Filed 6/25/14 In re Tatyana S. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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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.
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       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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