In re DANIEL M., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent,
v.
DANIEL M., Defendant and Appellant.
E042841
California Court of Appeal, Fourth District, Second Division
November 1, 2007
NOT TO BE PUBLISHED
APPEAL from the Superior Court Ct. No. J203767of San Bernardino County. Eric M. Nakata, Judge. Affirmed with directions.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, and Jeffrey J. Koch, Supervising Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Daniel M. (minor) contends that the juvenile court imposed an illegal maximum confinement time. The People agree with minor. For the reasons set forth below, we shall correct minor’s maximum confinement time from one year eight months to one year six months.
I
FACTUAL AND PROCEDURAL HISTORY
On September 8, 2005, a Welfare and Institutions Code section 602 petition was filed; it alleged that minor committed the crime of vandalism over $400 damage, in violation of Penal Code section 594, subdivision (b)(1). On September 23, 2005, the petition was amended to reduce the vandalism count to a misdemeanor and to add a misdemeanor count of street terrorism in violation of Penal Code section 186.22, subdivision (a). Minor admitted both counts of the amended petition.
All further statutory references are to the Penal Code unless otherwise indicated.
On October 7, 2005, minor was placed in the custody of the probation department for assignment to a suitable foster care facility. Minor was also ordered to pay restitution to the City of Adelanto. The juvenile court further ordered minor to abide by the terms and conditions of probation. The juvenile court found the maximum confinement time of the petition to be one year four months.
A subsequent petition, filed on June 19, 2006, alleged that minor possessed a firearm in violation of section 12101, subdivision (a)(1). On July 14, 2006, the People moved to reduce the charge to a misdemeanor, the court granted the motion, and minor admitted the charge. The juvenile court reimposed the October 7, 2005, terms and conditions of probation, with modifications. The juvenile court found the maximum confinement time to be one year eight months.
Two additional petitions, filed on January 3, 2007, and February 22, 2007, alleged that minor had violated his probation by leaving his suitable placement. Minor admitted the violations on January 11, 2007, and February 23, 2007. He was reassigned to suitable placements on both occasions.
On March 13, 2007, the probation department filed a request for a special hearing. In support of this request, the probation officer explained that minor could not be suitably placed, based upon his medical status. Minor had been given a “walking only” medical status by the staff at juvenile hall due to a bilateral hernia. Minor refused to have surgery to correct his condition while in custody. As a result, minor had been rejected for placement by numerous facilities. The probation officer recommended that minor serve a terminal disposition of 180 days in juvenile hall.
On March 15, 2007, the juvenile court held a special hearing. The court ordered minor to serve 312 days in juvenile hall (with credit for one day). The court arrived at this disposition based on the total confinement time of one year eight months.
II
THE JUVENILE COURT IMPOSED AN ILLEGAL MAXIMUM CONFINEMENT TIME
Minor contends, and the People agree, that the juvenile court imposed an illegal maximum confinement time.
On July 14, 2006, the juvenile court miscalculated an aggregate maximum confinement time of one year eight months. This disposition was based upon the original maximum confinement time of one year four months imposed on October 7, 2005, plus four additional months for violating section 12101, subdivision (a)(1), as a misdemeanor. However, additional maximum confinement time for violating section 12101, subdivision (a)(1), is two, not four, months.
Section 1170.1, subdivision (a), provides that the maximum confinement time is the aggregate of the principal term and the subordinate term(s). The principal term is the greatest term of imprisonment imposed by the court for any of the crimes. The consecutive subordinate term is one-third the middle term of imprisonment for each subsequent felony conviction. (§ 1170.1, subd. (a).) In juvenile cases, this one-third limitation applies whether the violation is a felony or a misdemeanor. (In re Eric J. (1979) 25 Cal.3d 522, 538; In re Claude J. (1990) 217 Cal.App.3d 760, 765.)
Based on section 1170.1, subdivision (a), the juvenile court properly imposed one year for the vandalism charge and four months for the misdemeanor street terrorism charge on October 7, 2005. The court, however, erred in imposing the sentence under section 12101. Section 12101 punishes a minor for possession of a concealed firearm “[b]y imprisonment in the state prison or in a county jail.” (§ 12101, subd. (c)(1).) Here, minor admitted violating section 12101, subdivision (a)(1), as a misdemeanor. Where no other period of punishment is prescribed by law, the maximum confinement of time for a misdemeanor is six months. (§ 19.) Therefore, the juvenile court should have added two months (one-third of six months), instead of four months (one-third of one year), to minor’s previous disposition of one year four months. Accordingly, the proper maximum confinement time for minor should have been one year six months, not one year eight months.
An appellate court “may ‘correct a sentence that is not authorized by law whenever the error comes to the attention of the court.’” (In re Harris (1993) 5 Cal.4th 813, 842.) Based on the reasons set forth above, we shall correct minor’s maximum confinement time to one year six months.
III
DISPOSITION
The juvenile court is directed to issue a new order indicating that minor’s maximum confinement time is one year six months. Therefore, minor should be released from custody no later than November 22, 2007. The clerk of the superior court is directed to provide a copy of the order to the parties and to juvenile hall. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST Acting P.J., KING, J.