Opinion
NOT TO BE PUBLISHED
Del Norte County Super. Ct. No. CVPT06-1163
Parrilli, J.
On July 28, 2005, Susan Botts was arrested for a felony offense, but later released without an accusatory pleading being filed. Pursuant to Penal Code section 851.8, subdivision (b), she sought an order sealing and destroying her arrest record on the basis that she was factually innocent. On November 22, 2006, the court denied her request, and Botts appeals that ruling. We conclude that the appeal was improperly sent to this court and should be transferred to the appellate division of the superior court.
All further unspecified statutory references are to the Penal Code.
Because the parties have cited the statutory provisions pertaining to our appellate jurisdiction, we deem it appropriate to address the issue without requiring supplemental briefing. (Cf. People v. Alice (July 5, 2007, S144501), 2007 WL 1932737, 2007 Cal. Lexis 7077 [Court of Appeal should have requested supplemental briefing before deciding appellate jurisdiction based on statutory authority neither proposed nor addressed by the parties in their briefs].)
Judgments resolving petitions to seal and destroy arrest records under section 851.8, subdivision (b), are “subject to the following appeal path: [¶] (1) In a felony case, appeal is to the court of appeal. [¶] (2) In a misdemeanor case, or in a case in which no accusatory pleading was filed, appeal is to the appellate division of the superior court.” (§ 851.8, subd. (p)(1), (2).)
Botts properly filed a timely notice of appeal in the Del Norte Superior Court. (Cal. Rules of Court, rules 8.304, 8.308, 8.780(a).) Although Botts referred to subdivision (p)(2) of section 851.8 in her notice of appeal, she did not specify the court to which the appeal should be directed, nor was she required to do so. (Rule 8.304(a)(4).) Apparently in the absence of a designated appellate court, the superior court is directed to treat the appeal as taken to the Court of Appeal for the district in which the superior court is located. (Ibid.) Nevertheless, in this case, the appeal was misdirected to this court.
All further unspecified rule references are to the California Rules of Court. At the time Botts filed her notice of appeal, the filing of the notice of appeal was governed by former rules 30, 30.1, 180. Effective January 1, 2007, the rules were renumbered and amended. For consistency and convenience, we refer to the rules in this opinion by their current numbers.
In her opening brief, Botts again recites that the appeal is authorized by subdivision (p)(2) of section 851.8. Respondent contends the appeal is properly before this court because it is a felony case pursuant to subdivision (p)(1) of section 851.8. Although Botts was arrested for a felony offense, this is not a felony case for appellate jurisdiction. A felony case is “a criminal action in which a felony is charged.” (§ 691, subd. (f).) “A felony is ‘charged’ when an information or indictment accusing the defendant of a felony is filed or a complaint accusing the defendant of a felony is certified to the superior court under Penal Code section 859a.” (Rule 8.304(a)(2); see generally People v. Nickerson (2005) 128 Cal.App.4th 33, 37-39 (Nickerson) [discussion of when a felony is “charged” for purposes of ascertaining appellate jurisdiction].) Here, no felony information or indictment was filed, and a magistrate never certified the case to the superior court pursuant to section 859a. Thus, this is not an appeal in a felony case. Instead, this is an appeal “in a case in which no accusatory pleading was filed,” which is to be heard by “the appellate division of the superior court.” (§ 851.8, subd. (p)(2).)
Because jurisdiction rests with the appellate division of the superior court, we shall transfer this fully briefed case to that court for determination of the appeal. (Nickerson, supra, 128 Cal.App.4th at pp. 39-40 [Court of Appeal can transfer case to the appellate division of the superior court pursuant to Government Code section 68915 and its inherent authority over its own jurisdiction and calendars].)
Government Code section 68915 provides, “No appeal taken to the Supreme Court or to a court of appeal shall be dismissed for the reason only that the same was not taken to the proper court, but the cause shall be transferred to the proper court upon such terms as to costs or otherwise as may be just, and shall be proceeded with therein, as if regularly appealed thereto.”
DISPOSITION
The appeal in this court is dismissed. The clerk of this court is directed to transfer the record and briefs in this case to the clerk of the appellate division of the Del Norte County Superior Court for resolution in that court.
We concur: McGuiness, P. J., Pollak, J.