In re Rudy L

Filed 5/3/06 In re Rudy L. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Stanislaus County. Hurl W. Johnson, Judge.

Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.

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In a juvenile wardship proceeding, appellant Rudy L. entered into a plea agreement whereby he admitted two of eleven counts: (1) attempted sodomy by force (Pen. Code, §§ 286, subd. (c)(2), 664; count II), and (2) sodomy of a person under the age of fourteen (Pen. Code, § 286, subd. (c)(1); count VII). The remaining counts were dismissed, three with a waiver under People v. Harvey (1979) 25 Cal.3d 754. Following the subsequent disposition hearing on August 22, 2005, the court adjudged Rudy a ward of the court, committed him to the California Youth Authority (CYA)^[1] and declared his maximum period of confinement (MPC) to be nine years, calculated as follows: eight years on count VII, which it determined was the principal term, and one year on count II.

On appeal, Rudy contends, and the People concede, the court failed to exercise its statutory discretion in setting the maximum period of physical confinement. We will remand for further proceedings.

DISCUSSION

Under Welfare and Institutions Code section 731, when a minor is committed to CYA, â€