In re J.F. CA3

Filed 12/23/14 In re J.F. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
COPY
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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In re J.F., a Person Coming Under the Juvenile Court C075394
Law.
THE PEOPLE, (Super. Ct. No. JV134451)
Plaintiff and Respondent,
v.
J.F.,
Defendant and Appellant.
At a May 2013 jurisdictional/dispositional hearing on the original Welfare and
Institutions Code section 602 petition, the juvenile court sustained the allegation that the
minor J.F. had committed felony burglary of “an inhabited dwelling” and granted
supervised felony probation subject to numerous conditions including DNA testing. In
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November 2013, the minor admitted violating probation (he was suspended from school)
and the juvenile court revoked and reinstated probation.
The minor appeals. In his notice of appeal, the minor states that he is appealing
from the November 2013 order but raises issues which should have been raised in an
appeal from the May 2013 order. The minor contends the juvenile court failed to
designate the degree of the burglary (which would have occurred at the May 2013
jurisdictional/dispositional hearing), requiring that the offense be designated second
degree and remand for the court to correct the maximum confinement time and to
consider whether the second degree burglary should be a felony or a misdemeanor.
Assuming the burglary is deemed a misdemeanor, the minor contends the condition
requiring he provide a DNA sample should be stricken.
The minor also contended that he was entitled to additional predisposition custody
credits but the juvenile court amended the credits subsequent to the minor’s filing of his
opening brief pursuant to the minor’s request. No further action is required as to that
contention.
We requested supplemental briefing, asking the parties to discuss “whether the
minor’s current appeal from a November 2013 order should be dismissed because it
raises issues (designation of the degree of offense, probation condition requiring a DNA
sample) that should have been raised in an appeal from the May 22, 2013
jurisdictional/dispositional order, revoking deferred entry of judgment, vacating previous
dispositional orders, adjudicating the minor as a ward, and granting supervised probation
subject to certain terms and conditions.”
Having considered the supplemental briefing received from the parties, we
conclude we do not have jurisdiction to resolve the minor’s contention with respect to the
degree of his offense which should have been decided at the jurisdictional/dispositional
hearing in May 2013 or his contention with respect to the order he submit to DNA testing
which was imposed as a condition of probation in May 2013. Because the minor raises
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issues that should have been raised in an appeal from the May 2013 order, the minor’s
current appeal is untimely and must be dismissed. Further, the minor’s notice of appeal
did not specify that he was appealing from the May 2013 order.
FACTS AND PROCEEDINGS
On August 30, 2012, the minor and another juvenile entered the attached garage of
the home belonging to an off-duty prison guard and stole a 12-pack of soda. The victim
caught the pair and detained them until officers arrived. When interviewed, the other
juvenile admitted that he and the minor had stolen the soda from the victim’s home “on a
dare.”
A petition filed October 25, 2012, alleged the minor came within the provisions of
Welfare and Institutions Code section 602 in that he committed burglary of “an inhabited
dwelling house,” a felony (Pen. Code, § 459; count one) and that the offense was a
serious felony within the meaning of Penal Code section 1192.7, subdivision (c). The
minor was eligible for deferred entry of judgment (DEJ). (Welf. & Inst. Code, § 790.)
On January 25, 2013, the minor entered a negotiated admission to “Count 1
alleging a felony violation of Section 459 of the Penal Code,” with a maximum
confinement of six years, in exchange for DEJ with 60 days on home supervision, eight
days of juvenile work project, and counseling as recommended by probation, as well as
other terms and conditions. The court accepted the minor’s admission and granted DEJ.
(Italics added.)
On February 20, 2013, the minor’s mother reported to the minor’s probation
officer the minor had left home on February 15, 2013 and had not returned. A petition
filed February 22, 2013, alleged the minor violated DEJ by being absent from his
mother’s home for more than 48 hours without the approval of the probation officer
(count I) and by violating the terms of the home supervision contract (count II).
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On May 22, 2013, the minor entered a negotiated admission to count I in exchange
for dismissal of count II and the prosecutor’s agreement not to file criminal charges
against the minor stemming from an incident on March 2013 on school grounds when the
minor attempted to grab an officer’s firearm for which the minor was suspended from
school for three days. The court revoked DEJ probation. Based on the minor’s
admission of the charged burglary in the original petition, the court found the charged
burglary to be true and sustained the October 2012 petition. The court declared the minor
a ward of the court and granted supervised felony probation subject to wardship terms
and conditions (same conditions that had been imposed under DEJ probation) including
DNA testing (under DEJ probation, DNA testing had been held in abeyance). The minor
was released to his mother’s custody.
A petition filed October 10, 2013, alleged that the minor violated the terms and
conditions of probation: he failed to complete two days of work project on October 5,
2013 (count I); he was suspended from school for misconduct (count II) and he had used
marijuana (count III) on September 19, 2013; he committed fare evasion on July 10, 2013
(count IV); and he was suspended from school for misconduct on October 9, 2013 (count
V). On November 4, 2013, the minor admitted count II. The court revoked probation
and then reinstated the minor on probation subject to the additional conditions that he
serve 30 days in juvenile hall and upon release, he should be placed in a level “A”
facility.
DISCUSSION
The People argue this court is without jurisdiction to determine the merits of the
minor’s current appeal from the November 2013 order concerning the minor’s violation
of probation as it raises issues that should have been raised in an appeal from the May
2013 dispositional order and that the appeal must be dismissed. Arguing the doctrine of
constructive filing does not apply, the People state that they have no knowledge of any
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promise by the minor’s trial counsel to file an appeal from the May 2013 order and argue
there were not any arguably meritorious grounds for reversal or modification of that order
which would have required trial counsel to file an appeal.
The minor responds that the issues raised in his appeal are timely, arguing the
court’s imposition of a six-year maximum confinement term in November 2013,
“triggered the issues raised in the current appeal.” The minor notes that in January 2013,
the court informed the minor the maximum confinement was six years if he failed DEJ
probation but argues the advice had no legal effect, citing In re A.C. (2014)
224 Cal.App.4th 590 (A.C.).
A.C. is of no assistance to the minor. In A.C., the minor’s only claim on appeal
was that the court “ ‘erred in setting a maximum confinement time when he was released
home on probation’ and [asked] that [the appellate court] strike the portion of the order
including the maximum confinement term.” The A.C. court agreed, striking the term.
(A.C., supra, 224 Cal.App.4th at p. 591.)
The minor’s argument is not the same as the minor’s in A.C. Here, the minor
argues the degree of his burglary offense had not been determined prior to the November
2013 order. Plus, the minor is wrong; the imposition of the six-year confinement term,
even if done for the first time in November 2013, did not “trigger” the issue concerning
the designation of his offense as first degree. The term was imposed by the juvenile
court’s disposition order entered on May 22, 2013.
“A minor may appeal a judgment in a Welfare and Institutions Code section 601
or 602 proceeding ‘in the same manner as any final judgment.’ [Citation.] The juvenile
court’s jurisdictional findings are not immediately appealable and the appeal is taken
from the order made after the disposition hearing. [Citation.] The minor may also appeal
any subsequent order in such proceedings ‘as from an order after judgment.’ [Citation.]
[¶] An appeal in a juvenile case must generally be filed ‘within 60 days after the
rendition of the judgment or the making of the order being appealed.’ [Citations.] ‘A
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timely notice of appeal, as a general matter, is “essential to appellate jurisdiction.” ’
[Citation.] ‘In general, an appealable order that is not appealed becomes final and
binding and may not subsequently be attacked on an appeal from a later appealable order
or judgment.’ [Citation.]” (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1138
(Shaun R.).)
The time to appeal from the juvenile court’s May 2013 dispositional order ran in
July 2013 and the minor did not appeal. A petition alleging a violation of probation was
filed in October 2013 and the court made its order on the petition in November 2013.
The minor filed a notice of appeal in December 2013, appealing from the November
2013 order. The 60 days had long expired to file an appeal from the May 2013 order.
Although the minor timely appealed from the November 2013 order, he is precluded from
raising issues challenging the May 2013 order.
The minor is also precluded from raising issues related to the May 2013 order
because his notice of appeal only cited the November 2013 order. “A notice of appeal is
sufficient if it identifies the particular judgment or order being appealed. [Citations.]”
(Shaun R., supra, 188 Cal.App.4th at pp. 1138-1139; see also In re Melvin J. (2000)
81 Cal.App.4th 742, 753, disapproved of on another ground in John L. v. Superior Court
(2004) 33 Cal.4th 158, 181, fn. 7.) The minor did not list issues related to the May 2013
order in his notice of appeal and is thus precluded from raising them now.
In the alternative, the minor requests this court treat the current appeal as a petition
for a writ of habeas corpus. We will do so, but will deny the petition for a writ of habeas
corpus on the ground that the minor has failed to demonstrate that he would prevail on
the merits of the petition. Since the minor’s appeal does not raise any issues that require
resolution, his appeal will be dismissed.
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DISPOSITION
The appeal is dismissed.
HULL , J.
We concur:
NICHOLSON , Acting P. J.
MURRAY , J.
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