In re T.H. CA3 ( 2020 )

Filed 12/24/20 In re T.H. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
In re T.H., a Person Coming Under the Juvenile Court C091584
Law.
THE PEOPLE, (Super. Ct. No. JV135751)
Plaintiff and Respondent,
v.
T.H.,
Defendant and Appellant.
Appointed counsel for minor Timothy H. has asked this court to review the record
to determine whether there exist any arguable issues on appeal. (People v. Wende (1979)
25 Cal.3d 436 (Wende); In re Kevin S. (2003) 113 Cal.App.4th 97, 119 [Wende procedure
applies to appeals in juvenile delinquency cases].) As we explain, we will dismiss the
appeal, which is taken from the denial of a petition to seal.
1
BACKGROUND
In December 2013 the minor and others took property from Q.C. About a month
later, the minor and others took Jennifer B.’s keys and her phone by force or fear, and ran
across a parking lot and stole her vehicle. One of the other participants in the robbery
(not the minor) possessed a firearm.
The minor admitted an allegation in a delinquency petition (Welf. & Inst. Code,
§ 602)1 that he committed a robbery (Pen. Code, § 211) while armed with a firearm (id.,
§ 12022, subd. (a)), and grand theft from a person (id., § 487, subd. (c).) The trial court
declared the minor a ward of the court, committed him to the Division of Juvenile Justice
(DJJ), and ordered him to pay various fines, fees, and restitution.
The minor was granted parole and discharged from DJJ in early 2016. In April
2016 the court terminated DJJ jurisdiction and placed him on formal probation. In July
2019 probation recommended the court terminate the minor’s probation. The trial court
found the minor had substantially completed the terms of probation, and terminated
probation. The trial court granted a section 782 motion and dismissed the wardship
petition. The minor filed a motion to seal his juvenile record under section 786.
Following a contested hearing, the trial court denied the motion to seal. The minor
appeals the denial of the motion to seal.
DISCUSSION
Review pursuant to Wende or its federal constitutional counterpart Anders v.
California (1967) 386 U.S. 738 is required only in the first appeal of right from a
criminal conviction. (Pennsylvania v. Finley (1987) 481 U.S. 551, 555; Conservatorship
of Ben C. (2007) 40 Cal.4th 529, 536-537; People v. Serrano (2012) 211 Cal.App.4th
496, 499-501 (Serrano).)
1 Undesignated statutory references are to the Welfare and Institutions Code.
2
The right to Anders/Wende review applies only at appellate proceedings where
defendant has previously established a constitutional right to counsel. (Serrano, supra,
211 Cal.App.4th at p. 500; Conservatorship of Ben C., supra, 40 Cal.4th at pp. 536-537.)
The constitutional right to counsel extends to the first appeal of right, and no further.
(Serrano, at pp. 500-501.) The right to Wende review has also been extended to a
minor’s first appeal in a delinquency case. (In re Kevin S., supra, 113 Cal.App.4th at
p. 118.)
The “judgment” in a delinquency proceeding is the dispositional order made after
the trial court has found facts establishing juvenile court jurisdiction. (In re Mario C.
(2004) 124 Cal.App.4th 1303, 1307-1308; §§ 725, 706.) The appeal before us, although
originating in a juvenile delinquency context, is not a first appeal of right from a juvenile
proceeding because it is not an appeal from the disposition. (See Serrano, supra,
211 Cal.App.4th at p. 501.) While a minor has a right to appointed counsel in an appeal
from an order after judgment affecting his substantial rights (§ 800), that right is
statutory, not constitutional. Thus, defendant is not entitled to Wende review in such an
appeal. (See Serrano, at pp. 499, 501 [no Wende review for denial of postconviction
motion to vacate guilty plea pursuant to Pen. Code, § 1016.5].)
Applying Serrano here, defendant has no right to Wende review of the denial of
his motion to seal. Because neither the minor nor his counsel has raised any claim of
error in the trial court’s denial of the motion, we must dismiss the minor’s appeal as
abandoned.
3
DISPOSITION
The appeal is dismissed.
/s/
Duarte, Acting P. J.
We concur:
/s/
Hoch, J.
/s/
Krause, J.
4