In re G.C. ( 2020 )

IN THE SUPREME COURT OF
CALIFORNIA
In re G.C., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
G.C.,
Defendant and Appellant.
S252057
Sixth Appellate District
H043281
Santa Clara County Superior Court
3-14-JV40902
February 20, 2020
Justice Corrigan authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Chin, Liu, Cuéllar,
Kruger, and Groban concurred.
In re G.C.
S252057
Opinion of the Court by Corrigan, J.
When a minor is found to have committed a so-called
“wobbler” offense, 1 the juvenile court “shall declare the offense
to be a misdemeanor or felony.” (Welf. & Inst. Code, § 702.) 2
The question here is whether G.C. may challenge the court’s
neglect of this mandatory duty in an appeal from a later
dispositional order after the time to appeal the original
disposition expired. Under the current procedural posture, she
may not. The court’s omission was part of the original
dispositional order which became final and binding once that
order was not appealed. G.C.’s failure to timely appeal deprived
the appellate court of jurisdiction. There was no ongoing duty
to correct the error in a later proceeding to modify placement
under section 777, so as to create a cognizable error in that
subsequent disposition. Although section 702 is mandatory,
noncompliance did not make the original dispositional order an
unauthorized sentence that could be corrected at any time.3 The
appellate court correctly dismissed the appeal.
1
A wobbler is a crime that can be punished as either a
felony or a misdemeanor. (See People v. Park (2013) 56 Cal.4th
782, 789; Pen. Code, § 17, subd. (b).)
2
Further unspecified statutory references are to the
Welfare and Institutions Code.
3
Although “juvenile proceedings do not literally result in
‘convictions’ and juvenile confinements are not ‘sentences’ . . . .”
(In re Jovan B. (1993) 6 Cal.4th 801, 812), we have nonetheless
1
In re G.C.
Opinion of the Court by Corrigan, J.
I. BACKGROUND
In 2014, two separate wardship petitions4 were filed
against G.C. in Santa Clara County (Santa Clara; petitions A
and B). They alleged three violations of Vehicle Code section
10851, subdivision (a), for unlawfully driving or taking a vehicle
(auto theft). These offenses are wobblers. (Ibid.) G.C. admitted
all three allegations, which the court found true. G.C. told a
probation officer that she belonged to Kollmar Vagos Trece, a
Sureño gang, and stole the vehicles to sell their parts to buy
drugs.
The minute order described the offenses as felonies, as
they had been charged. However, the court did not declare on
the record whether they were felonies or misdemeanors, as
section 702 requires. A separate box on the minute order, noting
that the court had considered the question, was left unchecked.5
After the jurisdictional hearing, G.C. and her mother moved to
Hayward. The two petitions, along with two others later
admitted, 6 were transferred to Alameda County (Alameda) for
disposition.
The Alameda court accepted the transfer and held a
dispositional hearing on March 13, 2015. There was some
applied the unauthorized sentence doctrine in this context (see
In re Sheena K. (2007) 40 Cal.4th 875, 880–881).
4
Section 602, subdivision (a).
5
The record discloses no agreement between the
prosecution and the defense that would preclude the court’s
exercise of discretion.
6
The two subsequent misdemeanor petitions included
allegations of throwing away her electronic monitoring
transmitter (ankle bracelet) and vandalizing a police car with
the legend “Fuck the Pigs” and gang references.
2
In re G.C.
Opinion of the Court by Corrigan, J.
confusion whether the case was before the court for disposition
on all petitions or just the most recent one. The resulting order
was also less than precise as to which petitions it encompassed.
The court adjudged G.C. a ward, placed her on probation,
removed her from her mother’s custody, and set the maximum
term of confinement at four years six months. The court did not
declare whether the offenses in petitions A and B were
misdemeanors or felonies, but the maximum term of
confinement reflected a felony treatment. G.C. did not appeal
the disposition, and eventually returned to her mother’s
custody.
In October 2015 a section 777 notice to modify disposition
was filed in Alameda alleging that G.C. ran away from home,
violating the terms of her probation. G.C. admitted the
allegation, and the matter was transferred to Santa Clara where
she and her mother had relocated. The transfer was accepted.
At a hearing on November 19, 2015, there was some confusion
about whether G.C. had been declared a ward on petitions A and
B. The court initially stated that it would “continue” G.C. as a
ward in those matters, but in an abundance of caution, declared
her to be so, and incorporated all probation orders from Alameda
as orders of its own. Again, the court did not state on the record
whether the offenses in petitions A and B were misdemeanors
or felonies.
A section 777 dispositional hearing was held on December
30, 2015, and January 26, 2016. The court maintained G.C. in
her mother’s custody under the supervision of the probation
department, with various terms and conditions. On February 1,
2016, G.C. filed a notice of appeal from the Santa Clara
dispositional order challenging “Gang Probation Conditions and
3
In re G.C.
Opinion of the Court by Corrigan, J.
Electronic Search Conditions (of minor’s cellphone, computer,
and social media sites).”
On appeal, G.C. argued that the Alameda court failed to
expressly declare whether the offenses in petitions A and B were
misdemeanors or felonies. A majority of the court concluded
that the issue was not timely raised because G.C. failed to
appeal from the dispositional order on these offenses. (In re G.C.
(2018) 27 Cal.App.5th 110, 114.) The majority rejected G.C.’s
argument that the court’s error was “ ‘ “tantamount to an
unauthorized sentence” ’ ” (id. at p. 115) that could be raised at
any time (id. at p. 116). It expressly disagreed with the contrary
decision in In re Ramon M. (2009) 178 Cal.App.4th 665 (Ramon
M.). (In re G.C., at pp. 112, 115–116.) Having no cognizable
issues before it, the court dismissed G.C.’s appeal. (Id. at p.
117.) The dissenting justice would have held that G.C. was
properly before the court on a timely appeal from the section 777
dispositional order. (In re G.C., at p. 117 (dis. opn. of
Greenwood, P. J.).) The dissent reasoned that “the juvenile
court’s ongoing failure to adhere to Section 702 constituted an
abuse of discretion and resulted in unauthorized orders with
respect to the subsequent disposition of G.C.’s case.” (Id. at p.
118.)
We granted review to resolve the conflict among the
Courts of Appeal.
II. DISCUSSION
The Welfare and Institutions Code incorporates the Penal
Code’s determinate sentencing scheme to set a minor’s
maximum term of confinement. (See § 726, subd. (d)(1)–(4); In
re Jovan B., supra, 6 Cal.4th at pp. 816–819; In re E.G. (2016) 6
Cal.App.5th 871, 881.) In the context of wobblers, section 702
4
In re G.C.
Opinion of the Court by Corrigan, J.
provides: “If the minor is found to have committed an offense
which would in the case of an adult be punishable alternatively
as a felony or a misdemeanor, the court shall declare the offense
to be a misdemeanor or felony.” This declaration must be made
at or before disposition. (In re E.G., at p. 881, fn. 9; Cal. Rules
of Court, rules 5.790(a)(1), 5.795(a); see In re Manzy W. (1997)
14 Cal.4th 1199, 1206–1207 (Manzy W.).) Section 702’s purpose
is twofold. First, it helps determine the length of any present or
future confinement for a wobbler offense. (Manzy W., at p.
1206.) Second, it “ensur[es] that the juvenile court is aware of,
and actually exercises, its discretion under . . . section 702.” (Id.
at p. 1207.)
The parties agree that neither court made the section 702
declaration. It is well established that section 702’s
requirement is “obligatory” rather than “merely ‘directory’ ”
(Manzy W., supra, 14 Cal.4th at pp. 1204, 1207) and requires an
explicit declaration (id. at p. 1204). It is not sufficient that the
offenses were identified as felonies in the wardship petitions and
in the minute order of the jurisdictional hearing, or that they
were treated as felonies for purposes of calculating the
maximum term of confinement. (Manzy W., at pp. 1207–1208;
In re Ricky H. (1981) 30 Cal.3d 176, 191 (Ricky H.).)
In Manzy W. we remanded the matter to the juvenile court
to make the required discretionary finding. (Manzy W., supra,14 Cal.4th at p. 1211.) But in that case a timely notice of appeal
had been filed. (Id. at pp. 1202–1203.) Here, G.C. did not timely
appeal the dispositional order entered in Alameda for petitions
5
In re G.C.
Opinion of the Court by Corrigan, J.
A and B.7 Her claim of error is not cognizable in a later appeal
from the January 26, 2016 dispositional order from Santa Clara
in the section 777 proceeding.
A. Timeliness of Appeal
The Court of Appeal majority dismissed the appeal
because G.C.’s sole challenge related to the dispositional order
on petitions A and B, which was not timely appealed. G.C.
counters that the appeal was timely because all petitions in a
juvenile proceeding are considered one case, and a timely appeal
of one petition confers jurisdiction over all petitions. She also
urges that the Santa Clara court had an ongoing duty to make
the section 702 declaration as part of the current disposition on
appeal. The arguments fail.
A minor may appeal a judgment in a section 602
proceeding “in the same manner as any final judgment.” (§ 800,
subd. (a).) A dispositional order is appealable, and review on
appeal encompasses the court’s jurisdictional findings. (In re
Shaun R. (2010) 188 Cal.App.4th 1129, 1138; In re James J.
(1986) 187 Cal.App.3d 1339, 1342–1343; cf. In re S.B. (2009) 46
Cal.4th 529, 532 [discussing similar provisions of § 395, subd.
(a)(1)].) We independently review the Court of Appeal’s
7
G.C. urges that the dispositional order on petitions A and
B occurred on March 13, 2015 in Alameda. The Court of Appeal
took the view that the dispositional order on those petitions
occurred on November 19, 2015 in Santa Clara. (In re G.C.,
supra, 27 Cal.App.5th at p. 115, fn. 4.) As the Court of Appeal
observed (ibid.), this discrepancy is ultimately immaterial
because G.C.’s notice of appeal was not filed until February 1,
2016, more than 60 days beyond the later date. (See Cal. Rules
of Court, rule 8.406(a)(1).) To avoid confusion, we will refer to
Alameda as the court of disposition, consistent with G.C.’s
argument before us.
6
In re G.C.
Opinion of the Court by Corrigan, J.
dismissal order. (People v. Mendez (1999) 19 Cal.4th 1084,
1099–1100.)
Section 702 addresses the court’s obligations as to the
findings and disposition on the petition. The court must: (1)
hear evidence and make a finding whether or not the minor is a
person described by section 300, 601, or 602; (2) hear evidence
regarding the proper disposition to be made; and (3) declare a
wobbler offense as either a misdemeanor or felony. (§ 702.) The
statutory language, in context, makes clear that this declaration
should be made before or at the time of disposition. (In re E.G.,
supra, 6 Cal.App.5th at p. 881, fn. 9; Cal. Rules of Court, rules
5.790(a)(1), 5.795(a).) 8 Here, the error was ripe for review when
the Alameda court failed to make the required findings upon
disposition of petitions A and B. As noted, G.C. did not timely
appeal that order.
8
California Rules of Court, rule 5.790(a)(1), governing
findings and orders at the disposition hearing, provides: “If the
court has not previously considered whether any offense is a
misdemeanor or felony, the court must do so at this time and
state its finding on the record. If the offense may be found to be
either a felony or a misdemeanor, the court must consider which
description applies and must expressly declare on the record
that it has made such consideration and must state its finding
as to whether the offense is a misdemeanor or a felony.”
California Rules of Court, rule 5.795(a), governing
required determinations at the disposition hearing, provides:
“Unless determined previously, the court must find and note in
the minutes the degree of the offense committed by the youth,
and whether it would be a felony or a misdemeanor had it been
committed by an adult. If any offense may be found to be either
a felony or a misdemeanor, the court must consider which
description applies and expressly declare on the record that it
has made such consideration and must state its determination
as to whether the offense is a misdemeanor or a felony.”
7
In re G.C.
Opinion of the Court by Corrigan, J.
“A timely notice of appeal, as a general matter, is ‘essential
to appellate jurisdiction.’ ” (People v. Mendez, supra, 19 Cal.4th
at p. 1094.) “An untimely notice of appeal is ‘wholly ineffectual:
The delay cannot be waived, it cannot be cured by nunc pro tunc
order, and the appellate court has no power to give relief, but
must dismiss the appeal on motion or on its own motion.’
[Citation.] The purpose of the requirement of a timely notice of
appeal is, self-evidently, to further the finality of judgments by
causing the [party] to take an appeal expeditiously or not at all.”
(Ibid.) As a consequence, “ ‘ “an unappealed disposition or
postdisposition order is final and binding and may not be
attacked on an appeal from a later appealable order.” ’ ” (In re
S.B., supra, 46 Cal.4th at p. 532, quoting Sara M. v. Superior
Court (2005) 36 Cal.4th 998, 1018; accord, In re Isaiah W. (2016)
1 Cal.5th 1, 10 (Isaiah W.); In re Shaun R., supra, 188
Cal.App.4th at p. 1138.) That well-settled law defeats G.C.’s
further right to appellate review on petitions A and B.
In arguing that “[j]uvenile proceedings are all part of one
case” and a timely appeal from the section 777 disposition
conferred appellate jurisdiction over all petitions, G.C. fails to
grapple with clear authority prohibiting a challenge to a final
dispositional order through an appeal from a later order. (In re
S.B., supra, 46 Cal.4th at p. 532.) The one case she does cite, In
re Antoine D. (2006) 137 Cal.App.4th 1314, is inapposite.
Antoine D. held that section 607 authorizes the juvenile court to
retain jurisdiction over a ward until he or she reaches the age of
25 even if the court vacates or modifies a youth authority
commitment. (Antoine D., at pp. 1320–1323.) That case had
nothing to do with the juvenile court’s ongoing jurisdiction for
purposes of filing a notice of appeal.
8
In re G.C.
Opinion of the Court by Corrigan, J.
G.C. also argues that the Santa Clara court had an
ongoing obligation to designate the level of her offenses and that
its failure to do so in the context of the section 777 proceeding
infected that disposition with an error cognizable on appeal. She
looks to Isaiah W., supra, 1 Cal.5th 1, for support, but the
statutory language at issue there differs significantly from
section 702’s provisions. Isaiah W. involved the notice
requirement of the Indian Child Welfare Act of 1978 (ICWA; 25
U.S.C. § 1912(a)), codified in section 224.2. (Isaiah W., at p. 5.)
Under these statutes, the court must notify Indian tribes and
others of an involuntary proceeding to place a child in foster care
or to terminate parental rights “where the court knows or has
reason to know that an Indian child is involved.” (25 U.S.C.
§ 1912(a); accord, § 224.3, subd. (a).) The juvenile court found
the notice requirements of ICWA inapplicable, removed Isaiah
from his parents’ care, and placed him in foster care. Isaiah’s
mother did not appeal the placement order but, over a year later,
did file a timely notice of appeal from a subsequent order
terminating her parental rights. (Isaiah W., at pp. 5–6.)
We held that Isaiah’s mother could challenge the finding
of ICWA inapplicability in the appeal from the later order
terminating parental rights. (Isaiah W., supra, 1 Cal.5th at p.
6.) We explained that “ICWA imposes on the juvenile court a
continuing duty to inquire whether the child is an Indian child,”
(ibid), citing the then-current version of section 224.3,
subdivision (a): “ ‘The court . . . ha[s] an affirmative and
continuing duty to inquire whether a child for whom a petition
under Section 300 . . . has been . . . filed is or may be an Indian
child in all dependency proceedings and in any juvenile
wardship proceedings if the child is at risk of entering foster care
or is in foster care.’ ” (Isaiah W., at p. 11, quoting former § 224.3,
9
In re G.C.
Opinion of the Court by Corrigan, J.
subd. (a), repealed by Stats. 2018, ch. 833, § 6, italics added.) 9
Based on the plain language of the statute we concluded: “In
light of this continuing duty, the . . . order terminating [the
mother’s] parental rights was necessarily premised on a current
finding by the [court terminating parental rights] that it had no
reason to know Isaiah was an Indian child . . . .” (Isaiah W., at
p. 10.) Properly understood, the mother’s appeal challenged the
ICWA inapplicability finding in the termination order, not the
earlier removal order. (Isaiah W., at p. 10)
The court’s continuing duty to inquire whether Isaiah W.
was an Indian child was critical to the outcome there. Section
702, by contrast, contains no such language. Outside the context
of a continuing duty, Isaiah W. affirmed the general rule that a
party “may not challenge [a] dispositional order through an
appeal from [a later] order.” (Isaiah W., supra, 1 Cal.5th at p.
10.) That rule is dispositive here.
G.C. notes that the failure to clearly designate an offense
could impact the maximum term of confinement in a future
section 602 disposition. Under section 726, subdivision (d)(3),
upon proper notice to the minor, the court “may aggregate the
period of physical . . . confinement for multiple felony counts or
petitions, including previously sustained petitions,” to arrive at
the maximum term of confinement. (In re Jovan B., supra, 6
Cal.4th at p. 810; accord, In re Michael B. (1980) 28 Cal.3d 548,
553.) In this circumstance, “each and every criminal violation
may constitute the offense which brings [the minor] under the
jurisdiction of the juvenile court and may serve as a
measurement for . . . physical confinement under the broad
9
The relevant language now appears in section 224.2,
subdivision (a). (Stats. 2018, ch. 833, § 5.)
10
In re G.C.
Opinion of the Court by Corrigan, J.
language of sections 726 and 731 . . . .” (In re Aaron N. (1977)
70 Cal.App.3d 931, 939–940; accord, In re Bryant R. (2003) 112
Cal.App.4th 1230, 1237.)
G.C. has not shown, however, that the Alameda court’s
failure had any effect on the subsequent Santa Clara
disposition. G.C. appeared before the court following a section
777 notice to modify placement based on a probation violation.
The disposition on petitions A and B had concluded. There is no
showing that the status of the offenses as misdemeanors or
felonies affected custodial time or the terms of probation
ultimately imposed in the current proceeding. Nor did the
aggravating provisions of section 726 apply here. “A juvenile
probation violation cannot increase the maximum period of
confinement for the crime previously adjudicated under section
602, as calculated when the ward is ‘removed from the physical
custody of his or her parent or guardian as the result of [a
section 602] order of wardship.’ (§ 726, [former] subd. (c), 1st
par. [now subd. (d)(1)].) . . . [B]ecause section 777[,
subdivision ](a)(2) only governs ‘[probation] violation[s]’ that are
not ‘allege[d]’ as crimes, proceedings under this section do not
lead to a new criminal adjudication that might increase the
maximum period of confinement.” (In re Eddie M. (2003) 31
Cal.4th 480, 506.) Indeed, because the section 777 disposition
did not remove G.C. from her mother’s custody, the Santa Clara
court was not called upon to specify any maximum term of
confinement relating to that proceeding. (See § 726, subd. (d)(1)
[providing that the maximum term of confinement shall be
specified “[i]f 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” (italics added)]; accord,
In re A.C. (2014) 224 Cal.App.4th 590, 591–592; In re P.A. (2012)
11
In re G.C.
Opinion of the Court by Corrigan, J.
211 Cal.App.4th 23, 32; In re Matthew A. (2008) 165 Cal.App.4th
537, 541; In re Ali A. (2006) 139 Cal.App.4th 569, 572–574.)
Accordingly, section 702 did not require the Santa Clara court
to make a misdemeanor or felony declaration. That court was
not imposing a removal order and, under Isaiah W., had no
obligation to revisit a prior disposition that had become final.10
B. Unauthorized Sentence
The Court of Appeal majority also rejected G.C.’s
argument that the failure to comply with the mandatory
provisions of section 702 creates an unauthorized sentence
correctable at any time. The court reasoned: “The
‘unauthorized sentence’ rule generally permits . . . defendant[s]
to ‘challenge an unauthorized sentence on appeal even if they
failed to object below . . . .’ (People v. Hester (2000) 22 Cal.4th
290, 295, italics added; see also People v. Scott (1994) 9 Cal.4th
331, 354 . . . .) That rule is an exception to the waiver doctrine
(Hester, at p. 295), not to the jurisdictional requirement of a
timely notice of appeal.” (In re G.C., supra, 27 Cal.App.5th at p.
116.)
We agree. An unauthorized sentence “ ‘do[es] not become
irremediable when a judgment of conviction becomes final, even
after affirmance on appeal.’ ” (In re Harris (1993) 5 Cal.4th 813,
840, quoting In re Winchester (1960) 53 Cal.2d 528, 531, italics
in Harris.) But to invoke this rule the court must have
jurisdiction over the judgement. Harris, for example, involved
10
Because the Alameda court’s failure to make the required
declaration had no effect on the section 777 disposition, we are
not called upon to decide the scope of a minor’s appellate rights
when the juvenile court’s omission impacts the maximum term
of confinement in a subsequent proceeding.
12
In re G.C.
Opinion of the Court by Corrigan, J.
a writ of habeas corpus challenging the judgment of conviction
giving rise to the petitioner’s custody. (Harris, at p. 823.) Here,
for the reasons we have explained, there was no correlation
between the section 702 error and the current judgment on
appeal. The unauthorized sentence doctrine will not serve to
remedy this defect.
Moreover, the nature of the claim here does not fall within
this “narrow” category of nonforfeitable error. (People v. Scott,
supra, 9 Cal.4th at p. 354.) We have explained that an
unauthorized sentence or one in excess of jurisdiction is a
sentence that “could not lawfully be imposed under any
circumstance in the particular case.” (Ibid.) The appellate court
may intervene in the first instance because these errors
“present[] ‘pure questions of law’ [citation], and [are] ‘ “clear and
correctable” independent of any factual issues presented by the
record at sentencing’ ” and without “remanding for further
findings.” (People v. Smith (2001) 24 Cal.4th 849, 852.) The rule
exists because correction of sentencing error that is evident from
the record and needing no redetermination of facts does not
significantly impact the state’s interest in finality of judgments.
(In re Harris, supra, 5 Cal.4th at p. 841.) “In such
circumstances, an individual’s interest in obtaining judicial
review of an allegedly illegal sentence cannot be ignored.”
(Ibid.)
While the failure to properly designate an offense can
affect the maximum term of confinement, G.C. has not shown
that this omission results in a disposition that “could not
lawfully be imposed under any circumstance in the particular
case.” (People v. Scott, supra, 9 Cal.4th at p. 354.) Rather, the
error here involves “the [juvenile] court’s failure to properly
make or articulate its discretionary sentencing choices.” (Scott,
13
In re G.C.
Opinion of the Court by Corrigan, J.
at p. 353, italics added.) “Included in this category are cases in
which . . . the court purportedly erred because it . . . failed to
state any reasons or give a sufficient number of valid reasons.”
(Ibid.)
People v. Scott, supra, 9 Cal.4th at pages 352–353 cited
with approval People v. Neal (1993) 19 Cal.App.4th 1114, which
held that the trial court’s failure to articulate required reasons
for imposing consecutive sentences does not create an
unauthorized sentence that may be corrected at any time. (Neal,
at pp. 1117, 1124.) As the court there explained: “[T]he
consecutive sentences imposed in the present case were
authorized specifically pursuant to section 1170.1, subdivision
(a) and cannot logically be characterized as being in excess of
jurisdiction. . . . ‘A “defendant must demonstrate more than
mere legal error or irregularities in the trial court’s proceedings;
he [or she] must show that the trial court exceeded its
jurisdiction in some manner. [Citations.]” [Citation.] The
manner in which the trial court here pronounced judgment
constituted the only judicial error [citation]. The sentence itself
was authorized by law. [Citations.] Consequently, the court did
not exceed its jurisdiction in imposing it. [Citation.]’ [Citation.]
This is not a case where ‘. . . the judgment is void on the face of
the record. [Citations.]’ [Citation.] Accordingly, based upon
existing California decisional authority, the failure to state
reasons for consecutive sentencing is not a jurisdictional error.”
(Id. at pp. 1120–1121; accord, People v. Tillman (2000) 22
Cal.4th 300, 303 [failure to give reasons for not imposing a
restitution fine did not amount to an unauthorized sentence]; In
re Travis J. (2013) 222 Cal.App.4th 187, 201 [same regarding
14
In re G.C.
Opinion of the Court by Corrigan, J.
error in calculating maximum term of confinement].) 11 As in
Neal, the Alameda court had discretion to designate the offenses
in petitions A and B as felonies or misdemeanors. Its failure to
make an express declaration to that effect was a forfeitable legal
error.
Moreover, the failure to make the required section 702
declaration is not “ ‘ “clear and correctable” ’ ” in the first
instance on appeal without “remanding for further findings.”
(People v. Smith, supra, 24 Cal.4th at p. 852.) This court cannot
correct the Alameda court’s omission because we are not
permitted to “substitute [our] reasons for those omitted or
misapplied by the [juvenile] court” or to “reweigh valid factors
bearing on the decision below.” (People v. Scott, supra, 9 Cal.4th
at p. 355.) Instead, upon timely appeal the proper course would
have been to remand the case for the Alameda court to exercise
its discretion. (Manzy W., supra, 14 Cal.4th at p. 1211; see Scott,
at p. 355.) To achieve that result, however, the error must be
timely asserted.
The authorities G.C. cites are not to the contrary. In
Manzy W. we described the juvenile court’s duty to make the
express declaration as “mandatory.” (Manzy W., supra, 14
Cal.4th at p. 1204.) We did not discuss how this
characterization affected the question of forfeiture because that
issue was not before us. But we did make clear that the court’s
11
We have declined to require a timely objection to the
court’s failure to exercise its discretion when the law at the time
of the ruling suggested the court lacked such discretion. (People
v. Fuhrman (1997) 16 Cal.4th 930, 945.) Here, however, the
juvenile court’s duty to declare whether the wobbler offenses
were misdemeanors or felonies was established over two
decades ago in Manzy W., supra, 14 Cal.4th at pages 1206–1207.
15
In re G.C.
Opinion of the Court by Corrigan, J.
failure to comply did not automatically invalidate the judgment.
(Id. at p. 1209.) Instead, “when remand would be merely
redundant, failure to comply with the statute would amount to
harmless error.” (Ibid.)
Ricky H., supra, 30 Cal.3d 176, is also distinguishable.
There the minor appealed a dispositional order involving several
offenses, including assault with force likely to produce great
bodily injury. After addressing the minor’s challenge to his
California Youth Authority commitment and calculation of
custody credits, we addressed “several deficiencies in the
superior court’s dispositional order, not raised by either party,
which have become apparent to this court during its review of
this case.” (Id. at pp. 190–191.) One such error was the
imposition of a three-year midterm instead of the four-year
upper term on the assault offense, as required by section 726.
This error resulted in an unauthorized sentence correctable at
any time. However, because the lower court had not declared
whether the assault offense was a misdemeanor or felony, the
appropriate disposition was to “remand with directions to the
superior court, rather than appellate correction.” (Ricky H., at
p. 191.)
Ricky H.’s appeal was timely. The juvenile court’s failure
to comply with section 702 was part of the proceeding under
review. (Ricky H., supra, 30 Cal.3d at p. 182.) Moreover, Ricky
H. did not hold that the section 702 error rendered a sentence
unauthorized. Rather, it was the juvenile court’s imposition of
the midterm that was unauthorized. In order to correct
apparent sentencing error, we remanded the case to allow the
juvenile court to determine the character of the offense under
section 702. Ricky H.’s. holding does not justify a remand in a
subsequent appeal from a later dispositional order.
16
In re G.C.
Opinion of the Court by Corrigan, J.
As G.C. notes, one Court of Appeal did make that
inferential leap on the basis of Ricky H.’s holding. In Ramon M.,
supra, 178 Cal.App.4th 665, the minor appealed from a 2008
dispositional order imposing a year in custody for probation
violations. (Id. at pp. 669–670.) One of his claims was that the
juvenile court had previously failed to declare whether certain
“prior adjudications” were misdemeanors or felonies. (Id. at p.
668.) The dispositional orders for two of the prior adjudications
were entered in October 2005; the third was entered sometime
before the filing of the final petition, which was the subject of
the appeal. (Id. at pp. 668–669.) The People argued that the
claim was time-barred because Ramon failed to file a notice of
appeal within 60 days. (Id. at p. 675.) The Court of Appeal
disagreed, concluding instead that the failure to designate the
offenses as misdemeanors or felonies resulted in an
unauthorized sentence, citing Ricky H., supra, 30 Cal.3d at page
191. (Ramon M., at p. 675.) It also reasoned that potential use
of juvenile adjudications to enhance sentences under the “Three
Strikes” law (see People v. Nguyen (2009) 46 Cal.4th 1007)
justified review of the issue. (Ramon M., at p. 675.)
Ramon M.’s holding is flawed. The court failed to
appreciate the two salient distinctions in Ricky H. noted above,
namely, that Ricky H. concerned a timely filed appeal, and that
the unauthorized sentence in that case arose from the failure to
impose the upper term, not the failure to comply with section
702. Ramon M.’s reliance on People v. Nguyen, was likewise
inapt. Nguyen held that a prior juvenile adjudication for a
serious felony could be used as a strike in a subsequent adult
proceeding despite the fact that there was no right to a jury trial
in the juvenile proceeding. (People v. Nguyen, supra, 46 Cal.4th
at pp. 1014–1015.) It did not raise the question of timely appeal.
17
In re G.C.
Opinion of the Court by Corrigan, J.
Further, Ramon M. failed to consider the limited circumstances
under which a prior conviction may be collaterally challenged
outside of the context of a habeas corpus proceeding. (See Custis
v. United States (1994) 511 U.S. 485, 493–497; People v. Allen
(1999) 21 Cal.4th 424, 440–443.) 12 We disapprove In re Ramon
M., supra, 178 Cal.App.4th 665, to the extent it is inconsistent
with this opinion.
Finally, G.C. argues that barring her challenge to the
juvenile court’s section 702 error would deprive her of a liberty
interest in violation of the due process clause. She cites Hicks
v. Oklahoma (1980) 447 U.S. 343, but her assertion fails.
As we explained in People v. Gonzales (2013) 56 Cal.4th
353: “The governing United States Supreme Court decisions
establish that ‘ “ a ‘mere error of state law’ is not a denial of due
process.” ’ [Citations.] . . . [I]n Hicks v. Oklahoma[, supra,] 447
U.S. 343, the high court held that when state law creates a
liberty interest in having a jury make a particular factual
finding that is necessary for criminal punishment, the denial of
a jury trial with respect to such a finding constitutes a violation
of the federal due process clause. [Citation.] Subsequent high
court cases explain, however, that Hicks is limited to the jury
trial context and holds ‘only that where state law creates for the
defendant a liberty interest in having the jury make particular
findings, the Due Process Clause implies that appellate findings
12
Notably, G.C.’s adjudications for auto theft have no
implications under the Three Strikes law. (See Pen. Code,
§§ 667, subd. (d), 667.5, subd. (c), 1192.7, subd. (c).) Accordingly,
we express no opinion on whether a prior conviction used to
enhance a sentence may be challenged on the ground that the
court failed to make the mandatory declaration of misdemeanor
or felony status.
18
In re G.C.
Opinion of the Court by Corrigan, J.
do not suffice to protect that entitlement.’ [Citation.]” (Id. at p.
385.)
G.C. had no right to a jury trial in the present juvenile
action, so the limited rule from Hicks does not apply. Moreover,
the denial of G.C.’s claim results from the regular application of
the timely filing rules. That application does not arbitrarily
deprive G.C. of any statutory right. There is no due process
violation under the circumstances presented here. 13
13
Although the Attorney General urges that the appeal in
this case is inoperative, he maintains that G.C. may seek
recourse by filing a motion in the juvenile court under the
authority of section 775. That section provides: “Any order
made by the court in the case of any person subject to its
jurisdiction may at any time be changed, modified, or set aside,
as the judge deems meet and proper, subject to such procedural
requirements as are imposed by this article.” (§ 775.)
According to the Attorney General, this statute gives the
court authority to correct its disposition regardless of finality.
However, G.C. did not file such a motion in the trial court and
disclaims any reliance on section 775 in the proceedings before
us. We offer no opinion on whether the statute may be used for
this purpose.
19
In re G.C.
Opinion of the Court by Corrigan, J.
III. DISPOSITION
We affirm the Court of Appeal’s judgment.
CORRIGAN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.
20
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion In re G.C.
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 27 Cal.App.5th 110Rehearing Granted
__________________________________________________________________________________
Opinion No. S252057
Date Filed: February 20, 2020
__________________________________________________________________________________
Court: Superior
County: Santa Clara
Judge: Kenneth L. Shapero
__________________________________________________________________________________
Counsel:
Sidney Sue Hollar, under appointment by the Supreme Court, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M.
Laurence, Assistant Attorney General, Melissa A. Meth, Donna M. Provenzano and Victoria Ratnikova,
Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Sidney S. Hollar
5214F Diamond Heights Boulevard, #127
San Francisco, CA 94131
(415) 826-7527
Melissa A. Meth
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102
(415) 510-3827