In re Brian P.

Filed 10/11/06 In re Brian P. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(El Dorado)

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While on juvenile probation for first degree burglary and misdemeanor possession of a deadly weapon (Welf. & Inst. Code, § 602,^[1] the minor, Brian P., committed a felony violation of Penal Code section 243, subdivision (d), battery with serious bodily injury. The minor admitted a misdemeanor false identification allegation (Pen. Code, § 148.9, subd. (a)) in exchange for dismissal of two allegations involving methamphetamine (transportation and possession) in another juvenile petition. Allegations in another petition that the minor failed to report to the probation officer as directed and failed to attend counseling were dismissed with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754. The juvenile court continued the minor on probation and, as one term of probation, ordered him committed to the South Lake Tahoe Challenge Program for 223 days.

The minor appeals. He contends (1) the juvenile court erroneously calculated his maximum period of confinement without considering whether to impose less than the maximum as provided by section 731, subdivision (b) and (2) one of the written terms of probation fails to reflect the oral pronouncement of the juvenile court. We agree that the written term of probation requires correction to reflect the court’s oral pronouncement but conclude that the juvenile court properly specified the minor’s maximum period of confinement.

FACTS

The 17-year-old minor beat up Ricardo D., a 13-year-old boy. They were in a park playground with their respective friends. An argument started and racial slurs were flung back and forth. The minor spat sunflower seeds at Ricardo who spat back. The minor punched Ricardo in the head and the minor continued to hit Ricardo when he was on the ground. Ricardo lost consciousness. Ricardo was taken to the hospital where he remained for five days. Upon release and to the date of the minor’s jurisdictional hearing, Ricardo had to use a wheelchair and a walker because of his symptoms of dizziness, vomiting and headaches.

The juvenile court denied the minor’s request that the battery with serious bodily injury offense be reduced to a misdemeanor.

DISCUSSION

I

In continuing the minor as a ward of the court, removing him from his mother’s custody and committing the minor to the South Lake Tahoe Challenge Program as a condition of probation, the juvenile court advised the minor that he had “seven years, two months in custody hanging over [his] head.”^[2] Later the court noted that it had already “told [the minor] what [] the maximum penalty is,” that is, seven years two months. Citing section 731, subdivision (b), the minor claims that the juvenile court erred by failing to exercise its discretion and impose less than the maximum confinement based upon the facts and circumstances before the court.^[3]

Here, the court continued the minor as a ward of the court and continued the minor on probation. The minor was not committed to the California Youth Authority (CYA).^[4] The minor was removed from the physical custody of his mother and the court properly specified the maximum period of physical confinement should he subsequently be committed to CYA (§ 726, subd. (c)).^[5] The court has not committed the minor to CYA. Section 731, subdivision (b) is not applicable here. (See In re Ali A. (2006) 139 Cal.App.4th 569, 571-574.)

Citing In re David H. (2003) 106 Cal.App.4th 1131, the minor claims once the maximum term has been calculated, recalculation is prohibited and the maximum term specified “will become an uncontestable benchmark in any subsequent proceeding[].” David H. is not applicable here because David H. was committed to CYA. (Id. at p. 1133.)

The prior probation/disposition orders specified the maximum term of confinement with respect to the previously sustained petitions. The most recent probation/disposition order specified the maximum term of confinement as six years four months. After the current petition was sustained, the court stated that the maximum term of physical confinement is seven years two months. Cases in which section 731, subdivision (b) has been interpreted involve minors committed to CYA. (In re Carlos E. (2005) 127 Cal.App.4th 1529; In re Sean W. (2005) 127 Cal.App.4th 1177.) The minor’s reliance upon those cases is thus misplaced.

Section 731, subdivision (b) applies only to commitments to CYA which may never occur. Assuming otherwise, the juvenile court will have to determine a new maximum term based on the minor’s behavior which led to the CYA commitment. Thus, we need not direct the juvenile court to clarify that the maximum term is subject to modification if the minor is ever committed to CYA as the minor requests. We trust that the juvenile court will recognize its authority under section 731, subdivision (b).

II

The juvenile court orally ordered the minor not to “associate with anyone else you know is on probation, or Randy Bowen.” The written order of probation provides that the minor is not to associate with “anyone on probation or Randy Bowen.” The minor contends that the written order of probation must be corrected to reflect the oral pronouncement of the disposition by the juvenile court, that is, that the minor not associate with anyone he knows is on probation.

The Attorney General, misinterpreting the minor’s argument, responds that the minor’s failure to object to the condition as unconstitutionally overbroad has “waived” the claim on appeal. Quoting from In re Tyrell J. (1994) 8 Cal.4th 68 at page 81, the Attorney General argues in the alternative that, “a condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court.”

As the minor replies, the juvenile court’s oral pronouncement of the condition restricting the minor’s association with persons whom he knows to be on probation demonstrates the juvenile court’s intent to order a condition based upon constitutional principles. (In re Justin S. (2001) 93 Cal.App.4th 811, 816.) We will order the written order of probation corrected to reflect the juvenile court’s oral pronouncement of the condition.

DISPOSITION

The juvenile court is directed to prepare a corrected written order of probation reflecting the juvenile court’s oral pronouncement that the minor not associate with anyone he knows to be on probation. The judgment (probation/disposition order) is affirmed.

CANTIL-SAKAUYE , J.

We concur:

BLEASE , Acting P.J.

NICHOLSON , J.

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^[1] Hereafter, undesignated section references are to the Welfare and Institutions Code.

^[2] Section 726, subdivision (c), provides:

“(c) 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.

“As used in this section and in Section 731, ‘maximum term of imprisonment’ means the longest of the three time periods set forth in paragraph (2) of subdivision (a) of Section 1170 of the Penal Code, but without the need to follow the provisions of subdivision (b) of Section 1170 of the Penal Code or to consider time for good behavior or participation pursuant to Sections 2930, 2931, and 2932 of the Penal Code, plus enhancements which must be proven if pled.

“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, which includes any additional term imposed pursuant to Section 667, 667.5, 667.6, or 12022.1 of the Penal Code, and Section 11370.2 of the Health and Safety Code.

“If the charged offense is a misdemeanor or a felony not included within the scope of Section 1170 of the Penal Code, the ‘maximum term of imprisonment’ is the longest term of imprisonment prescribed by law.

“‘Physical confinement’ means placement in a juvenile hall, ranch, camp, forestry camp or secure juvenile home pursuant to Section 730, or in any institution operated by the Youth Authority.

“This section does not limit the power of the court to retain jurisdiction over a minor and to make appropriate orders pursuant to Section 727 for the period permitted by Section 607.”

^[3] Section 731, subdivision (b), provides:

“(b) A minor committed to the Department of the Youth Authority 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 convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court. A minor committed to the Department of the Youth Authority 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. This section does not limit the power of the Youth Authority Board to retain the minor on parole status for the period permitted by Section 1769.”

^[4] We use CYA because statutory and case law use the designation although we acknowledge that it is now known as the Division of Juvenile Justice. (Gov. Code, §§ 12838, 12838.5)

^[5] The minor does not dispute that seven years two months is the maximum term of physical confinement.