Opinion
A147813
12-19-2019
In re Tommy M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. TOMMY M., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. JW 15-6136)
Tommy M. (Tommy), when one month shy of his 18th birthday, participated in the robbery of a young woman's cell phone and then ran from the police when they tried to apprehend him. He was adjudged a ward of the court as a result, with true findings that he had committed a felony second degree robbery (Pen. Code, §§ 211, 212.5) and resisted arrest, a misdemeanor (Pen. Code, § 148). He claims on appeal that a police investigator violated his Miranda rights when he asked Tommy for his phone number as biographical identifying data, without administering a Miranda warning. (Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).) He further claims the court erred in denying his Marsden motion (People v. Marsden (1970) 2 Cal.3d 118 (Marsden)) and denying his attorney's simultaneous motion to withdraw as counsel due to a "conflict of interest." He contends there was insufficient evidence to identify him as one of the robbers. With respect to disposition, Tommy argues an electronics search condition violated People v. Lent (1975) 15 Cal.3d 481 (Lent) and was unconstitutionally overbroad insofar as it applied to devices other than his cell phone. Finally, Tommy suggests the trial court erred in stating a maximum term of confinement.
This is the second opinion we have filed in this case. After our opinion was filed October 16, 2018, the Supreme Court granted review but deferred briefing pending its decision in In re Ricardo P. (2019) 7 Cal.5th 1113. With Ricardo P. now decided, we have been directed by the Supreme Court to vacate our prior opinion and to reconsider in light of Ricardo P. We hereby do so, and replace our prior opinion with this one, in which we conclude that Tommy's challenge to the electronics search condition is moot because Tommy is no longer on juvenile probation. (See People v. Carbajal (1995) 10 Cal.4th 1114, 1120, fn. 5; In re Charles G. (2004) 115 Cal.App.4th 608, 611.) We also find his final point moot in light of present circumstances. Finding no error in Tommy's other points, we affirm the jurisdiction and disposition orders.
I. BACKGROUND
On June 23, 2015, at about 4:30 p.m., two African-American young men forcibly took a cell phone away from Dan Xie, a 20-year-old Chinese woman, while she sat at a bus stop at the corner of 18th and Mississippi Streets in San Francisco. The first robber to grab for her phone was taller than the other. He had dark skin, short black hair, and he was wearing a dark or black long-sleeved jacket. A second, shorter man, wearing a T-shirt with a white torso with printed letters and black, mid-length sleeves, reached in and grabbed the phone with both hands as the first man struggled with Xie over the phone. The two men got the phone away from Xie. Both men then took off running around the corner, heading north on Texas Street.
Xie told Officer Jose Calvo-Perez that the second robber (D.T.) was "a black male[,] in his twenties[,] wearing a multicolored shirt and jeans." Erica Hollins described the second robber as wearing: "hightop, blue shirt, blue jeans, young."
Following them, Xie saw a third African-American man standing about two blocks away, whom she thought was the "lookout." The two robbers ran to where the third man was standing near a black car with yellow-paper dealership license plates that was parked on the street. By the time Xie caught up with them, the shorter second robber was seated in the driver's seat. The first, taller, robber was standing by the passenger door with Xie's phone in his hand. Xie tried to grab her phone away from him, but the man raised his other hand in a threatening manner toward Xie. He and the third suspect then ran off, going north on Texas Street. The black car pulled away quickly, also heading north on Texas Street. Two elderly women asked Xie what had happened and helped her call the police.
The third suspect was identified by the prosecutor as Donte Glenn, an adult.
Xie's native language is Cantonese. She speaks some English, but the police contacted Language Line for help with translation while interacting with Xie in the field. Xie testified through an interpreter at the contested jurisdiction hearing.
A motorist passing by, Eric Koczab, saw what was transpiring and drove after the black car. After a couple of turns, when the black car turned into oncoming traffic, he abandoned his pursuit and returned to the scene of the robbery, where the victim was still in distress. He described the robbers as two African-American men, one wearing a hoodie with a gray upper-half and black bottom-half and dark pants. He could not describe what the other one was wearing and did not perceive any height difference between them. During the chase, Koczab thought he saw one of the robbers, the "gray hooded individual," running through traffic toward the black car.
Kim Lavalle was standing near her car on the other side of Texas Street when she heard the commotion and saw several people running north on Texas Street. As the black car drove away, Lavalle rushed to Xie to see what had happened. Xie had dropped to her knees and was crying. After speaking with Xie for two seconds, Lavalle got into her car and followed the black car. She soon decided she could not catch up to it, so she started following one of the people who had left the scene on foot. She described him as a tall, slender African-American man with short to medium-length hair. She followed him until she saw him go into the Center Hardware store on Mariposa Street. She then returned to Texas Street where Xie was still waiting and crying. Lavalle announced to those assembled that she had seen one of the men go into the hardware store on Mariposa Street.
Koczab drove Xie to Center Hardware. She waited in the car while Koczab went into the store to see if the two robbers were there. He immediately spotted the man with the gray-and-black hoodie at the front counter, using the store's telephone. Koczab told the store manager what had happened, and the manager approached the man using the phone. The suspected robber then ran out of the store and across Mariposa, with Koczab in pursuit.
The suspect near the hardware store was described by dispatch as a "black male, late teens, early twenties, with an Afro, a black sweater with gray stripes, and red and black shoes." Two plainclothes police officers in the vicinity of the hardware store began pursuing Tommy because he generally fit that description. As they were chasing him, Officer Eric Eastlund yelled repeatedly, "[P]olice[!] [S]top[!]", but Tommy did not stop. The officers gave up the chase after Tommy hopped over two fences and headed into an open area near 16th and Owens Streets. Eastlund's partner radioed for other officers to respond to 16th Street, and Tommy soon was found hiding in the area of 16th and Owens Streets.
Eastlund and his partner, Officer Christopher Leong, went to where Tommy was detained. Eastlund handcuffed him and searched him, finding no cell phones, no weapons, and no contraband. Officer Leong asked Tommy his name and birthdate to identify him. Upon realizing Tommy was a minor, Leong read him his Miranda rights.
Between 5:00 p.m. and 6:00 p.m., Sergeant Stephen Jonas, a police investigator, arrived where Tommy was detained in the back of a patrol car. He knew the case involved a stolen cell phone and knew Tommy's cell phone had not been stolen. He did not know whether Tommy had been Mirandized. Without giving him a Miranda advisement, Jonas asked Tommy his name, birthdate, home address, and phone number; and Tommy answered those questions. Jonas routinely asks the same questions of everyone he talks to in connection with a case: victims, suspects, and witnesses. He asks so he can get in touch with them later.
At the same time Lavalle, Koczab, and the police were tracking down and detaining Tommy, other officers were closing in on D.T. While Xie was at the hardware store, Officer Jose Calvo-Perez let Xie use his cell phone to activate the "Find My iPhone" application. The initial ping from Xie's cell phone registered on Minnesota Street between 18th and 19th Streets. Sergeant Sean Frost was in the vicinity of Minnesota and 18th Streets when he got this information. He continued to travel in response to the moving ping locations until he was at Evans Avenue and Jennings Street. At that point, Frost realized there was only one car, a silver one, traveling in tandem with the pinging phone and concluded the stolen phone was likely in that car. He pulled over the driver.
It turned out the car was driven by Erica Hollins, who sometimes drove for Lyft but was not on the job at that time. She told the police that D.T. approached her car and offered her $20 for a ride, so she accepted. D.T. slid into the passenger seat, and she headed for Third Street and Palou Avenue. Before she knew it, she was being pulled over by the police and handcuffed, along with D.T.
Officer Leong, having now responded to the scene of the car stop, continued to listen for the pinging phone and found it on the floor of Hollins's car behind the driver's seat. Eastlund searched the car and found another cell phone between the passenger's seat and the front door, and a third cell phone in D.T.'s pocket. D.T. also had two live rounds of ammunition in his front pocket. The police also seized Hollins's cell phone. When Sergeant Jonas arrived where the car had been stopped, he addressed both Hollins and D.T., asking them their names, birthdates, addresses, and telephone numbers. Eastlund turned over the four seized cell phones to Jonas.
Once D.T. and Tommy were both in custody, the police organized an in-field cold show in which Tommy was viewed individually, with no other suspects, handcuffed between two police officers. Xie, while "cowering" in the back of a police car about 20 feet away from Tommy, identified him as the first robber: the taller, thinner one who tried to snatch her phone from her hand. Koczab and Lavalle also both identified Tommy as one of the robbers in separate in-field cold shows.
When Xie was taken to the place where the silver car had been stopped and was shown Hollins and Hollins's car, she said she did not recognize either. She was not shown D.T. at that location. She was later shown D.T. at the parking lot of San Francisco General Hospital. She sat in the back of a patrol car, hysterical, shaking, and afraid to look up. When she saw D.T., she let out a gasp and said, " 'That's him! That's the second suspect that took my phone. Same hair[,] face and clothing. He was the driver of the car.' "
To determine whether any of the recovered phones belonged to Tommy, Sergeant Jonas entered the phone number Tommy had given him. One of the phones, an iPhone 4 that had been recovered from D.T.'s pocket, rang. Tommy was thereby further implicated in the robbery because it connected him to D.T., who was found in the same car with the stolen cell phone shortly after the robbery.
After a bench trial, the judge found Tommy had committed the robbery and had resisted, delayed or obstructed the police in violation of Penal Code section 148. He was released to his mother's custody under the supervision of the probation officer. Conditions of his probation included an electronics search condition covering all his electronic devices, including but not limited to cell phones, smart phones, computers, laptops, iPads, and tablets. Tommy timely appealed.
II. DISCUSSION
A. The Alleged Miranda Violation
Tommy claims his rights under Miranda were violated when Sergeant Jonas asked for his phone number, without first giving him the familiar admonishments. The offending questions, in Tommy's view, were posed by Sergeant Jonas, who asked him the preliminary identifying information of name, birthdate, address, and phone number. Because the phone number ended up being a crucial link in the chain of proof of Tommy's involvement in the robbery, Tommy claims Jonas's testimony relating to the ringing of Tommy's phone, after it had been seized from D.T.'s pocket, should have been suppressed as the fruit of a Miranda violation. Without that evidence, he argues, he likely would not have been found to have been involved in the robbery.
Tommy argued in his opening brief that his own statement should have been suppressed. In his reply brief, he admitted the phone number he gave Sergeant Jonas was not in evidence. He confirmed he was seeking suppression of Jonas's testimony that, when he entered the number given him by Tommy, one of the cell phones retrieved from D.T. rang.
In fact, Tommy's answer to Sergeant Jonas's request for his phone number was not put before the trier of fact. Thus, he asks us, in effect, to apply the "fruit of the poisonous tree" doctrine to hold that the evidence of his phone ringing in response to the number Jonas entered should have been suppressed. (Wong Sun v. United States (1963) 371 U.S. 471, 488.) We find it unnecessary to address whether Sergeant Jonas's question was a "routine booking question" and subject to an exception to the Miranda requirements (Pennsylvania v. Muniz (1990) 496 U.S. 582, 601-602), or instead was custodial interrogation that the "police should [have] know[n] [was] reasonably likely to elicit an incriminating response from the suspect," (Rhode Island v. Innis (1980) 446 U.S. 291, 301, fn. omitted; see generally People v. Elizalde (2015) 61 Cal.4th 523, 531-532, 538-539), for the fruit of the poisonous tree doctrine simply does not apply.
People v. Case (2018) 5 Cal.5th 1 recognized that the doctrine applies in the case of a Miranda violation only when the answers that led to further evidence were a "product of police coercion." (Id. at pp. 23-24.) There is no evidence of police coercion in this case. "The fruit of the poisonous tree doctrine does not apply to physical evidence seized as a result of a noncoercive Miranda violation (United States v. Patane (2004) 542 U.S. 630, 637-638, 645; People v. Davis (2005) 36 Cal.4th 510, 552; People v. Whitfield (1996) 46 Cal.App.4th 947, 957) . . . ." (People v. Davis (2009) 46 Cal.4th 539, 598.) Likewise, it does not require suppression of Sergeant Jonas's testimony about the ringing phone. (See People v. Case, supra at pp. 23-27.) This rule sounds the death knell for Tommy's Miranda argument.
B. The Marsden Motion and Counsel's Motion to Withdraw
1. Background
On the first day of trial, Tommy told the judge he wanted a new attorney because his appointed attorney was not fighting hard enough for him. Specifically, he complained his attorney, Mark Friedland, had encouraged him to plead to a strike. At that point, defense counsel represented to the court that "a conflict ha[d] arisen in [his] representation of the minor," and he could not provide Tommy with effective assistance of counsel under the Sixth Amendment going forward. Friedland asked the court to appoint substitute counsel. He specifically requested to withdraw as counsel based on a "conflict of interest."
Nevertheless, upon the court's inquiry, counsel assured the judge he had "discussed every contingency with [his] client with respect to what could happen in this courtroom," and "Tommy ha[d] interpreted [their] discussions in the manner he[] described to the Court," which counsel "respect[ed]." Friedland again asked to be relieved.
The court denied Tommy's Marsden motion with the comment, "Mr. Friedland has been working his tail off for Tommy, trying to work in his best interests, trying to get him out of custody . . . ." The court cited a litany of motions Friedland had argued on Tommy's behalf, including multiple motions to release him from custody and a motion for severance. Stating that "a disagreement regarding potential tactics is not a reason to grant a Marsden motion," the court concluded Tommy's statements did not provide a basis to grant his motion.
The judge then gave Tommy's attorney the opportunity to address the court further, outside of Tommy's presence, on his motion to withdraw. Friedland told the judge that Tommy's mother consistently demonstrated hostility and anger toward him in the form of shouting, cross-examining him on trial strategy, and interfering with the attorney-client privilege. These circumstances led to the "complete pollution" of Friedland's relationship with Tommy. The attorney-client relationship had broken down to the point where Tommy was no longer communicating with Friedland and was reluctant even to sit next to him. Friedland characterized the problem as "more than just differences of opinions" and described Tommy's and his mother's attitude towards him as "overt hostility." Friedland said he could not, "in good conscience[,] go on" because he felt he would never again have confidential communication with Tommy, consistent with his professional responsibilities. Counsel also told the court "at no time did I advise my client to plead to a strike. We discussed various options and the context of release . . . But there was never advice to accept a strike."
The court queried counsel about his preparation for and readiness to go to trial. After being assured that counsel had "done [his] due diligence" and was prepared to proceed with the contested hearing, the court denied the motion to withdraw. The court observed, "Mr. Friedland has plenty of experience dealing with tough parents . . . Tommy did not state anything to the Court that caused it to lose trust. That the relationship between him and his attorney is so broken, so irrevocably broken that he cannot receive a fair trial, and that Mr. Friedland will not do his best in terms of what is in the minor's best interests." Tommy contends his Marsden motion and his attorney's motion to withdraw were improperly denied.
2. Analysis
The denial of a Marsden motion is reviewed for abuse of discretion. (People v. Streeter (2012) 54 Cal.4th 205, 230.) " 'Denial is not an abuse of discretion "unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel." ' " (Ibid.; accord, People v. Clark (2011) 52 Cal.4th 856, 912.) Likewise, "[t]he determination whether to grant or deny a motion by an attorney to withdraw is within the sound discretion of the trial court and will be reversed on appeal only on a clear showing of abuse of discretion." (People v. Sanchez (1995) 12 Cal.4th 1, 37.) We discern no abuse of discretion.
A criminal defendant may request substitute counsel, and an attorney may also move to withdraw as counsel, based upon a complete breakdown in the attorney-client relationship. (Marsden, supra, 2 Cal.3d at p. 123 [defendant's motion]; People v. Cohen (1976) 59 Cal.App.3d 241, 248-249 [attorney's motion].) The court here correctly noted, however, that a disagreement between counsel and his or her client regarding trial tactics ordinarily is not grounds for granting a Marsden motion. (People v. Alfaro (2007) 41 Cal.4th 1277, 1320; People v. Dickey (2005) 35 Cal.4th 884, 922.) Even accepting for argument's sake Tommy's version of the facts, his chief complaint seemed to be that Friedland had encouraged him to accept a plea to a strike offense. (Pen. Code, §§ 1170.12, 1192.7, subd. (c)(19).) A defense attorney's advice to a defendant that he or she should accept a plea bargain does not require a trial court to grant the defendant's Marsden motion. (People v. Abilez (2007) 41 Cal.4th 472, 485-487.) Counsel on appeal minimizes Tommy's complaint about the pressure he felt to admit the robbery offense and instead focuses on the "complete breakdown" of the relationship occasioned by Tommy's mother's interference. But Tommy never mentioned any conflict arising from his mother's attitude toward or advice about Friedland, and the whole subject was not a part of Tommy's Marsden motion.
Strictly speaking, this was more than a tactical disagreement, since the decision whether to enter a plea or go to trial ultimately remains the defendant's, not counsel's. (People v. Robles (2007) 147 Cal.App.4th 1286, 1290.) Tommy could simply have overridden his attorney's advice—assuming there was such advice—and no irreconcilable conflict would have resulted, unless his counsel refused to prepare for and conduct a contested hearing. There was no danger of that in Tommy's case.
Rarely, a disagreement over tactics or over matters as to which the defendant has the final word, such as the right to plead or go to trial, " 'may signal a breakdown in the attorney-client relationship of such magnitude as to jeopardize the defendant's right to effective assistance of counsel.' " (People v. Williams (1970) 2 Cal.3d 894, 905.) This is not such a case. The record belies Tommy's complaint that Friedland was not fighting hard for him. In addition to the various pretrial actions counsel had taken on Tommy's behalf, recited by the court, Friedland later filed a Miranda motion and argued it to the court (albeit unsuccessfully), made objections at trial, cross-examined witnesses, argued against admissibility of exhibits related to the cold show identifications, and argued Tommy's case to the judge. A general complaint of the not-fighting-hard-enough ilk is not grounds for substitution of counsel. (See People v. Abilez, supra, 41 Cal.4th at p. 489 ["[d]efendant's mere allegation that he [does] not trust his defense attorney, without more, [is] insufficient to compel the trial court to replace him"].) Even the prospect that a defendant intends to take the stand and perjure himself—and his attorney's ethical opposition to such a course—does not amount to an irreconcilable conflict requiring substitution of counsel. (People v. Brown (1988) 203 Cal.App.3d 1335, 1338.)
A trial court must grant counsel's motion to withdraw when a "disagreement with counsel results in a complete breakdown in the attorney-client relationship that jeopardizes his right to a fair trial." (People v. Sanchez, supra, 12 Cal.4th at p. 37.) As with the denial of a Marsden request, the judge wields great discretion in determining whether the attorney's description of the conflict discloses a potential deprivation of Sixth Amendment representation for the client. (Ibid.) Tommy points to nothing in the trial transcript to show he received less than zealous representation, and our own review of the record suggests nothing of the sort. The trial judge's confidence in Friedland's performance and dedication should not be second-guessed by an appellate court, when no obvious breakdown in the relationship or deficiency in performance appears from the record. There is no such evidence in this record, and we affirm the trial court's ruling on the Marsden and withdrawal motions.
C. Sufficiency of the Evidence of Identity as a Robber
Tommy also argues the evidence was insufficient to show he was one of Xie's robbers. We review such a claim for substantial evidence from which a reasonable trier of fact could find the minor guilty beyond a reasonable doubt. (People v. Penunuri (2018) 5 Cal.5th 126, 142; In re Daniel C. (2011) 195 Cal.App.4th 1350, 1359.)
This claim is without merit. Xie, Koczab, and Lavalle all identified Tommy as one of the robbers at separate cold shows. His physical features generally matched the description given by Xie: Tommy is an African-American, 5'8" tall, weighs 140 pounds, and was almost 18 at the time. He was apprehended in the vicinity of the robbery shortly after it occurred. His clothing matched the description of the robber's clothing. He ran from the police, though they announced their authority and ordered him to stop. He hid from the police at 16th and Owens Streets. Such behavior is consistent with consciousness of guilt. (People v. Smithey (1999) 20 Cal.4th 936, 982-983 [flight alone is not sufficient to establish guilt, but may be considered evidence of consciousness of guilt]; People v. Marui (1922) 190 Cal. 174, 179 ["consciousness of guilt might be inferred from his immediate flight from the scene of the crime and his remaining in hiding until he was apprehended"]; People v. Vu (2006) 143 Cal.App.4th 1009, 1030.)
And finally, there is the fact that Tommy's telephone rang when Sergeant Jonas entered the number Tommy had given him. The phone had been taken from D.T.'s possession. D.T. was also in constructive possession of Xie's phone at the time, which solidified Tommy's connection to the robbery of Xie. Koczab even testified he thought he saw Tommy making his way through traffic and approaching the black car as it was driving away, which would explain how Xie's phone (and maybe Tommy's own phone) got from Tommy's hands, when Xie caught up with the robbers near the black car, into D.T.'s possession. D.T. then evidently ditched the black car and tried to get a Lyft driver to take him away from the scene. The pinging phone spoiled his plan. Collectively, this was more than enough evidence of Tommy's involvement to warrant a true finding on the robbery allegation.
D. The Electronics Search Condition
At the disposition hearing on March 15, 2016, the juvenile court imposed several terms and conditions of probation. One was an electronics search condition covering "any electronic and/or digital device" in Tommy's possession or under his custody or control, including but not limited to "cell phones, smart phones, iPads, computers, laptops, and tablets." The scope of the search condition included and was not limited to "any and all text messages, voice mail messages, call logs, photographs, videos, e-mail accounts, and social media accounts" including but not limited to "Facebook, Instagram, Twitter, and Snapchat." Tommy was also ordered to provide "any and all passwords to the devices" and "any and all passwords necessary to access the information stated by the Court here on the record." The court explained it did not authorize search of medical and financial "apps" such as Kaiser and Wells Fargo, or online games or music libraries. Defense counsel objected to the imposition of any electronics search condition on grounds it was not sufficiently related to Tommy's prior conduct and on constitutional overbreadth grounds.
The written electronics search condition was as follows: "Any electronic and/or digital device in your possession or under your custody or under your control may be searched at any time of the day or night, by any peace or probation officer, with or without a warrant or with or without reasonable or probable cause. Electronic and/or digital devices include but are not limited to cell phones, smartphones, iPads, computers, laptops and tablets. You are also ordered to provide any and all passwords to the devices upon request to any peace or probation officer, including text/phone messages, Twitter, Facebook, Instagram or Snapchat accounts." --------
We addressed Tommy's claim on the merits in our opinion filed October 16, 2018. The Supreme Court then granted review on January 30, 2019, in docket No. S252722 as a grant and hold for In re Ricardo P., S230923, and People v. Trujillo, S244650. The Supreme Court has since issued its opinion in In re Ricardo P. (2019) 7 Cal.5th 1113 and its order in People v. Trujillo (Oct. 16, 2019, No. S240503)___Cal.5th___ , and on October 23, 2019, the cause was remanded to this court with instructions to "vacate its decision and reconsider the cause in light of In re Ricardo P. (2019) 7 Cal.5th 1113. (Cal. Rules of Court, rule 8.528(d).)" We have since solicited from the parties supplemental briefs "discussing: (1) whether the validity of the probation conditions is moot, e.g., whether the minor's probation term has expired, and whether he is subject to the challenged probation conditions; and if not moot, (2) Ricardo P. and subsequent authority. (See Cal. Rules of Court, rule 8.200(b)(2).)"
On November 15, 2019, Tommy's counsel sent a letter brief to the court acknowledging the matter is "technically moot," but requesting that we address the issue anyway as a matter of novel public importance that might otherwise evade appellate review. On December 2, 2019, the Attorney General filed a letter brief informing us that Tommy's probation was terminated on March 15, 2017, and asking us to dismiss the appeal as moot. We decline Tommy's invitation to further prolong these proceedings. We are confident that any issues remaining after Ricardo P. will be raised in future cases and will not evade appellate review. We will treat the Lent issue as moot.
E. Maximum Term of Confinement
At disposition, the court stated Tommy was subject to a maximum term of confinement of five years, six months. Tommy is correct that a maximum term of confinement should not have been stated because he was placed in his mother's home. Such a statement is called for only when a minor is being removed from parental custody. (Welf. & Inst. Code, § 726, subd. (d)(1).) When a minor is not removed from the physical custody of his or her parent at disposition, however, the court has no statutory authority to state a maximum period of confinement. (In re Matthew A. (2008) 165 Cal.App.4th 537, 541.) When a juvenile court's disposition order for a minor not removed from parental custody includes a maximum term of confinement, the remedy is to "strike the term." (Ibid.; accord, In re A.C. (2014) 224 Cal.App.4th 590, 592.) The Attorney General argues that, because the written disposition order did not contain a maximum term of confinement, there was in effect no error, and no correction is needed. (Cf. In re P.A. (2012) 211 Cal.App.4th 23, 30-32 [court's statement of maximum term at jurisdiction hearing was of no consequence and was not error].) Especially because Tommy is no longer a juvenile and his probationary period has been terminated, this issue is moot and requires no remedy.
III. DISPOSITION
The opinion issued by this court on October 16, 2018, is hereby vacated and replaced with this opinion. The issue raised with respect to the validity of the electronics search condition of probation is hereby dismissed as moot, as is the final issue with respect to the maximum term of confinement. The jurisdiction and disposition orders are affirmed.
STREETER, J. WE CONCUR: POLLAK, P. J.
BROWN, J.