellant's contention that the court abused its discretion by committing him to the California Youth Authority is meritless.   The record here reveals that the minor had previously been tried home on probation and in at least four different placement facilities.  (Cf. In re Michael R. (1977) 73 Cal.App.3d 327, 140 Cal.Rptr. 716.)   Clearly “the purposes of the Juvenile Court Law could not be accomplished by placement of appellant in a facility less restrictive than the Youth Authority.”  (Footnote omitted;  In re Ricky H. (1981) 30 Cal.3d 176, 184, 178 Cal.Rptr. 324, 636 P.2d 13.)   As there is substantial evidence in the record that commitment to the Youth Authority would be of benefit to the minor, the court did not abuse its discretion in placing him there.  (In re Aline D. (1975) 14 Cal.3d 557, 567, 121 Cal.Rptr. 817, 536 P.2d 65.)

 Appellant's contention that his theoretical maximum term of confinement cannot exceed the double the base term limitation of Penal Code section 1170.1, subdivision (g) is well taken.   Where a minor's sentences are aggregated for multiple offenses, “the maximum adult term is to be computed under the determinate sentencing law whether the offenses be felonies or misdemeanors.”  (In re Deborah C. (1981) 30 Cal.3d 125, 140, 177 Cal.Rptr. 852, 635 P.2d 446;  In re Eric J. (1979) 25 Cal.3d 522, 538, 159 Cal.Rptr. 317, 601 P.2d 549.)   Application of the determinate sentencing law here results in a maximum term of confinement of two years due to the double the base term limitation of subsection (g) of section 1170.1 of the Penal Code.

Accordingly, the order continuing wardship is modified to reflect a total maximum term of physical confinement of two years and, as so modified, the order is affirmed.

FOOTNOTES

1.   On December 29, 1984 appellant burned another resident's hand and hair with a cigarette and then beat him when he said he was going to report it.   On January 3, 1985, just before leaving placement without permission, appellant stabbed another resident with a pencil in the hand and shoulder.   In explaining this incident to the probation officer appellant said he asked for some money from the resident who gave it to him but then “made a smart remark” so appellant “poked” him with a pencil.

2.   Appellant's sustained petitions, including the present matter, consist of five instances of being under the influence of toluene (Pen.Code, § 381), two petty thefts (Pen.Code, § 484), two batteries (Pen.Code, § 242) and one contempt of court for escape while enroute to Little Rock Boy's Ranch (Pen.Code, § 166, subd. (4)).

STONE, Presiding Justice.

GILBERT and ABBE, JJ., concur.