Opinion
E077991
08-05-2022
In re M.A., a Person Coming Under the Juvenile Court Law. v. M.A., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J289815 Bryan K. Stodghill, Judge. Affirmed.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER, J.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On October 4, 2021, an amended petition under Welfare and Institutions Codesection 602 alleged that defendant and appellant M.A. (Minor) committed second degree robbery under Penal Code section 211 (count 1), and unlawful possession of a firearm by a minor under Penal Code section 29610 (count 2). On October 5, 2021, after a hearing on the petition, the juvenile court found both allegations to be true.
All further statutory references will be to the Welfare and Institutions Code unless otherwise specified.
On October 20, 2021, the juvenile court declared Minor a ward of the court, and ordered him released to the custody of his parents under probation.
On October 27, 2021, Minor filed a timely notice of appeal.
After filing his notice of appeal, Minor filed his opening brief on February 4, 2022. On February 16, 2022, we granted Minor's request to strike his opening brief and file an amended opening brief.
On appeal, Minor contends that the juvenile court erred (1) in setting the maximum term of confinement because he was not removed from his parents' custody; and (2) in setting his maximum term of confinement at five years eight months in light of Senate Bill Number 92 (Sen. No. 92), which now limits the maximum term of confinement to the midterm of imprisonment. The People agree that the court miscalculated the maximum term of confinement. The People, however, argue that the court properly set the maximum term of confinement. We agree with Minor on both counts. We, however, affirm the disposition order because the order does not contain a maximum term of confinement; the juvenile court only orally pronounced the maximum term of confinement.
B. FACTUAL HISTORY
On June 3, 2021, around 10:40 p.m., the victim was sitting in his car after it broke down. As the victim tried to start the car, Minor approached and knocked on the driver's window. Minor asked the victim what neighborhood he was from. The victim responded that he was not from anywhere. As Minor walked away toward the back of the car, the victim watched him in the rearview mirror. The victim saw Minor pull out a revolver and load it with bullets.
Thereafter, Minor returned, cocked the gun, and threatened to kill the victim if he failed to do what Minor demanded. The victim exited his car when Minor said that he would shoot the victim if he did not get out of his car. Minor then asked the victim if he had any methamphetamine; the victim responded that he did not. The victim asked Minor if he wanted money and pulled out $100 from his wallet. Minor took the $100 along with the victim's wallet. The wallet contained an additional $600 in cash.
After taking the victim's wallet, Minor ordered the victim back into his car. Minor followed the victim into the car. Minor then searched the car. Finding nothing of value, Minor ran off.
The following morning, Minor's mother saw a wallet fall out of Minor's pocket. When she opened the wallet, she found the victim's residency card and other items; she did not find any cash. Minor's mother also found a bullet near the area where Minor slept and saw him carrying a large amount of cash. The mother put the wallet and bullet into a Ziploc bag and drove to the police station. She handed the bag over to an officer.
After conducting an investigation, the police discovered that Minor lived about 150 yards from the location of the robbery. The victim identified his wallet and Minor's photograph from a photographic line-up. Detectives returned the wallet to the victim, and later arrested Minor.
DISCUSSION
On appeal, Minor contends that (1) the juvenile court erred in setting a maximum term of confinement for Minor because he was not removed from his parents' custody; and (2) the juvenile court erred in calculating Minor's term of confinement at five years eight months.
A. SENTENCING MINOR TO THE MAXIMUM TERM
Minor contends that "[i]t is improper for a juvenile court to set a maximum term of confinement in a case where the minor is not removed from the parental home. (In re A.C. (2014) 224 Cal.App.4th 590, 592 [A.C.]; In re Ali A. (2006) 139 Cal.App.4th 569, 571 [(Ali A.)]; In re Matthew A. (2006) 165 Cal.App.4th 537, 541 [Matthew A.].)" The People, however, contend that "[e]ven though the court released [Minor] to the custody of his parents, it also sentenced him to custody time. Because the court sentenced [Minor] to custody time, it appropriately calculated and made a finding regarding his maximum period of confinement."
Under section 726, subdivision (d), when a minor is removed from the physical custody of the minor's parents, the juvenile court must specify the maximum term of imprisonment that could be imposed upon an adult convicted of the same offenses or offense. (See § 726, subd. (d).) A determination of a maximum term of confinement is only required, and only authorized, when the minor is removed from the custody of the minor's parents. (Matthew A., supra, 165 Cal.App.4th at p. 541; see also Ali. A., supra, 139 Cal.App.4th at pp. 573-574.)
In this case, at the dispositional hearing, the juvenile court declared Minor a ward of the court and placed him in the custody of his parents. Minor was not removed from his parents' custody. In fact, the order states: "Court orders Minor released from juvenile hall to mother forthwith." However, in addition, the court ordered Minor "to serve 16 days of custody time in juvenile hall with credit for 16 days served." Minor was not remanded to serve the 16 days because he was given credit for days spent in juvenile hall and house arrest during the pendency of these proceedings. In total, the juvenile court granted Minor 86 days of custody credit.
Based on the language whereby the court ordered Minor "to serve 16 days of custody time," the People argue that, because the juvenile court ordered Minor "to serve 16 days of custody time," the court did not err in sentencing Minor to the maximum term. We disagree with the People's analysis.
Section 726, subdivision (d)(1), provides: "If the minor 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, 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." However, when a minor is not removed from the physical custody of the minor's parent or custodian as a result of criminal violations sustained under section 602, section 726, subdivision (d), does not apply and the juvenile court is without authority to set a maximum term of confinement. (Matthew A., supra, 165 Cal.App.4th at p. 541; Ali A., supra, 139 Cal.App.4th at p. 571 ["When a juvenile ward is allowed to remain in his parents' custody, there is no physical confinement and therefore no need to set a maximum term of confinement"], overruled on another ground in A.C., supra, 224 Cal.App.4th at p. 592.)
Here, the minor was not removed from parental custody at the disposition hearing. In fact, the court ordered "Minor released from juvenile hall to mother forthwith" in the disposition order. Therefore, as the court noted in Ali A., with no physical confinement, there is "no need to set a maximum term of confinement." (Ali A., supra, 139 Cal.App.4th at p. 571.) Accordingly, the juvenile court erred in specifying a maximum term of confinement.
The courts are divided on the proper remedy for an unauthorized determination of setting a maximum term of confinement. Some courts have reasoned that, as the maximum term of confinement is without legal effect, the minor is not prejudiced by the error and thus no remedy is required. (See, e.g., Ali A., supra, 139 Cal.App.4th at p. 574.) Other courts have opted instead to strike the erroneous language from the order, to discourage future courts from continuing the practice. (See, e.g., Matthew A., supra, 165 Cal.App.4th at p. 541; A.C., supra, 224 Cal.App.4th at p. 592.)
In this case, the juvenile court orally set Minor's maximum term of confinement, but the disposition order does not contain language regarding a maximum term of confinement. Therefore, the People argue that, because the written disposition order did not contain a maximum term of confinement, there was in effect no error, and no correction is needed. (Cf. In re P.A. (2012) 211 Cal.App.4th 23, 30-32 [court's oral statement of maximum term at jurisdiction hearing was of no consequence and was not error.) We agree with the People, and conclude that there in effect was no error in the order.
B. MAXIMUM TERM OF CONFINEMENT CALCULATION
Minor contends that the juvenile court miscalculated his maximum confinement period because the judge failed to consider the changes to section 726, subdivision (b)(1), pursuant to Sen. No. 92. The People agree. Although we find that the court erred in setting a maximum term of confinement for Minor, we address this issue in the interest of justice. If Minor violates probation and is removed from his parents' custody, the juvenile court shall recalculate Minor's maximum term of confinement consistent with this opinion.
Under section 726, subdivision (d)(1), when a juvenile court removes a minor from the physical custody of his or her parent or guardian as a result of a wardship order, the court must specify the maximum time of confinement. (In re Edward B. (2017) 10 Cal.App.5th 1228, 1238.) Effective May 14, 2021, Sen. No. 92 (2021-2022 Reg. Sess.) amended section 726, subdivision (d)(1), to limit the maximum term of confinement to the middle term of imprisonment that could be imposed upon an adult convicted of the same offense or offenses. (Stats. 2021, ch. 18, §§ 7, 23.)
In this case, Minor was charged and sentenced for second-degree robbery and being a minor in possession of a firearm. Under Penal Code section 213, subdivision (a)(2), robbery is punishable by imprisonment for two, three, or five years in prison. Under Penal Code sections 1170, subdivision (b), and 29700, subdivision (a)(3), a minor found in possession of a firearm is punishable by 16 months, two years, or three years in prison.
Minor committed the offenses at issue on June 3, 2021, one month after the effective date of Sen. No. 92. At the dispositional hearing on October 20, 2021, the juvenile court referred to the probation department's disposition report, and found Minor's maximum time of confinement to be five years eight months, as follows: (1) maximum term of five years for robbery; and (2) one-third the middle term of two years, or eight months, for the firearm possession.
Under revised section 726, subdivision (d)(1), the probation department and the court miscalculated the maximum period of confinement. The maximum term should be reduced from five years eight months to three years eight months because the middle term of imprisonment for second degree robbery is three years.
Therefore, should the juvenile court need to set a maximum term of confinement for Minor, it is ordered to calculate the confinement pursuant to revised section 726 pursuant to Sen. No. 92.
DISPOSITION
The orders of the juvenile court are affirmed.
We concur: RAMIREZ, P. J., FIELDS, J.