In re M.T.

Filed 12/24/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
In re M.T., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
M.T., A155224
Defendant and Appellant. (Contra Costa County
Super. Ct. No. J1800198)
Appellant M.T. challenges an August 20, 2018 restitution order imposed as a
condition of her release on a program of supervision (“informal supervision”) under
section 654.2 of the Welfare and Institutions Code.1 We conclude dismissal is mandated
as the order is neither a judgment nor an order after judgment for which an appeal is
authorized under section 800.2
FACTUAL AND PROCEDURAL BACKGROUND
We set forth only those facts necessary to give context to our ruling.
On March 6, 2018, the Contra Costa County District Attorney filed a section 602
petition, later amended, alleging appellant had committed a misdemeanor battery against
a fellow student (victim) on school property (Pen. Code, §§ 242, 243.2, subd. (a)(1)).
1
All further unspecified statutory references are to the Welfare and Institutions
Code.
2
In light of our determination, we deny as moot the People’s separate motion to
dismiss.
1
The charge arose from a physical fight between appellant and the victim during which the
victim’s cell phone and case dropped to the ground. While the fight was being broken up
by school staff, another student picked up and stole the victim’s cell phone and case.
On April 4, appellant appeared before the juvenile court and denied the amended
allegation; the matter was referred to the probation department for a determination of
suitability for informal supervision under section 654.2, subdivision (a). On May 9, the
juvenile court placed appellant on informal supervision for six months, with standard
conditions of probation. Without objection by appellant, the juvenile court left the
amount of restitution “open,” but directed that appellant and her parents, and a co-
participant minor, would be jointly and severally liable to pay restitution to the victim
pursuant to sections 730.7, subdivisions (a) and (b), and 730.6, subdivision (j)(4),
restitution provisions generally applicable to minors already adjudicated as persons
described in section 602. The juvenile court informed appellant she had a right to appeal
within 60 days of the order and set a restitution hearing.
The contested restitution hearing went forward on August 20, 2018. In advance of
the hearing, the probation department filed a report stating it had received a victim impact
and claim statement seeking restitution in the aggregate sum of $989 for: the cell phone
($869.00) and cash ($80.00) located in the cell phone case stolen during the attack; $10
insurance copay for an emergency room visit for injuries incurred in the attack; and $30
insurance copay for three therapy visits. Appellant objected to the juvenile court
imposing restitution for the loss of the victim’s cell phone and the money in the case
because the property had been taken by another student with whom she had no
association. The People argued the property fell to the ground because the victim had to
defend herself against appellant and, therefore, appellant should be held responsible for
the victim’s loss.
Appellant filed a timely notice of appeal from the August 20, 2018 order, stating
the juvenile court had abused its discretion and ruled in error when it ordered her “to pay
restitution for a theft she was not involved in nor charged with.”
2
DISCUSSION
I. Applicable Law
“The Legislature has mandated that minors who fall within the jurisdiction of the
juvenile court as a result of delinquent behavior ‘shall, in conformity with the interests of
public safety and protection, receive care, treatment, and guidance that is consistent with
their best interest, that holds them accountable for their behavior, and that is appropriate
for their circumstances. This guidance may include punishment that is consistent with
the rehabilitative objectives of this chapter.’ [Citations.] Consistent with this mandate,
the Legislature enacted section 654, which . . . ‘authorizes an informal supervision
program for a minor who in the opinion of the probation officer is, or will probably soon
be, within the jurisdiction of the juvenile court. The purpose of the informal supervision
program is to provide assistance and services to the minor and the minor’s family to
“adjust the situation” and avoid further involvement in the formal juvenile criminal
justice system. . . . [¶] In 1989 section 654.2 was enacted to permit the court to order a
section 654 informal supervision program for a minor after a section 602 petition has
been filed.’ [Citations.]” (Derick B. v. Superior Court (2009) 180 Cal. App. 4th 295,
300–301 (Derick B.).) Where the minor has violated an offense in which the restitution
(as defined in section 730.6, subdivision (h)) “owed to the victim” exceeds $1,000, “the
minor is not eligible for informal supervision except in an unusual case where the
interests of justice are best served by allowing that participation. . . . (§ 654.3,
subd. (g).)” (In re K.C. (2013) 220 Cal. App. 4th 465, 472, fn. 4.)
In 1990, the Legislature added section 654.6, later amended in 2017, which now
provides that “[a] program of supervision pursuant to Section 654 or 654.2 for any minor
described in Section 602 shall include constructive assignments that will help the minor
learn to be responsible for his or her actions. The assignments may include, but not be
limited to . . . requiring the minor to repair damaged property or to make other
appropriate restitution . . .” (§ 654.6; added by Stats. 1990, ch. 258, § 2, p. 1529, as
amended by Stats. 2017, ch. 678 (S.B. 190), § 10, eff. Jan. 1, 2018).
3
II. August 20, 2018 Restitution Order is Not An Appealable Order
Appellant contends her appeal is authorized by section 800. That section provides,
in pertinent part, that “[a] judgment in a proceeding under Section 601 or 602 may be
appealed from, by the minor, in the same manner as any final judgment, and any
subsequent order may be appealed from, by the minor, as from an order after judgment.”
(§ 800, subd. (a).)
In 2005, in Ricki J. v. Superior Court (2005) 128 Cal. App. 4th 783 (Ricki J.), our
colleagues in the Third District expressly held that section 800 does not authorize an
appeal from an order placing a minor on informal supervision under section 654.2 for the
following reasons, in pertinent part:
“It is well settled that the right to appeal is wholly statutory and that a judgment or
order is simply not appealable unless expressly made so by statute. [Citations.] ‘The
orders, judgments and decrees of a juvenile court which are appealable are restricted to
those enumerated in section 800. . . . [Citation.] . . . [However,] [t]here is no final
judgment when a minor is placed on informal supervision under section 654.2.
“ ‘In general, a “judgment” is “the final determination of the rights of the parties n
an action or proceeding.” (Code Civ. Proc., § 577.) More specifically, the “judgment” in
a juvenile court proceeding is the order made after the trial court has found facts
establishing juvenile court jurisdiction and has conducted a hearing into the proper
disposition to be made. [Citations.]’
“Section 654.2 provides in relevant part: ‘If a petition has been filed by the
prosecuting attorney to declare a minor a ward of the court under Section 602, the court
may, without adjudging the minor a ward of the court and with the consent of the minor
and the minor’s parents or guardian, continue any hearing on a petition for six months
and order the minor to participate in a program of supervision as set forth in Section
654. . . . If the minor successfully completes the program of supervision, the court shall
order the petition be dismissed.’ (Italics added.)
“Thus, the procedure contemplated by section 654.2 is a postpetition,
preadjudication, certainly prejudgment, program of informal supervision. An order
4
pursuant to section 654.2 essentially places the adjudicatory process on hold in the hope
the minor will successfully complete the program of supervision and thereby avoid a
judgment altogether. There is no ‘judgment’ from which to appeal at this point.” (Ricki
J., supra, at pp. 788–789.)
Appellant contends she is not appealing from the May 9 order placing her on
informal supervision but, instead, her appeal is limited to the August 20 restitution order,
which should be considered separate from the May 9 order. However, the August 20
restitution order is “encompassed” within the May 9 order (which is not an appealable
judgment), and “cannot be considered as somehow separate from it” (In re T.C. (2012)
210 Cal. App. 4th 1430, 1432) or as an order after judgment.
Additionally, the juvenile court was statutorily authorized to direct appellant to
pay restitution as a condition of informal supervision under section 654.2. As noted,
once a section 602 petition has been filed, section 654.2 grants the juvenile court the
option of placing the minor on informal supervision as set forth in section 654. (§ 654.2,
subd. (a).) In Charles S. v. Superior Court (1982) 32 Cal. 3d 741, our Supreme Court
held that even though section 654 does not expressly mention restitution, a minor may be
required to pay restitution to a victim as a condition of informal supervision proposed by
the probation department. (Id. at pp. 747–748.) Since Charles S. was decided, “the
operative statute defining the . . . supervision program under section 654 has been added
to and amended several times since its enacting statute that was considered in Charles S. .
. . [And,] . . . restitution is now mentioned and specifically provided for in section 654.6
. . . .” (Derick B., supra, 180 Cal.App.4th at p. 306.) While section 654.6 does not
specifically mention the payment of restitution, “the language ‘including, but not limited
to’ ” indicates the specific examples of constructive assignments are not “exclusive”
(American Cargo Express, Inc. v. Superior Court (2017) 16 Cal.App.5th 145, 156) and
“suggests a legislative intention” to allow the juvenile court broad discretion to direct the
minor to perform constructive assignments as conditions of informal supervision (In re
M.W. (2008) 169 Cal. App. 4th 1, 6). Thus, the fact that section 654.6’s examples of
constructive assignments do not include a specific provision for “payment of restitution”
5
is of no moment. The plain language of section 654.6 provides the necessary authority
for the juvenile court to direct a minor to pay restitution.
Finally, we are not persuaded by appellant’s argument that her appeal of the
August 20 restitution order is cognizable on the basis that, at the end of the May 9
hearing, the juvenile court told appellant she had a right to appeal. Albeit not dispositive,
we note appellant did not file an appeal from the May 9 order, and the juvenile court did
not repeat its statement that appellant had the right to appeal at the August 20 hearing. In
any event, appellate jurisdiction cannot be conferred on this court by the juvenile court’s
statement. (See, e.g. Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal. 3d 660,
666 [appellate jurisdiction cannot be conferred “ ‘by the consent or stipulation of the
parties, estoppel, or waiver’ ”].)
In sum, the August 20 restitution order is not appealable as it is neither a judgment
nor an order after judgment for which an appeal is authorized under section 800.
III. Notice of Appeal Will Not be Treated as Petition for Writ of Mandate
Appellant asserts the juvenile court erred as a matter of law and abused its
discretion by directing her to pay restitution for the victim’s property. We decline her
request to treat her notice of appeal as a petition for a writ of mandate in order to consider
the merits of her appellate claim.
“An extraordinary writ will issue only when we ‘find that it is . . . “necessary to
protect a substantial right and [then] only when it is shown that some substantial damage
will be suffered by petitioner if said writ is denied.” [Citation.]’ [Citations.]” (In re
Mario C. (2004) 124 Cal. App. 4th 1303, 1312 (italics added) [appellate court declined to
treat notice of appeal from order denying motion to suppress as a petition for writ of
mandate where minor could challenge order on appeal if he failed on probation and
judgment was entered against him; “nothing in this record justifies the extraordinary step
of construing the notice of appeal as an application for extraordinary relief, because there
is no basis to conclude that a reversal” of the order denying suppression would “ ‘protect
a substantial right’ or avert ‘some substantial damage’ that ‘will be suffered by [the
minor] if said writ is denied’ ”].)
6
As to the first prong, necessity, appellant argues the appealability of the August 20
restitution order was not clear and she should not be forced to obtain review by an appeal,
relying on Olson v. Cory (1983) 35 Cal. 3d 390 at page 401 (Olsen) (appeal from a trial
court order denying plaintiff judges and judicial pensioners’ claim to prejudgment
interest on the salary and pension increases to which they had previously been held
entitled). However, Olson does not support her argument as, in that case, our Supreme
Court expressly admonished that the “power to treat [a] purported appeal as a petition for
writ of mandate” should be exercised only “under unusual circumstances.” (Olsen,
supra, at p. 401.) Here we are not faced with either unusual circumstances or an issue of
appealability that was “far from clear in advance” (id. at p. 401) given the Ricki J.
decision issued in 2005.
Appellant has also not made any showing of substantial prejudice. The People
assert the juvenile court has sealed appellant’s juvenile record after finding she
successfully completed informal supervision in November 2018, having paid $50 in
restitution, and there is no indication the juvenile court has converted any unpaid court-
ordered restitution to a civil judgment under section 730.6, subdivision (r). Appellant
does not challenge the People’s representation of the current status of her case and has
not augmented the record to demonstrate the juvenile petition is still extant.3 Even if the
juvenile petition were still extant, appellant will have the opportunity to challenge the
August 20 restitution order after completion of the juvenile proceeding. For example, in
In re K.C., supra, 220 Cal. App. 4th 465, the appellate court entertained an appeal in
which the minor challenged the juvenile court’s conversion of the balance of restitution
to a civil judgment under section 730.6 after successful termination of the minor’s
informal supervision under section 654 and dismissal of the juvenile petition (In re K.C.,
supra, at p. 470); and in In re J.G. (2017) 7 Cal.App.5th 955, the appellate court found it
had “jurisdiction to review the juvenile court’s order terminating probation [that had been
3
We deferred ruling on the People’s separate motion to dismiss (fn. 2, ante) to
allow for the possible augmentation of the record concerning the status of appellant’s
informal supervision.
7
imposed after entry of deferred judgment], dismissing the wardship petition, and
converting restitution to a civil judgment, because that order is a judgment within the
meaning of section 800, subdivision (a) in that it renders a final determination of the
rights of the parties” (In re J.G., supra, at pp. 962–963).4
Therefore, under the circumstances presented in this record, we decline to exercise
our discretionary authority to treat appellant’s notice of appeal as a petition for a writ of
mandate.
DISPOSITION
The appeal of the August 20, 2018, order is dismissed. The People’s separate
motion to dismiss the appeal is denied. Appellant’s request to treat her notice of appeal
as a petition for a writ of mandate is denied.
4
In re J.G., supra, 7 Cal.App.5th 955, was reversed and remanded on different
grounds in In re J.G. (2019) 6 Cal.5th 867.
8
_________________________
Petrou, J.
WE CONCUR:
_________________________
Siggins, P.J.
_________________________
Fujisaki, J.
A155224/People v. M.T.
9
Trial Court: Contra Costa County Superior Court
Trial Judge: Hon. Lois Haight
Counsel: Xavier Becerra, Attorney General, Berit G. Fitzsimmons, Deputy Attorney
General, for Plaintiff and Respondent.
First District Appellate Project, L. Richard Braucher, for Defendant and
Appellant.
10