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. 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

TATYANA S., 

 Defendant and Appellant. 

 D064379 

 (Super. Ct. No. JCM233370) 

 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. 
2 

 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. 
3 

 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 
4 

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.