Filed 6/25/14 In re Tatyana S. CA4/1
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COURT OF APPAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re TATYANA S., a Person Coming
Under the Juvenile Court Law.
D064379
THE PEOPLE,
Plaintiff and Respondent, (Super. Ct. No. JCM233370)
v.
TATYANA S.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Carlos O.
Armour, Judge. Affirmed as modified
Maria Leftwich, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa
Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
The juvenile court declared Tatyana S. a ward of the court after finding that she
had committed assault by means of force likely to produce great bodily injury (Pen.
Code, § 245, subd. (a)(4)). Tatyana was placed in the custody of her parents, under the
supervision of the probation department. At the disposition hearing, the court set a
maximum term of confinement of four years. All parties agree the court erred in so
doing. At issue here is whether the erroneous maximum term of confinement should be
stricken from the order.
We hold that it should and order the maximum term of confinement to be so
stricken.
BACKGROUND
In December 2013, Tatyana was involved in a physical altercation with another
woman.1 The San Diego District Attorney filed a petition pursuant to section 602 of the
Welfare and Institutions Code alleging, inter alia, that Tatyana had committed assault by
means of force likely to produce great bodily injury.
At the conclusion of the adjudication hearing, the court sustained the petition,
finding that Tatyana had indeed violated Penal Code section 245, subdivision (a)(4). The
court advised Tatyana that the maximum sentence for such a violation was four years.
1 A full recitation of the facts is omitted, as the only issue presented on appeal is the
propriety of the court setting a maximum term of confinement.
2
At the disposition hearing a few weeks later, the court set Tatyana's maximum
term of confinement at four years. The court released Tatyana into the custody of her
parents, under the supervision of the probation department, subject to several conditions.
DISCUSSION
Welfare and Institutions Code section 726, subdivision (d) 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."
Such a determination of a maximum term of confinement is only required (and,
indeed, only authorized) when the minor is removed from the custody of his or her
parents. (In re Matthew A. (2008) 165 Cal.App.4th 537, 541.) Because Tatyana was not
removed from the custody of her parents, as the parties note, the court erred in
establishing a maximum term of confinement. (See ibid.) Such an unauthorized
determination is without legal effect. (In re Ali A. (2006) 139 Cal.App.4th 569, 574.)
Courts are divided on the proper remedy for such an unauthorized and ineffectual
determination. Some have reasoned that, as the maximum term of confinement is
without legal effect, the minor is not prejudiced by the error and thus no remedy is
required. (See, e.g., In re Ali A., supra, 139 Cal.App.4th. at p. 574.) Others have opted
instead to strike the erroneous language from the order, to discourage future courts from
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continuing the practice. (See, e.g., In re Matthew A., supra, 165 Cal.App.4th at p. 541; In
re A.C. (2014) 224 Cal.App.4th 590, 592.)
In the instant case, we note that the threat of actual harm to Tatyana posed by this
erroneous language is exceedingly low. Should Tatyana violate the terms of her
probation in the future, a further hearing would be required to modify the disposition of
this case and remove her from her parents' custody. (See In re Ali A., supra, 139
Cal.App.4th at p. 573.)
Although the risk of harm to Tatyana is slight, we nonetheless conclude the better
practice is strike the erroneous language from the order. (See In re Matthew A., supra,
165 Cal.App.4th at p. 541; In re A.C., supra, 224 Cal.App.4th at p. 592.) That way, we
can ensure the disposition order is accurate.
DISPOSITION
The maximum term of confinement is ordered stricken from the dispositional
order. The judgment is otherwise affirmed.
BENKE, Acting P. J.
WE CONCUR:
HUFFMAN, J.
McDONALD, J.
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In re Tatyana S. CA4/1
Combined Opinion