Humes, P.J.

Certified for Partial Publication.

Amanda K. Roze, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Donna M. Provenzano, Supervising Deputy Attorney General, Amit Arun Kurlekar, Deputy Attorney General, for Plaintiff and Respondent.

Humes, P.J. Ernesto L. appeals from a juvenile court dispositional order committing him to the Division of Juvenile Justice (DJJ) after he admitted to committing assault with a firearm. He raises numerous claims, but the principal one involves his entitlement to precommitment credits. Generally, if a minor is removed from a parent's physical custody after being adjudged a ward of the court, the dispositional order must "specify that the minor may not be held in physical confinement for a period in excess of the middle term of imprisonment" that could be imposed on an adult convicted of the same offense. ( Welf. & Inst. Code, § 726, subd. (d)(1).) But if a minor is committed to DJJ in particular, the juvenile court has discretion, "based upon the facts and circumstances," to set an even lower maximum term of physical confinement. (§ 731, subd. (b).) The question presented here is whether the court may elect to apply precommitment credits against the theoretical maximum term under section 726—which we will refer to as the "maximum exposure term"—and not the actual maximum term set under section 731—which we will refer to as the "maximum custodial term."

Relying on In re A.R. (2018) 24 Cal.App.5th 1076, 235 Cal.Rptr.3d 182 ( A.R. ), the only published appellate case on the subject at the time, the juvenile court applied Ernesto's precommitment credits, which totaled over two years, against the maximum exposure term of 14 years, 8 months, not the maximum custodial term of three years. In the published portion of this opinion, we disagree with A.R. and hold that when a minor is committed to DJJ, a juvenile court must apply the minor's precommitment credits against the maximum custodial term. Because the record establishes the juvenile court would have set a higher maximum custodial term had it realized Ernesto's credits would apply against that term, we remand for the court to re-set a maximum custodial term and apply the credits against it.

In the unpublished portion of this opinion, we disagree with Ernesto that the juvenile court erred by committing him to DJJ under section 602.3 and by relying on prior misdemeanors when calculating the maximum exposure term. We also accept the Attorney General's concessions that the maximum exposure term must be reduced and that Ernesto's number of precommitment credits must be updated, and we modify the judgment accordingly. Otherwise, we affirm the judgment as modified.

I.

FACTUAL AND PROCEDURAL

BACKGROUND

The issues on appeal do not require a detailed discussion of the underlying facts. After several gang-related shootings in and around Union City, officers from various jurisdictions formed a plan to arrest suspects they believed were using a stolen car. The night of June 18, 2018, officers located the car and followed it in unmarked cars as it traveled throughout the area. The car began circling a Union City neighborhood associated with the suspects’ rival gang, and the officers decided to execute a "Vehicle Containment Technique," in which one police vehicle "stops in front of the suspect vehicle and reverses into the suspect vehicle's front bumper" while a second police vehicle "simultaneously closes in on the suspect vehicle from behind until the bumpers are locked and the suspect vehicle is securely contained between both officer vehicles."

Two Fremont police officers initiated the technique when the suspects’ car was stopped at a stop sign. Occupants of the suspects’ car immediately started shooting at the officers, neither of whom was hit. Ernesto, who had not been identified as a suspect in the gang-related shootings, and two other minors, who had been, were ultimately apprehended after exiting the car and attempting to escape.

Later that month, the Alameda County District Attorney's Office filed a wardship petition alleging that the juvenile court had jurisdiction over Ernesto, who was then 16 years old, under section 602, subdivision (a). Two years later, after several amendments, the operative petition was filed. It alleged that Ernesto committed the same four felonies against both officers, for a total of eight counts: attempted murder of a peace officer, attempted murder, assault with a firearm, and shooting at an occupied motor vehicle. Numerous gang and firearm enhancements were also alleged. Finally, the petition gave notice of 2015 and 2017 findings that Ernesto committed a misdemeanor, and it sought a hearing on whether he should be transferred to criminal court.

In October 2020, Ernesto admitted one count of assault with a firearm and the accompanying allegations that he personally used a firearm and committed the crime for the benefit of a gang. In accepting the plea, the juvenile court advised Ernesto that he faced a maximum penalty of 14 years, 8 months in a locked facility. The court then dismissed the remaining counts and enhancements, and the prosecution withdrew its motion to transfer Ernesto to criminal court.

A contested dispositional hearing was held over several days in late 2020, with the prosecution seeking commitment to DJJ and Ernesto seeking placement in a county facility, Camp Sweeney, and then in his aunt's care out-of-state to avoid gang influences. Ernesto had performed very well in juvenile hall, but evidence was introduced that he did not qualify for placement at Camp Sweeney because he was already 19 years old and was not planning to transition back to the local community.

On January 12, 2021, the juvenile court ordered Ernesto committed to DJJ and "fixe[d] the maximum period of confinement at three years." After noting it had "discretion to set a higher or lower confinement time," the court explained it "[chose] this as the maximum period of confinement based upon all the facts and circumstances and offenses of the minor, including the severity of the offense, the minor's previous performance on probation, relatively high probability of recidivism in the next year, and the minor's performance while detained at juvenile hall for the current offense." The court then stated, "Credit for time served is 969 days." The following day, the prosecutor informed the juvenile court and Ernesto's trial counsel by email that she had learned "DJJ rejects youth who have less than [one] year to serve." The prosecutor indicated that if Ernesto's 969 days of credits were applied against the three-year maximum custodial term the court had set, he would have only 126 days left to serve. The prosecutor also provided a brief she had filed in Ernesto's co-participant's case in which she suggested that the court lacked authority to order a "commitment that would essentially be only a ‘paper commitment.’ "

At a hearing on January 14, the juvenile court noted the prosecutor had "brought some new information" to light about the DJJ commitment and set the matter for January 21, giving Ernesto's counsel a week to respond. The court directed "the clerk not to prepare the commitment order until that hearing."

Before the January 21 hearing, the prosecutor emailed the juvenile court and Ernesto's counsel to inform them that under A.R. , supra , 24 Cal.App.5th 1076, 235 Cal.Rptr.3d 182, "the [j]uvenile court may apply a youth's credit ONLY to their maximum exposure time pursuant to ... [section] 726 and not to the DJJ maximum term of confinement set by the court pursuant to ... [section] 731." The prosecutor asked the court to "supplement the record for ... [Ernesto's] disposition to clarify how [it] intended the credits to be applied" and argued that the court should apply the precommitment credits only to the maximum exposure term, not to the maximum custodial term.

At the January 21 hearing, the juvenile court stated its understanding that DJJ "need[ed] clarification as to whether ... [the precommitment credits applied] against the maximum time or ... against the three years." The court then indicated its "intention was ... that [Ernesto] would do three years" in DJJ, not serve only 90 to 120 days there, as such a short time would not "allow [him] to materially benefit from [DJJ] services." After hearing argument from the parties, the court concluded that its January 12 dispositional order was "ambiguous as to where the credits should be applied" and that it had the authority to clarify the order. The court then "appl[ied] the [credits] towards the maximum term of confinement of 14 years and 8 months as previously stated."

On January 25, 2021, the superior court filed Ernesto's commitment to DJJ, which specified that his "maximum period of imprisonment" (i.e., his maximum exposure term) was 14 years, 8 months, his "maximum period of confinement" (i.e., his maximum custodial term) under section 731 was three years, and he had 969 days of precommitment credits. Those credits were updated to 1,005 days on February 9. DJJ accepted Ernesto on February 25, and he filed a notice of appeal on March 2. He was transported from juvenile hall to DJJ on June 8.

II.

DISCUSSION

A. The Law Governing Physical Confinement of Wards

We begin with an overview of sections 726 and 731, which together govern the physical confinement of minors committed to DJJ. Section 726 governs the confinement of any minor who "is removed from the physical custody of the minor's parent or guardian as the result of an order of wardship made pursuant to Section 602," and section 731 further governs the confinement of any such minor who is committed to DJJ. ( §§ 726, subd. (d)(1), 731, subd. (b).) Both statutes limit how long in total a minor may be physically confined. (Ibid. )

As this division has explained, "prior to 1976 the confinement of both adult and juvenile felons was subject to an indeterminate system ‘which gave courts or administrative agencies broad discretion to set each individual term of confinement on the basis of various factors, including the circumstances of the offense and the offender's progress toward rehabilitation.’ " ( In re A.G. (2011) 193 Cal.App.4th 791, 799, 122 Cal.Rptr.3d 291 ( A.G. ).) In 1976, the Legislature enacted the determinate sentencing law for adults, under which "for any particular felony the [sentencing] court must select among one of three sentence terms." ( Ibid. ) Although "the Legislature left unchanged the indeterminate system for juvenile offenders," it amended sections 726 and 731 to address People v. Olivas (1976) 17 Cal.3d 236, 131 Cal.Rptr. 55, 551 P.2d 375, which held "that equal protection prohibits the confinement of a minor for a period of time longer than the sentence that would be imposed on an adult for an equivalent crime." ( A.G. , at p. 800, 122 Cal.Rptr.3d 291.) Both statutes now "provide[d] for the first time that any juvenile court order for an offender's physical confinement ... must expressly be limited in duration to the ‘maximum term of imprisonment’ ... for an adult convicted of the same offense or offenses." ( In re Jovan B. (1993) 6 Cal.4th 801, 818, 25 Cal.Rptr.2d 428, 863 P.2d 673, italics omitted.) This "maximum term of imprisonment" referred to "the longest of the triad of determinate sentences plus any proven enhancements." ( A.G. , at p. 800, 122 Cal.Rptr.3d 291.)

Two further statutory amendments are relevant here. First, in 2003, section 731 was amended to preserve "[t]he provision prohibiting the confinement of a minor for longer than the maximum term of imprisonment ..., but the following sentence was added immediately following: ‘A minor committed to ... [DJJ] also may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court, which may not exceed the maximum period of adult confinement as determined pursuant to this section.’ " ( A.G. , supra , 193 Cal.App.4th at pp. 800–801, 122 Cal.Rptr.3d 291.) This language conferred on juvenile courts the " ‘discretion to impose less than the adult maximum term of imprisonment when committing a minor to [DJJ].’ " ( In re Christian G. (2007) 153 Cal.App.4th 708, 714, 63 Cal.Rptr.3d 215.) Second, both sections 726 and 731 were recently amended to provide that a minor may not be held in physical confinement for longer than the middle term of imprisonment under the determinate sentencing law. (Stats. 2021, ch. 18, §§ 7 – 8 ; Stats. 2020, ch. 337, § 28.)

Thus, section 726 currently provides that if a minor is removed from a parent's physical custody, "the order shall specify that the minor may not be held in physical confinement for a period in excess of the middle 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." ( § 726, subd. (d)(1).) This period includes the midterm for a given offense plus enhancements, and in calculating it the juvenile court may "aggregate the period of physical confinement on multiple counts or multiple petitions, including previously sustained petitions adjudging the minor a ward within Section 602." ( § 726, subd. (d)(2)–(3).) "Physical confinement" includes "placement in a juvenile hall ... or in any institution operated by [DJJ]." ( § 726, subd. (d)(5).) Section 731 currently provides that a minor committed to DJJ "shall not be confined in excess of the term of confinement set by the committing court. The court shall set a maximum term based upon the facts and circumstances of the matter or matters that brought or continued the ward under the jurisdiction of the court and as deemed appropriate to achieve rehabilitation. The court shall not commit a ward to [DJJ] for a period that exceeds the middle term of imprisonment that could be imposed upon an adult convicted of the same offense." ( § 731, subd. (b).)

B. A Minor's Precommitment Credits Must Be Applied Against the Maximum Custodial Term Under Section 731.

With this background in mind, we turn to Ernesto's claim that the juvenile court was required to apply his precommitment credits against the maximum custodial term, not the maximum exposure term. This claim presents a question of statutory interpretation we review de novo, "seeking, as always, to ascertain the Legislature's intent so as to give effect to the law's purpose." ( In re Corrine W. (2009) 45 Cal.4th 522, 529, 87 Cal.Rptr.3d 691, 198 P.3d 1102.)

In 1979, our state Supreme Court held that "[i]n order to carry out the mandate of section 726 ... that a juvenile ‘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 same offenses," a juvenile must receive precommitment credits for the time spent in custody before the dispositional order is entered. ( In re Eric J. (1979) 25 Cal.3d 522, 536, 159 Cal.Rptr. 317, 601 P.2d 549 ( Eric J. ); In re Antwon R. (2001) 87 Cal.App.4th 348, 352, 104 Cal.Rptr.2d 473.) The Eric J. minor was committed to the California Youth Authority, DJJ's predecessor. ( Eric J. , at p. 535, 159 Cal.Rptr. 317, 601 P.2d 549.) He argued that he was entitled to precommitment credits under Penal Code section 2900.5 ( section 2900.5 ), which provides for presentence custody credits in criminal proceedings. ( Eric J. , at p. 535, 159 Cal.Rptr. 317, 601 P.2d 549.) The Supreme Court found it unnecessary, however, to decide whether that statute applies directly to juveniles. ( Eric J. , at pp. 535–536, 159 Cal.Rptr. 317, 601 P.2d 549 ; In re Randy J. (1994) 22 Cal.App.4th 1497, 1503–1504, 28 Cal.Rptr.2d 152.) Rather, adopting the reasoning of an earlier Court of Appeal decision, Eric J. concluded that precommitment confinement had to be credited to comply with section 726 ’s requirement that a juvenile "not be held in physical confinement" for longer than the "maximum term of imprisonment" an adult could receive for the same offense. ( Eric J. , at pp. 535–536, 159 Cal.Rptr. 317, 601 P.2d 549, citing In re Harm R. (1979) 88 Cal.App.3d 438, 445, 152 Cal.Rptr. 167.) In other words, Eric J. held that section 726 ’s limit on a minor's time in physical confinement applies to both precommitment and postcommitment confinement.

At the time Eric J. was decided, section 731 echoed section 726 in providing that a minor committed to what is now DJJ "may not be held in physical confinement for a period of time in excess of the maximum period of imprisonment which could be imposed upon an adult" for the same offenses, but section 731 did not yet convey discretion on a juvenile court to set a maximum custodial term lower than the maximum exposure term. (Stats. 1978, ch. 380, § 165.) Thus, sections 726 and 731 used to impose the same limit on physical confinement: an adult's maximum term of imprisonment for the same offenses. But in amending section 731 to give courts discretion to set a lower maximum custodial term, the Legislature added language providing that " ‘[a] minor committed to the [DJJ] also may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court ’ " when exercising that discretion. ( A.G. , supra , 193 Cal.App.4th at pp. 800–801, 122 Cal.Rptr.3d 291, italics added.) In its current form section 731 provides that "[a] ward committed to [DJJ] shall not be confined in excess of the term of confinement set by the committing court." ( § 731, subd. (b).) Thus, although section 726 still limits a minor's physical confinement based on what an adult's "term of imprisonment" would be, section 731 further limits a minor's physical confinement based on the "term of confinement set by the committing court," which is "a possibly lower ceiling set by the relevant ‘facts and circumstances.’ " ( In re Julian R. (2009) 47 Cal.4th 487, 499, 97 Cal.Rptr.3d 790, 213 P.3d 125.)

Applying Eric J. ’s logic to the current statutory scheme, we conclude that when a minor is committed to DJJ, section 731 requires the juvenile court to apply the minor's precommitment credits against the actual maximum custodial term the court imposes, not the theoretical maximum exposure term. As we have said, Eric J. interpreted former section 726 ’s directive that a minor " ‘not be held in physical confinement’ " for longer than a certain period to refer to both precommitment and postcommitment physical confinement. ( Eric J. , supra , 25 Cal.3d at p. 536, 159 Cal.Rptr. 317, 601 P.2d 549.) Likewise, we interpret section 731, subdivision (b) ’s directive that a minor "not be confined" for longer than the maximum custodial term set by the court to refer to both precommitment and postcommitment physical confinement. Therefore, Ernesto's precommitment credits for time spent in juvenile hall should have been credited against the three-year maximum custodial term, since under section 731 Ernesto could not "be confined in excess of" three years total.

A.R. is the primary authority on which the People rely in arguing the juvenile court was not required to apply Ernesto's precommitment credits against the three-year maximum custodial term. In A.R. , the juvenile court committed the minor to DJJ with a maximum custodial term of seven years, less than the 12-year maximum exposure term, but applied the minor's precommitment credits to the 12-year term. ( A.R. , supra , 24 Cal.App.5th at pp. 1079–1080, 235 Cal.Rptr.3d 182.) The Fourth District Court of Appeal concluded this was proper, holding that precommitment credits can be applied to the maximum exposure term instead of to the lower maximum custodial term. ( Id. at pp. 1082–1083, 235 Cal.Rptr.3d 182.) After explaining that section 726 governed the application of precommitment credits, the Fourth District concluded that the juvenile court's disposition satisfied that statute, since "the [m]inor's seven-year maximum term remained lower than the maximum that could have been imposed upon an adult." ( A.R. , at pp. 1083–1084, 235 Cal.Rptr.3d 182.)

But A.R. assumed that " ‘[a] juvenile's entitlement to predisposition custody credit is determined by [ section] 726,’ " without accounting for section 731 ’s effect when the juvenile is committed to DJJ. ( A.R. , supra , 24 Cal.App.5th at p. 1083, 235 Cal.Rptr.3d 182, quoting In re Emilio C. (2004) 116 Cal.App.4th 1058, 1067, 11 Cal.Rptr.3d 85.) To support the quoted proposition, Emilio C. cited Eric J. , but Eric J. does not establish that a minor's entitlement to precommitment credits is based exclusively on section 726. As explained above, when Eric J. was decided, section 731 repeated section 726 ’s limit on physical confinement to an adult's maximum term of imprisonment for the same offense and did not permit a juvenile court to set a lower maximum custodial term. Thus, although section 731 also applied to the Eric J. minor, the Supreme Court had no reason to analyze the statute separately from section 726 because they said the same thing.

In contrast, when A.R. was decided, section 731 provided not only that "a ward committed to DJJ cannot be held longer than the ‘maximum period of imprisonment’ applicable to an adult" but also that " ‘[a] ward committed to [DJJ] also may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstances.’ " ( A.R. , supra , 24 Cal.App.5th at p. 1083, 235 Cal.Rptr.3d 182, italics added, quoting former § 731, subd. (c).) Thus, while A.R. correctly observed that the juvenile court's application of precommitment credits against the 12-year term did not violate section 726 ( A.R. , at pp. 1083–1084, 235 Cal.Rptr.3d 182 ), in our view the dispositional order in that case was inconsistent with former section 731 because it allowed the minor to be physically confined at DJJ for up to seven years without regard to the minor's precommitment physical confinement.

To comply with section 731 ’s mandate that "[a] ward committed to [DJJ] ... not be confined in excess of the term of confinement set by the committing court," the minor's precommitment credits must be applied against the "maximum term [the court sets] based upon the facts and circumstances" under that statute—i.e., the maximum custodial term. ( § 731, subd. (b).) Once the juvenile court here set Ernesto's maximum custodial term at three years, it was required to apply his precommitment credits to that term.

Ernesto claims that the proper disposition is to order his immediate release because "with all of his credits for time served, [he] has served more than three years in confinement." The Attorney General concedes that by the time Ernesto was transferred to DJJ, he had accrued 1,125 days of precommitment credits for the time spent in juvenile hall. Since three years is equal to 1,095 days, Ernesto had already spent more than three years in physical confinement before he ever got to DJJ.

The record, however, leaves no doubt that the juvenile court intended for Ernesto to spend a significant period of time at DJJ to permit him to benefit from its services. Once the prosecutor informed the court that DJJ would not accept Ernesto if he had less than a year to serve, as would be the case if his precommitment credits were applied against the three-year term, the court purported to apply those credits against the maximum exposure term. Although this approach was inconsistent with the holding we announce in this decision, it appears that the court would have set a higher maximum custodial term under section 731 had it realized that the term had to include the time Ernesto had spent in juvenile hall. Accordingly, we conclude it is appropriate to remand the matter for the court to reconsider the three-year term in light of our holding that Ernesto's precommitment credits must be applied against it.

C.-D. III.

DISPOSITION

The ruling that Ernesto's precommitment credits apply only to the maximum exposure term under section 726 is reversed. The dispositional order is modified to reflect that Ernesto's precommitment credits total 1,125 days, and the maximum exposure term under section 726 and the maximum custodial term under section 731 are vacated. The matter is remanded to the juvenile court with directions to set a maximum custodial term consistent with this decision and apply Ernesto's precommitment credits against that term. The court shall prepare an amended commitment order reflecting the changes to the dispositional order and forward a certified copy of the amended commitment order to DJJ. The judgment is otherwise affirmed as modified.

WE CONCUR:

Margulies, J.

Banke, J.