Filed 3/2/18 In re D.D. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR


In re D.D., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
D.D.,
Defendant and Appellant.
A150859

(Alameda County
Super. Ct. No. SJ13020744-06)


Memorandum Opinion
Appellant D.D. appeals from the juvenile court’s dispositional order arguing the court failed to determine the maximum term of confinement and to calculate his custody credits. Both parties agree the matter must be remanded. Appellant further argues on remand the court cannot impose an aggregated sentence because appellant was not provided sufficient notice. We remand to the juvenile court to specify the maximum period of confinement, exercising its discretion whether to impose an aggregated term, and to calculate appellant’s custody credits.
The Alameda County District Attorney filed a wardship petition pursuant to Welfare and Institutions Code section 602 alleging that D.D., then age 15, kidnapped a victim to commit robbery pursuant to Penal Code section 209, subdivision (b)(1) and committed robbery pursuant to Penal Code section 211. The court conducted a multi-day jurisdictional hearing and found appellant committed robbery but made no finding as to the kidnapping charge.
On March 16, 2017, the court ordered out-of-home placement. The court failed to specify the maximum term of confinement or the amount of custody credits.
The parties agree the case should be remanded to the juvenile court to calculate the maximum period of appellant’s confinement under section 726. When a juvenile court removes a minor from parental custody as a result of an order of wardship, section 726, subdivision (d) mandates that the court “must specify the maximum confinement term, i.e., the maximum term of imprisonment an adult would receive for the same offense. [Citation.]” (In re David H. (2003) 106 Cal.App.4th 1131, 1133; see § 726, subd. (d)(1); Cal. Rules of Court, rule 5.795(b).) The juvenile court failed to comply with this mandate when it sentenced appellant to out-of-home placement.
The parties also agree the juvenile court failed to calculate appellant’s custody credits. A minor is entitled to credit against his or her maximum term of confinement for the time spent in custody before the disposition hearing. (Pen. Code, § 2900.5, subd. (a); In re Edward B. (2017) 10 Cal.App.5th 1228, 1238.)
On remand, the juvenile court must specify appellant’s maximum period of confinement, calculate his custody credits, and prepare an amended order reflecting those calculations. (In re Edward B, supra, at pp. 1238–1239.)
Appellant next argues that when the matter is remanded for the juvenile court to set the maximum term of confinement, the court cannot aggregate consecutive terms without violating appellant’s due process rights because he was not given proper notice.
Appellant had sustained prior section 602 petitions: (1) grand theft from a person in violation of Penal Code section 487 in April 2013, (2) possessing live ammunition in violation of Penal Code section 29650 in September 2013, (3) robbery in violation of Penal Code section 211 in January 2014, and (4) robbery and carjacking in violation of Penal Code sections 211 and 215, subdivision (a) in May 2014.
Section 726 expressly authorizes aggregation on the basis of prior sustained section 602 petitions. (In re Michael B. (1980) 28 Cal.3d 548, 553.) “[¶] If the court elects to aggregate the period of physical confinement on multiple counts, or multiple petitions, including previously sustained petitions adjudging the minor a ward within Section 602, the ‘maximum term of imprisonment’ shall be the aggregate term of imprisonment specified in subdivision (a) of Section 1170.1 of the Penal Code . . . .” (§ 726, subd. (d)(3); In re Ernest R. (1998) 65 Cal.App.4th 443, 448.)
“[W]here the prior offenses are to be considered to aggregate the maximum term to extend it beyond that which could be imposed for the new offense, due process requires notice of the juvenile court’s intention in order to provide the minor with a meaningful opportunity to rebut any derogatory material within its prior record. [Citations.]” (In re Michael B., supra, 28 Cal.3d at p. 553.)
Here, the petition stated: “Notice is hereby given That Petitioner requests that in determining disposition and maximum length of physical Confinement the Court consider the minor’s previous history which consists of findings that the minor has committed: [¶] 1/31/14 211 PC, Felony (5 years), [¶] 4/15/13 487(c) PC, Felony (3 years), [¶] 10/9/13 29650 PC, Misdemeanor (1 year).” On the same page of the petition, the box which states: “Petitioner intends to move for an increase of the maximum term of confinement by aggregating the terms of all previously sustained petitions known to the petitioner at the time of disposition” is not checked.
As noted above, at the dispositional hearing, the court did not address aggregation or provide the maximum term.
Respondent argues the petition provided sufficient notice because no “particular form for the required notice of intent to request aggregation” is required. (In re Steven O. (1991) 229 Cal.App.3d 46, 56.)
We need not resolve the issue of whether appellant received notice because we are remanding the matter to the juvenile court to set the maximum term of confinement. On remand the court will exercise its discretion on whether to aggregate the terms of confinement pursuant to section 726. (See In re Alex N. (2005) 132 Cal.App.4th 18, 25, fn. 2.) On remand, of course, appellant may make any arguments against the juvenile court aggregating the terms of confinement for his various offenses, including the argument that he did not receive proper notice of the intent to aggregate. (See In re Michael B., supra, 28 Cal.3d at p. 553.) In which case, the juvenile court may determine “ ‘the maximum permissible term of physical confinement by means of procedures which give fair notice to the minor and an opportunity to be heard.’ ” (Id. at p. 555, quoting In re Robert S. (1979) 92 Cal.App.3d 355, 363.)
On remand, the juvenile court must exercise its discretion whether to aggregate the terms of confinement, specify appellant’s maximum period of confinement, and calculate his custody credits.








_________________________
RUVOLO, P. J.


We concur:


_________________________
REARDON, J.


_________________________
SCHULMAN, J.*





















* Judge of the Superior Court of California, County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.