Filed 8/28/17 In re Cheyenne B. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
| In re CHEYENNE B., a Person Coming Under the Juvenile Court Law. |
|
|
THE PEOPLE,
Plaintiff and Respondent,
v.
CHEYENNE B.,
Defendant and Appellant.
|
F075360
(Super. Ct. No. JW136819-00)
OPINION |
THE COURT*
APPEAL from an order of the Superior Court of Kern County. Lorna H. Brumfield, Judge.
Karriem Baker, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Minor Cheyenne B. contends on appeal (1) the juvenile court erred in setting a maximum term of confinement and (2) the dispositional order requires correction. The People concede and we agree. We modify the dispositional minute order and affirm as modified.
PROCEDURAL SUMMARY
On December 20, 2016, a petition was filed alleging that minor was a person described by Welfare and Institutions Code section 602[1] in that she resisted an officer (Pen. Code, § 148, subd. (a)(1); count 1, a misdemeanor) and committed a battery (Pen. Code, § 243, subd. (a); count 2, a misdemeanor).
On January 26, 2017, at the jurisdictional hearing, count 2 was dismissed on the prosecution’s motion. The juvenile court found the allegation in count 1 true.
The same day, at the dispositional hearing, the juvenile court adjudged minor a ward of the court, placed her on probation, and released her to her father’s custody. The court found her maximum confinement time to be one year, minus 24 days of credit for time served. The court ordered her to complete 64 hours in the Juvenile Court Work Program.
On March 23, 2017, minor filed a notice of appeal.
DISCUSSION
I. Maximum Term of Confinement
Minor contends, and the People agree, that the juvenile court erred when it set a maximum term of confinement because minor had not been removed from her parents’ custody. Section 726, subdivision (d)(1) provides: “If the minor is removed from the physical custody of his or her 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 maximum 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.” By its express terms, this section applies only if the minor is removed from the physical custody of her parent or guardian. (Ibid.) “When a juvenile ward is allowed to remain in [her] parents’ custody, there is no physical confinement and therefore no need to set a maximum term of confinement.” (In re Ali A. (2006) 139 Cal.App.4th 569, 571, overruled on another point in In re A.C. (2014) 224 Cal.App.4th 590, 592.) We will strike the maximum term of confinement. (In re Matthew A. (2008) 165 Cal.App.4th 537, 541.)
II. Correction of Minute Order
The parties also agree that the dispositional minute order fails to reflect the juvenile court’s oral pronouncement of judgment. The minute order states that minor must obtain consent from the probation officer before leaving Kern County, but this differs from the court’s oral order, which requires only that she advise the probation officer. Where there is a discrepancy between the oral pronouncement and the minute order of the court’s disposition, the oral pronouncement generally controls. (People v. Mitchell (2001) 26 Cal.4th 181, 185-186; People v. Hartley (2016) 248 Cal.App.4th 620, 637.) We have the authority to correct such discrepancies. (People v. Mitchell, supra, at p. 185.) We will correct the minute order to reflect that the juvenile court ordered minor not to leave Kern County without first advising her probation officer.
DISPOSITION
The maximum term of confinement is stricken. The following probation condition is stricken: “not leave the County of Kern without first obtaining consent of his/her probation officer” (unnecessary capitalization omitted). The clerk of the court is directed to amend the January 26, 2017, dispositional order as follows: (1) remove the maximum term of confinement; and (2) replace the stricken probation condition with the following: “not leave Kern County without first advising her probation officer of her projected whereabouts.” The clerk is further directed to send certified copies of the amended minute order to the appropriate authorities. As so modified, the findings and orders of the juvenile court are affirmed.
* Before Franson, Acting P.J., Meehan, J. and Black, J. †
† Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article IV, section 6 of the California Constitution.
[1] All statutory references are to the Welfare and Institutions Code unless otherwise noted.
