People v. M.R. , 220 Cal. App. 4th 49 ( 2013 )

Filed 9/27/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
In re M.R., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
A137586
v.
M.R., (Alameda County
Super. Ct. No. SJ2019358)
Defendant and Appellant.
A minor declared a ward of the juvenile court solely as a result of the minor‟s
habitual truancy may not be placed in secure confinement during nonschool hours except
under limited circumstances. (Welf. & Inst. Code,1 §§ 207, subds. (a), (b), 601, subd.
(b).) Notwithstanding the statutory limitations on the confinement of truants, in In re
Michael G. (1988) 44 Cal. 3d 283, 287 (Michael G.), our Supreme Court held that the
juvenile court retains the authority to order the secure confinement of a habitual truant
who is found to be in contempt of court.
This appeal presents the question of whether the juvenile court must comply with
statutory procedures governing civil contempt proceedings (Code Civ. Proc., §§ 1209-
1222) before ordering the secure confinement of a contemptuous habitual truant pursuant
to Michael G., supra, 44 Cal. 3d 283. We conclude that title 5 of part 3 of the Code of
Civil Procedure, which governs civil contempt proceedings, applies in truancy cases.
1
All further statutory references are to the Welfare and Institutions Code unless
otherwise specified.
1
Because the juvenile court in this case did not comply with those statutory procedures,
we shall annul the order of contempt.
FACTUAL AND PROCEDURAL BACKGROUND
On August 2, 2012, the Alameda County District Attorney filed a juvenile
wardship petition alleging that 15-year-old M.R. was a habitual truant under section 601,
subdivision (b). It was alleged that M.R. had missed 255 school periods during the
previous school year without a valid reason. M.R.‟s alleged truancy was the sole basis
for the juvenile wardship petition.
M.R. admitted the allegations of the petition at a hearing conducted on October 19,
2012. The court declared him a ward and ordered that his care, custody, and conduct
were to be supervised by his probation officer. He was directed to reside in the home of
his parents. The court imposed a number of probation conditions, including that M.R.
attend school daily, comply with a 6:00 p.m. curfew, and not stay away from home
overnight without the prior permission of his probation officer.
The court conducted a progress report hearing on November 30, 2012. In the
report prepared for that hearing, the probation officer stated that M.R. had failed to attend
school daily and had failed to abide by his 6:00 p.m. curfew. According to the report,
M.R. had attended only two of the 15 school days since the last court hearing and arrived
home at around 11:00 p.m. almost every night. At the progress report hearing, the court
imposed an additional condition requiring M.R. to attend Weekend Training Academy
(WETA) three times. WETA, a weekend program that is an alternative to detention,
provides wards with community service opportunities as well as social values training.
The court also imposed but suspended 26 additional “WETAs.” At the conclusion of the
hearing, the court put the matter over for 30 days and told M.R. it could “have you
remanded today” as a result of his violation of the court‟s orders. The court warned M.R.
that “I‟m going to have you do the WETAs and give you fair warning that if I get another
report like this in 30 days that you can expect to spend the weekend here with us, all
right?”
2
The court conducted the next progress report hearing on January 4, 2013. In the
report prepared for that hearing, the probation officer stated that M.R. had gone to only
one out of the three WETA‟s he was ordered to attend. M.R. called his probation officer
and told him he was unable to attend any further WETA‟s due to illness. However,
M.R.‟s mother reported that he was not ill when he claimed to be. The probation officer
directed M.R. to attend a special weekend of WETA for violating the court‟s order. The
probation officer also reported that M.R. continued to violate his 6:00 p.m. curfew, had
gone to Reno without his permission, and continued to be absent from school. For the
one-month period ending December 13, 2012, M.R. had missed six full days of school in
addition to 19 period absences. M.R. had received all F‟s in the previous quarter and was
described as “immature and not taking responsibility for his actions.” The probation
officer recommended continuing the matter for 30 days. The probation officer‟s report
made no mention of remanding M.R. to juvenile hall or holding him in contempt of court
for violating the court‟s orders.
At the progress report hearing on January 4, 2013, it became clear that the juvenile
court intended to incarcerate M.R. in juvenile hall for a weekend, stating: “He[] doesn‟t
want to go into custody. That‟s what he‟s looking at at this point.” M.R.‟s counsel
argued that the court lacked authority to incarcerate M.R. except under its contempt
power, which is governed by the civil contempt provisions in the Code of Civil
Procedure. Counsel also argued that a commitment order would violate Michael G.,
supra, 44 Cal. 3d 283, because the court had not tried GPS monitoring as a less restrictive
alternative to secure confinement. The court denied counsel‟s request to file points and
authorities with the court, stating that it had been addressing the issue of its authority to
have minors remanded “for probably at least the last couple of months.”
The court remanded M.R. to serve the weekend in juvenile hall. As support for its
decision, the court stated that it sought a less restrictive alternative to secure confinement
by ordering M.R. to complete three WETA‟s, which he failed to do. The court also cited
M.R.‟s continuing violation of his curfew and his trip to Reno in violation of the
condition that he seek his probation officer‟s permission before staying away from home
3
overnight. The court clarified that M.R. was not to be placed with any of the “602‟s”—
i.e., juveniles who had been made wards of the court under section 602 as a result of
committing acts that would be considered crimes if committed by adults. Although the
court remanded M.R. to serve the weekend in juvenile hall and referred repeatedly to its
power to “remand” M.R., the court did not actually state that it found M.R. in contempt
of court. M.R. filed a timely appeal from the court‟s order.
DISCUSSION
1. Mootness
M.R.‟s period of confinement ended in early January 2013. Consequently, the
Attorney General argues the appeal should be dismissed as moot because it is impossible
for this court to afford M.R. any effective relief. (See In re Sodersten (2007) 146
Cal. App. 4th 1163, 1217.) M.R. agrees the appeal is technically moot.
“[T]here are three discretionary exceptions to the rules regarding mootness: (1)
when the case presents an issue of broad public interest that is likely to recur [citation];
(2) when there may be a recurrence of the controversy between the parties [citation]; and
(3) when a material question remains for the court‟s determination [citation].”
(Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000)
82 Cal. App. 4th 473, 479-480.)
Although the appeal is technically moot, we shall exercise our inherent discretion
to resolve an issue of broad public interest that is likely to recur while evading appellate
review. (Conservatorship of Wendland (2001) 26 Cal. 4th 519, 524, fn. 1.) The issue of
broad public interest is whether the provisions of the Code of Civil Procedure govern a
contempt proceeding against a habitual truant in the juvenile court. As M.R. points out,
there are currently at least four other pending appeals in the First Appellate District that
raise this same issue.2 Thus, the issue is not only a matter that has generated public
2
At M.R.‟s request, we take judicial notice of the following appeals pending in the First
District Court of Appeal that challenge orders requiring truancy wards to be incarcerated
for contempt of court: In re G.C., A137752; In re L.S., A137585; In re G.M., A137869;
and In re F.A., A137865. (Evid. Code, §§ 452, subd. (d), 459.)
4
interest but has, in fact, been raised on repeated occasions. Further, it is an issue that
would likely evade review if appeals raising the issue were dismissed on mootness
grounds, because it will almost invariably be the case that a contemptuous truant will
have served his or her period of secure confinement before an appeal can be decided.
2. Governing legal principles
a. The contempt power
“It is well settled that the court has inherent power to enforce compliance with its
lawful orders through contempt.” (In re Nolan W. (2009) 45 Cal. 4th 1217, 1230.) The
Legislature recognized the inherent contempt power of the juvenile court in section 213,
which provides: “Any willful disobedience or interference with any lawful order of the
juvenile court or of a judge or referee thereof constitutes a contempt of court.” Section
213—and, for that matter, the Welfare and Institutions Code as a whole—does not
specify the punishment for contempt or the procedures that must be followed by the
juvenile court before it may issue an order of contempt.
Although the court has inherent power to punish contempts of court, the
Legislature may place reasonable limitations on this power. (Superior Court v. County of
Mendocino (1996) 13 Cal. 4th 45, 57; In re McKinney (1968) 70 Cal. 2d 8, 10-11.) The
Legislature has enacted such limitations on the court‟s inherent power in Code of Civil
Procedure sections 1209 through 1222. Contempt proceedings under these statutes may
arise out of either civil or criminal litigation. (Koehler v. Superior Court (2010) 181
Cal. App. 4th 1153, 1158.) “Because of the potential punishment, [a contempt proceeding]
is considered quasi-criminal, and the defendant possesses some of the rights of a criminal
defendant.” (People v. Gonzalez (1996) 12 Cal. 4th 804, 816.) Among other things, a
contemnor‟s guilt must be proved beyond a reasonable doubt when punitive sanctions are
imposed (Mitchell v. Superior Court (1989) 49 Cal. 3d 1230, 1256), and the accused is
entitled to a hearing at which the accused may call and cross-examine witnesses. (Code
Civ. Proc., § 1217; Farace v. Superior Court (1983) 148 Cal. App. 3d 915, 917.)
A contemptuous act committed in the court‟s presence is referred to as a direct
contempt and may be addressed summarily. (Code Civ. Proc., § 1211, subd. (a); Wanke,
5
Industrial, Commercial, Residential, Inc. v. Keck (2012) 209 Cal. App. 4th 1151, 1164.)
An alleged act of contempt not committed in the immediate view and presence of the
court is referred to as an indirect contempt. (Koehler v. Superior Court, supra, 181
Cal.App.4th at p. 1159.) “ „The facts supporting indirect contempt arise outside the
judge‟s presence, requiring a more elaborate procedure to notify the person charged and
to afford an opportunity to be heard. [Citations.] A common example is a party‟s
disobedience of a judge‟s order.‟ ” (Ibid.)
In order to institute a proceeding for indirect contempt under the Code of Civil
Procedure, an affidavit must be presented to the court setting forth the facts constituting
the contempt. (Code Civ. Proc., § 1211, subd. (a).) “It has long been the rule that the
filing of a sufficient affidavit is a jurisdictional prerequisite to a contempt proceeding.”
(Koehler v. Superior Court, supra, 181 Cal.App.4th at p. 1169.) Without an initiating
affidavit, a contempt order is void. (Ibid.; see also In re Cowan (1991) 230 Cal. App. 3d
1281, 1286-1288.) “After notice to the opposing party‟s lawyer, the court (if satisfied
with the sufficiency of the affidavit) must sign an order to show cause re contempt in
which the date and time for a hearing are set forth.” (Cedars-Sinai Imaging Medical
Group v. Superior Court (2000) 83 Cal. App. 4th 1281, 1286 (Cedars-Sinai); Code Civ.
Proc., § 1212.) The issuance of the order to show cause commences a “separate action”
on the contempt charges. (People v. Gonzalez, supra, 12 Cal.4th at p. 816.) The accused
is entitled to a full and fair hearing that satisfies due process. (Farace v. Superior Court,
supra, 148 Cal.App.3d at pp. 917-918; Code Civ. Proc., § 1217.)
A contempt judgment is reviewed under the substantial evidence standard.
(Mitchell v. Superior Court, supra, 49 Cal.3d at p. 1256.) “In the review of a contempt
proceeding „the evidence, the findings, and the judgment are all to be strictly construed in
favor of the accused [citation], and no intendments or presumptions can be indulged in
aid of their sufficiency. [Citation.] If the record of the proceedings, reviewed in the light
of the foregoing rules, fails to show affirmatively upon its face the existence of all the
necessary facts upon which jurisdiction depended, the order must be annulled.‟ ” (Ibid.)
6
b. Limitations on secure confinement of truancy wards
A minor who is a habitual truant may be declared a ward of the juvenile court
under section 601, subdivision (b). Truancy wards, as well as other minors who are
declared wards of the court under section 601, are brought within the jurisdiction of the
juvenile court as a result of acts that would not be considered criminal if committed by an
adult. (Michael G., supra, 44 Cal.3d at p. 287, fn. 2; see § 601, subd. (a) [minor may be
declared a ward for persistently refusing to obey reasonable directions of parents or for
violating municipal curfew].) Their behavior “ „is considered unacceptable solely
because of their age.‟ ” (Michael G., supra, at p. 287, fn. 2.) Such minors are sometimes
referred to as status offenders or section 601 wards. (Ibid.) A minor who is declared a
ward of the court under section 602 must have committed a criminal act. (§ 602, subd.
(a); In re Ramon M. (1978) 22 Cal. 3d 419, 422, fn. 2.) These minors are typically
referred to as juvenile delinquents or section 602 wards. (See Michael G., supra, at p.
1157.)
The Legislature has expressly limited the power of the juvenile court to order the
secure confinement of section 601 wards. As relevant to truancy wards, section 601,
subdivision (b) provides that “it is the intent of the Legislature that no minor who is
adjudged a ward of the court pursuant solely to this subdivision shall be removed from
the custody of the parent or guardian except during school hours.” Section 207,
subdivision (a) applies more generally to all section 601 wards and provides in relevant
part that “[n]o minor shall be detained in any jail, lockup, juvenile hall, or other secure
facility who is taken into custody solely upon the ground that he or she is a person
described by Section 601 or adjudged to be such or made a ward of the juvenile court
solely upon that ground . . . .” Section 207, subdivision (b) provides time-limited
exceptions to the prohibition against secure confinement of section 601 wards in order to
determine if there are any outstanding warrants or holds against the minor or to locate the
minor‟s parents. (§ 207, subd. (b).)
In Michael G., supra, 44 Cal.3d at p. 287, our Supreme Court considered whether
a contemptuous section 601 ward may be confined in a secure facility during nonschool
7
hours despite the express limitations on secure confinement of status offenders in sections
207 and 601. The court held that “a juvenile court retains the authority, pursuant to its
contempt power, to order the secure, nonschool-hours confinement of a contemptuous
section 601 ward.” (Michael G., supra, at p. 287.) Although the court concluded that the
statutory limitations in sections 207 and 601 did not deprive the court of its inherent
power to punish a contemptuous section 601 ward with secure confinement during
nonschool hours, it recognized that “respect for the intent of our coequal branch of
government demands that courts exercise caution when imposing such sanctions against
contemptuous status offenders.” (Michael G., supra, at p. 296.)
In furtherance of the goal of exercising caution in contempt proceedings against
status offenders, the Michael G. court adopted additional requirements that must be
satisfied before a juvenile court may find a section 601 ward in contempt. (Michael G.,
supra, 44 Cal.3d at pp. 297-300.) First, a juvenile court must ensure that the ward “is
given sufficient notice to comply with the order and understands its provisions.” (Id. at p.
297.) Second, the violation must be egregious. (Ibid.) “The requirement of an egregious
violation ensures that secure incarceration will not become a commonplace sanction in
contravention of the Legislature‟s intent to comply with the federal mandate to
deinstitutionalize status offenders.” (Id. at p. 298.) Third, the juvenile court must have
considered less restrictive alternatives and found them to be ineffective. (Id. at p. 297.)
Fourth, the confinement conditions ordered by the court must ensure that the
contemptuous section 601 ward is not allowed to intermingle with section 602 wards.
(Id. at pp. 297, 300.)
The Michael G. court also required the juvenile court to memorialize its findings
on the record. (Id. at p. 298.) By requiring express findings, the Michael G. court
ensured “the court is aware that, by ordering the secure confinement of a juvenile who
has not committed a criminal offense, it is taking the extraordinary step of acting contrary
to the wishes of the Legislature but is justified in doing so because it is convinced there is
no other alternative which will adequately serve the purpose of the contempt citation.”
8
3. Applicability of Code of Civil Procedure to juvenile contempt proceedings
In this case, the juvenile court purported to apply Michael G. in ordering M.R. to
serve a weekend in juvenile hall. The court made findings concerning the egregious
nature of the violation of court orders, stated that less restrictive alternatives had been
attempted, and ordered M.R. to serve his time in juvenile hall separated from section 602
wards. In effect, M.R. was found guilty of indirect contempt because the contemptuous
acts—i.e., the violations of probationary orders—occurred outside the court‟s presence.
Yet the court did not follow the “elaborate procedure” set forth in the Code of Civil
Procedure governing proceedings for indirect contempt. (Koehler v. Superior Court,
supra, 181 Cal.App.4th at p. 1159.) The proceeding was not initiated with an affidavit
setting forth the grounds for holding M.R. in contempt, and the court did not issue an
order to show cause. (See Code Civ. Proc., §§ 1211, subd. (a), 1212.) Rather, M.R.
learned for the first time at the progress report hearing that the juvenile court intended to
hold him in contempt and incarcerate him for violations of the court‟s orders that
occurred in the review period preceding the hearing. M.R. contends the court was
required to comply with Code of Civil Procedure section 1209 et seq., and that the court‟s
failure to do so renders the order of contempt void. For the reasons that follow, we agree
with M.R.
As discussed above, the court‟s inherent power to punish contempt is tempered by
reasonable procedural safeguards enacted by the Legislature in Code of Civil Procedure
section 1209 et seq. (Superior Court v. County of Mendocino, supra, 13 Cal.4th at p. 57;
In re McKinney, supra, 70 Cal.2d at pp. 10-11.) These procedural safeguards apply not
only to contempt proceedings in civil and criminal litigation (Koehler v. Superior Court,
supra, 181 Cal.App.4th at p. 1158) but also to contempt proceedings before quasi-judicial
panels such as the Workers‟ Compensation Appeals Board. (See Crawford v. Workers’
Comp. Appeals Bd. (1989) 213 Cal. App. 3d 156, 164 [because board may conduct
contempt proceedings “to the same extent as courts of record,” it “must follow the
applicable provisions of the Code of Civil Procedure pertaining to contempts”].)
9
Without much discussion, the court in Michael G. assumed that at least one of the
statutory contempt provisions contained in the Code of Civil Procedure applies to
contempt proceedings in the juvenile court under section 213, stating: “While no case
has yet construed the scope of [section 213], the penalties for violation of section 213 are
apparently those set forth in Code of Civil Procedure section 1218 for contempts
generally: a fine of up to $1,000, imprisonment of up to five days, or both.” (Michael G.,
supra, 44 Cal.3d at. p. 289, fn. 3.) Further, the Michael G. court referred to section
1219.5 of the Code of Civil Procedure for guidance concerning whether the court‟s
treatment of contemptuous juveniles is consistent with the Legislature‟s intent. (Michael
G., supra, at pp. 298-299.) Although the court did not directly address whether the
contempt provisions of the Code of Civil Procedure apply in juvenile contempt
proceedings under section 213, the court‟s references to the Code of Civil Procedure
strongly suggest that the statutory procedural safeguards apply to juvenile court contempt
proceedings.
In Michael G., the court went to great lengths to caution against making the secure
confinement of section 601 wards a commonplace occurrence, going so far as to impose
additional requirements upon a juvenile court that may be considering holding a status
offender in contempt of court. (Michael G., supra, 44 Cal.3d at pp. 297-298.) The court
did not suggest these requirements were imposed in lieu of the contempt provisions of the
Code of Civil Procedure. Indeed, given the court‟s cautious approach and reference to
the “extraordinary step of acting contrary to the wishes of the Legislature” concerning the
incarceration of status offenders, it is difficult to conceive that the Michael G. court
envisioned stripping section 601 wards of the procedural safeguards contained in the
Code of Civil Procedure. A fair reading of Michael G. suggests that a juvenile court must
comply with the contempt provisions of the Code of Civil Procedure as well as the
additional requirements specified by the Michael G. court.
The Attorney General contends the Supreme Court in Michael G. permitted the
confinement of a contemptuous section 601 ward without requiring compliance with the
Code of Civil Procedure. We disagree with the Attorney General‟s characterization of
10
the case. As we have discussed, while it is true the court did not specifically address
whether the juvenile court had to comply with the Code of Civil Procedure, the court
assumed the contempt provisions of the Code of Civil Procedure apply to contempt
proceedings under section 213. (Michael G., supra, 44 Cal.3d at pp. 289, fn. 3, 298-299.)
Further, the recitation of facts in Michael G. indicates the juvenile court complied with
the procedural requirements of the Code of Civil Procedure for indirect contempt. The
juvenile court issued an order to show cause why the truant should not be held in
contempt of court for numerous unexcused absences in violation of the court‟s order.
The truancy ward filed a demurrer and alternative motion to dismiss the order to show
cause. Following hearings on the order to show cause, the juvenile court found the ward
in contempt of court after rejecting the ward‟s demurrer and alternative motion to
dismiss. (Id. at p. 288.) Thus, the procedure followed by the juvenile court in Michael
G. appears to comply with the Code of Civil Procedure.
The Attorney General also argues that M.R. cites no authority holding that a
juvenile contempt proceeding pursuant to section 213 is governed by the contempt
provisions of the Code of Civil Procedure. While there appears to be no case directly
addressing the issue, in In re Vanessa M. (2006) 138 Cal. App. 4th 1121, 1131, the Court
of Appeal assumed that a juvenile court attempting to exercise its contempt powers
authorized by section 213 may not impose a contempt sanction without strictly
complying with the statutory procedure set forth in the Code of Civil Procedure. The
Vanessa M. court is not alone in assuming that the contempt provisions of the Code of
Civil Procedure apply to a section 213 contempt proceeding in juvenile court. An oft-
cited juvenile court treatise states that, “[a]s in other courts, contempt in the juvenile
court is done under Code of Civil Proc. § 1218 . . . .” (Seiser & Kumli, Cal. Juvenile
Courts and Procedure (2013) § 1.14[1], p. 1-24, italics added.)
Given that the contempt provisions of the Code of Civil Procedure have broad
application to civil and criminal proceedings as well as to quasi-judicial proceedings such
as those before the Workers‟ Compensation Appeals Board, the critical inquiry is why
11
the juvenile court should be excused from complying with the statutory scheme laid out
in Code of Civil Procedure section 1209 et seq. The Attorney General has failed to
explain why contempt in truancy matters should be the lone exception to the general rule
that contempt proceedings are governed by the Code of Civil Procedure. The Legislature
could have provided a special procedure for contempt in truancy cases but did not do so,
strongly suggesting it intended juvenile courts to follow the contempt provisions
contained in the Code of Civil Procedure.
The Attorney General further contends the reference to one type of juvenile
contemner in Code of Civil Procedure section 1219.5 “suggests that other contempts by
minors within the jurisdiction of the juvenile court were intended to be excluded from the
reach of the Code of Civil Procedure.” We disagree. Section 1219.5 of the Code of Civil
Procedure applies to minors under the age of 16 who refuse to take an oath or testify in
court. The statute is not limited in its application to wards of the juvenile court but
instead refers more generally to any minor who refuses to testify in a court proceeding.
(Code Civ. Proc., § 1219.5, subd. (a).) The statute requires a court to refer a minor found
in contempt for failing to testify to the juvenile court probation officer for a
recommendation as to the appropriate sanction. (Ibid.) A minor who refuses to testify
may not be placed in a secure facility except under limited circumstances. (Code Civ.
Proc., § 1219.5, subd. (c).) The plain import of the statute is to afford more protection to
a minor than to an adult who refuses to testify. The statute has no bearing upon the
procedure applied in a contempt proceeding under section 213. If anything, the statute
tends to confirm that the Legislature intended to provide minors with greater procedural
safeguards in contempt proceedings, suggesting that the contempt provisions of the Code
of Civil Procedure apply in a juvenile court proceeding.
We conclude that the juvenile court must comply with the contempt provisions of
the Code of Civil Procedure before ordering the secure confinement of a contemptuous
habitual truant pursuant to Michael G. We are mindful that requiring compliance with
the Code of Civil Procedure makes the contempt process more cumbersome than it would
otherwise be. However, given the caution expressed by the court in Michael G., it is not
12
overly burdensome to require the juvenile court to issue an order to show cause before
conducting a contempt hearing in a section 601 proceeding. Further, the affidavit
requirement, which is liberally construed under section 1211.5 of the Code of Civil
Procedure, can be easily satisfied with a declaration under penalty of perjury by the
probation officer or the district attorney. (See In re Morelli (1970) 11 Cal. App. 3d 819,
830 [declaration is satisfactory substitute for affidavit].)
While we agree with M.R. that a juvenile court must comply with sections 1209 to
1222 of the Code of Civil Procedure before holding a habitual truant in contempt of
court, we do not agree with M.R.‟s contention that a juvenile court lacks jurisdiction to
proceed with a contempt hearing against a section 601 ward unless the affidavit and order
to show cause are personally served on the minor. In Cedars-Sinai, supra, 83
Cal.App.4th at p. 1286, the appellate court held that a court lacks jurisdiction to proceed
with a contempt hearing unless an affidavit and order to show cause are personally served
on an accused contemnor. The purpose of personal service is to give the court a basis for
asserting personal jurisdiction over the accused contemnor.3 (Id. at p. 1287, fn. 6;
Kroneberger v. Superior Court (1961) 196 Cal. App. 2d 206, 210.) In the juvenile
wardship context, after the court declares the minor a ward “the court assumes
jurisdiction over the minor and has the power to issue orders controlling the minor‟s
conduct.” (In re Nolan W., supra, 45 Cal.4th at p. 1231.) Thus, at least in the unique
context of a juvenile who has been declared a ward of the court, it is unnecessary to serve
the order to show cause personally on the ward because the court has already assumed
jurisdiction over the ward. (See In re Morelli, supra, 11 Cal.App.3d at p. 838 [once
personal jurisdiction has been obtained, the role of the order to show cause is to serve as
notice and not to establish jurisdiction].) It is sufficient if the order to show cause is
3
The statutory basis for the personal service requirement is found in sections 1015 and
1016 of the Code of Civil Procedure. (See Cedars-Sinai, supra, 83 Cal.App.4th at p.
1287.) Section 1015 of the Code of Civil Procedure provides generally that papers must
be served on an attorney for a party that is represented by counsel but excludes “papers to
bring the party into contempt” from the general rule requiring service on a party‟s
attorney.
13
served in compliance with section 248.5, which governs service of orders in juvenile
court proceedings. (See § 248.5 [juvenile court orders must be served personally or by
first-class mail within three court days of issuance].)
Here, the summary procedure followed by the juvenile court did not comply with
the contempt provisions of the Code of Civil Procedure. M.R. had no notice that the
juvenile court would seek to hold him in contempt at the hearing conducted on January 4,
2013, until that hearing was well underway. We observe that the juvenile court largely
avoided mentioning the word “contempt” at the hearing, and on appeal the Attorney
General adds to the confusion by stating that “the court did not hold [M.R.] in contempt.”
However, under the circumstances presented here, the court had no power to order M.R.
to serve a weekend in juvenile hall unless its order was based on a finding of contempt.
Consequently, the court‟s order is most appropriately characterized as one for contempt.
Because the contempt proceeding was not instituted by an affidavit and there was no
issuance or service of an order to show cause, the court‟s order is void and must be
annulled.4 (Koehler v. Superior Court, supra, 181 Cal.App.4th at p. 1169; In re Cowan,
supra, 230 Cal.App.3d at pp. 1286-1288.)
4. Appealability of juvenile contempt order
As a final matter, we consider on our motion whether the court‟s order is
appealable. M.R. asserts the court‟s order is appealable under section 800,
subdivision (a). Ordinarily, we would consider this issue at the outset because we lack
jurisdiction to consider an appeal unless it is taken from an appealable judgment. (See
Koshak v. Malek (2011) 200 Cal. App. 4th 1540, 1544.) We have reserved the issue until
now because its resolution turns in part on whether contempt provisions of the Code of
Civil Procedure apply to a contempt proceeding in the juvenile court.
4
M.R. also alleges the juvenile court failed to comply with the additional requirements
imposed by the Supreme Court in Michael G. Because we conclude the contempt order
is void as a result of the court‟s failure to comply with the contempt provisions of the
Code of Civil Procedure, it is unnecessary to address this contention.
14
A judgment of contempt is not appealable. (See Code Civ. Proc., § 904.1, subd.
(a) [appeal may not be taken from a “judgment of contempt that is made final and
conclusive by Section 1222”]; People v. Gonzalez, supra, 12 Cal.4th at p. 816.) The
proper method to challenge a contempt order is to seek extraordinary writ relief, either
through a petition for a writ of habeas corpus, certiorari, or prohibition. (See People v.
Gonzalez, supra, at p. 816 [contempt judgment reviewable by writ]; Koehler v. Superior
Court, supra, 181 Cal.App.4th at p. 1165 [prohibition lies to challenge contempt order
except when petitioner is in custody, in which case habeas corpus is appropriate remedy];
Imuta v. Nakano (1991) 233 Cal. App. 3d 1570, 1584, fn. 18 [writ of certiorari is remedy
for invalid contempt judgment]. )
Section 800, subdivision (a) provides that a minor in a proceeding under section
601 may appeal from “any subsequent order” following a judgment as “an order after
judgment.” Although the court‟s order here might be characterized as a “subsequent
order” that is appealable under section 800, subdivision (a), we conclude the order is
more appropriately described as a judgment of contempt that is made final under Code of
Civil Procedure section 1222. This conclusion follows from our holding that a contempt
proceeding in a truancy matter is governed by the contempt provisions of the Code of
Civil Procedure. We are not aware of any reason to treat a contempt order of the juvenile
court any differently from a contempt order of a civil or criminal court for purposes of
determining whether the order is appealable.5
A challenge to a judgment of contempt requires writ review because it is vital that
an order of incarceration be reviewed promptly. The writ process ensures timely
resolution of the issue. Allowing review of a contempt judgment in a juvenile case to go
5
Just as the Welfare and Institutions Code makes an order after judgment appealable in
section 800, subdivision (a), the Code of Civil Procedure likewise provides that an “order
made after a judgment” is appealable. (Code Civ. Proc., § 904.1, subd. (a)(2).)
Nevertheless, a contempt judgment is not transformed into an appealable order simply
because it is issued as an order after judgment. (See Code Civ. Proc., § 904.1, subd.
(a)(1)(B).)
15
by way of appeal would virtually guarantee the matter would not be reviewed until after
the period of confinement had ended.
Accordingly, we hold that a judgment of contempt against a truancy ward in a
section 601 juvenile proceeding is not an appealable order. (Cf. In re Nolan W., supra,
45 Cal.4th at p. 1226 [reciting Court of Appeal‟s holding that exclusive method to
challenge juvenile court contempt order is by writ petition].) As with other civil
contempt judgments, the exclusive remedy is a petition for extraordinary writ relief.
Although we have the power to dismiss M.R.‟s appeal on the ground the challenged order
is nonappealable, we have chosen instead to address the appeal on its merits by
exercising our inherent discretion to treat the appeal as petition for extraordinary writ
relief. (H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal. App. 4th 1357, 1366-
1367.)
DISPOSITION
The order of contempt is annulled.
_________________________
McGuiness, P. J.
We concur:
_________________________
Pollak, J.
_________________________
Jenkins, J.
16
Trial Court: Alameda County Superior Court
Trial Judge: Hon. Rhonda Burgess
Counsel for Defendant and Appellant: L. Richard Braucher
Staff Attorney
First District Appellate Project, under
Appointment by the Court of Appeal
Jonathan Soglin
Executive Director
First District Appellate Project
Counsel for Plaintiff and Respondent: Ronald E. Niver
Deputy Attorney General
Kamala D. Harris
Attorney General of California
Dane R. Gillette
Chief Assistant Attorney General
Gerald A. Engler
Senior Assistant Attorney General
Eric D. Share
Supervising Deputy Attorney General
17