Opinion
B191648
4-24-2007
In re FEDERICO G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. FEDERICO G., Defendant and Appellant.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
INTRODUCTION
Minor appeals from the order of May 19, 2006, denying his motion to have his DNA sample destroyed or the record of it sealed, because his juvenile adjudication had been reduced to a misdemeanor. As appellant has failed to provide an adequate record for review, we affirm the order. Appellant also purports to appeal from the judgment entered December 13, 2004. Because appellant failed to timely file a notice of appeal from the judgment, that part of his appeal must be dismissed.
BACKGROUND
Appellant was detained in October 2004, when a three-count petition was filed to bring him within the jurisdiction of the juvenile court, pursuant to Welfare and Institutions Code section 602. The petition alleged that appellant had committed the crime of carrying a loaded, unregistered firearm, in violation of Penal Code section 12031, subdivision (a)(1). Based upon the same facts, the petition also alleged a violation of Penal Code section 12101, subdivision (a)(1), possession of a concealable handgun, and a violation of Penal Code section 12025, subdivision (a)(3), carrying a concealable firearm in a vehicle. Appellant admitted the allegations of the petition, and he was adjudicated a ward of the juvenile court December 13, 2004. In the same proceeding, the juvenile court entered a disposition, placing appellant on probation at home with his parents for a period not to exceed three years. Appellant did not appeal from that order.
All further statutory references are to the Welfare and Institutions Code, unless otherwise noted.
The juvenile court scheduled progress hearings, with and without appearances, and appellants progress reports were favorable. At a nonappearance progress hearing, held April 11, 2006, the court ordered appellant to furnish a DNA sample, and he complied. The final appearance progress hearing was held May 19, 2006. Appellants progress was still good, and appellants motion to reduce the adjudicated offenses to a misdemeanor was granted. At the same time, appellant moved to have the DNA sample destroyed and the record of it sealed, but that motion was denied. Appellant filed a notice of appeal May 24, 2006, specifying that the appeal was taken from the order of May 19, 2006, denying his request to destroy the DNA sample.
DISCUSSION
Appellant contends that the juvenile court erred in failing to consider him for deferred entry of judgment (DEJ) under section 790, et seq. (See also Cal. Rules of Court, rule 5.800 [formerly rule 1495].) The statute requires the prosecuting attorney to assess the eligibility of the minor for DEJ, either before the filing of the section 602 petition or as soon as possible thereafter; if the minor meets the DEJ eligibility requirements, the prosecuting attorney must notify the court of that determination. (§ 790, subd. (b); In re Luis B. (2006) 142 Cal.App.4th 1117, 1122.) If the minor is eligible, the prosecuting attorney must also notify the minor, and such notification must include an explanation of the procedures to follow in order to obtain DEJ in lieu of adjudication and disposition. (§ 791, subd. (a).) With the minors consent, the juvenile court may summarily grant DEJ, but otherwise, must schedule a hearing and cite the minors parents to attend. (§§ 791, subd. (b), 792; Cal. Rules of Court, rule 5.800(f); In re Luis B., at p. 1123.) The courts failure to follow the statutory procedures will result in reversal on appeal. (In re Luis B., at pp. 1123-1124.) In this case, the record shows that the prosecuting attorney determined that appellant was eligible for DEJ and so notified the court, but there is no record in the clerks transcript that the remaining requirements were met, and the record on appeal contains no reporters transcript of the 2004 proceedings.
Assuming for discussion that a complete record would show error, we have no jurisdiction to review it. Appellant did not file an appeal from the adjudication/dispositional order, which was entered December 13, 2004. The dispositional order is the appealable judgment in a juvenile proceeding under section 602. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 112; § 800, subd. (a).) All orders made prior to the dispositional order, including the adjudication, are reviewed on appeal from that judgment. (In re James J. (1986) 187 Cal.App.3d 1339, 1342-1343.) With exceptions not applicable here, a notice of appeal must be filed "within 60 days after the rendition of the judgment or the making of the order being appealed." (Cal. Rules of Court, rule 8.400(d)(1).) The appellate court has no jurisdiction to review an untimely appeal, and must dismiss it. (In re Gary R. (1976) 56 Cal.App.3d 850, 852-853; see In re Henry S. (2006) 140 Cal.App.4th 248, 255.)
Appellant contends that he may raise the issue at any time, because the failure to follow the statutory procedures renders the dispositional order void due to lack of jurisdiction. However, appellant does not claim that the juvenile court lacked fundamental jurisdiction, viz., jurisdiction over the juvenile and the subject matter of the prosecution, arguing only that the court acted in excess of its jurisdiction. (See Cowan v. Superior Court (1996) 14 Cal.4th 367, 372-373 [distinguishing the two concepts].) A lack of fundamental jurisdiction may be raised at any time. (People v. Mower (2002) 28 Cal.4th 457, 474.) A challenge to a ruling in excess of jurisdiction is subject to forfeiture if not timely asserted. (Ibid.) As there is no indication in the record that the juvenile court lacked jurisdiction over appellant or the subject matter, he was required to raise the issue in a timely appeal. (See ibid.)
After these rules were pointed out by respondent, appellant represented that this appeal was taken from the final dispositional order, referring only to the pages of the clerks transcript where the notice of appeal is reproduced. Although the notice of appeal must be liberally construed, it must identify "the particular judgment or order being appealed." (Cal. Rules of Court, rule 8.400(c)(2).) Appellants notice of appeal identifies only the order of May 19, 2006, denying his motion to destroy his DNA sample. Even were we to ignore the plain language of the notice of appeal and construe the notice as including the unmentioned dispositional order of December 13, 2004, it comes 16 months too late. (In re Gary R., supra, 56 Cal.App.3d at pp. 852-853; Cal. Rules of Court, rule 8.400.)
Thus, we review only appellants second assignment of error, relating to the order of May 19, 2006. Appellant contends that because his offenses were "wobblers," and the record does not show that the juvenile court declared them to be felonies, he should not have been ordered to provide a DNA sample. The juvenile court ordered appellant to provide a DNA sample under authority of Penal Code sections 296, subdivision (a)(1), and 296.1, subdivision (a)(3), which require the collection of DNA from anyone convicted of a felony, including a juvenile whose adjudication under section 602 was based upon the commission of a felony. The juvenile court must declare any wobbler to be either a felony or misdemeanor at the time of disposition, even if the offense was charged as a felony. (§ 702; In re Manzy W. (1997) 14 Cal.4th 1199, 1203-1204, 1207 (Manzy W.); see Cal. Rules of Court, rule 5.790(a).) It has been held that when a minor is adjudicated under section 602 after admitting the commission of an offense that would be either a misdemeanor or a felony if committed by an adult, the DNA requirement is not triggered until the juvenile court expressly declares the offense to have felony status. (In re Nancy C. (2005) 133 Cal.App.4th 508, 510, 512 (Nancy C.).)
"`Wobblers are offenses punishable either as felonies or misdemeanors, in the discretion of the court. [Citation.]" (Coffey v. Superior Court (2005) 129 Cal.App.4th 809, 812, fn. 2.)
Appellant contends that respondents brief asserts that the juvenile court deferred the declaration. He is mistaken. Respondent merely paraphrased appellants contention to that effect.
Here, the appellate record does not include a reporters transcript of the hearing of December 13, 2004, and the juvenile courts dispositional order is unclear. It was entered on a preprinted minute order form with boxes to be checked. Item No. 30 reads: "Offense is declared to be a "felony (count(s) ______)" misdemeanor (count(s) ______)." No box is checked, but "1, 2, 3" is handwritten on the line following " felony (count(s)." It is impossible to know whether the numbers were intentionally or mistakenly written, or whether the court intended to mark the felony box, the misdemeanor box, or neither box. However, even if one of the boxes had been checked, the minute order would not comply with the statute, as a notation on a minute order is insufficient by itself — there must be an express declaration on the record. (Manzy W., supra, 14 Cal.4th at pp. 1207-1209; see § 702; Cal. Rules of Court, rule 5.790(a).) Further, the declaration required by section 702 cannot be implied from the punishment imposed or the grant of probation. (Manzy W., at pp. 1206-1207.)
Appellant contends that because no boxes were checked on the minute order, it must be assumed there was no declaration. Respondent suggests we need not reach the issue, because now that the offenses have been reduced to misdemeanors, appellant may apply to have the sample destroyed, pursuant to the procedure provided by Penal Code section 299, as suggested in Nancy C. In Nancy C., the court suggested that if the sample had already been taken, and the juvenile court on remand were to declare the offense to be a misdemeanor, the minor would be able to follow the procedure of Penal Code section 299. (Nancy C., supra, 133 Cal.App.4th at p. 512.) However, Nancy C., unlike the instant case, involved a direct appeal from the judgment; the suggestion was contingent upon an affirmative finding on remand that there had been no declaration, and upon a subsequent misdemeanor declaration. (See id. at pp. 510, 512.) We are unable to remand for a declaration in this case, because appellant did not timely appeal from the judgment.
Under Penal Code section 299, destruction and expungement are not available to convicted felons whose offense is later reduced to a misdemeanor under Penal Code section 17. (See Pen. Code, § 299, subds. (b), (f).) Once there has been a felony adjudication, only a later reversal, dismissal or acquittal will justify expungement. (Ibid.) Appellants claim that his motion was made pursuant to Penal Code section 299 is not supported by the record. Section 299 requires a written request, with copies to the court, the DNA laboratory, the Department of Justice, and to the prosecuting attorney. (§ 299, subd. (c)(1).) No written request appears in the record.
Respondent further contends that in the absence of a reporters transcript, the issue must be resolved against appellant, as it was his burden to provide it. We agree. Citing Manzy W., appellant claims that it was the courts burden, not his, to provide a transcript of the disposition, in order to show that the declaration was made. In Manzy W., however, the court had the reporters transcript before it — indeed, the court quoted from it. (See Manzy W., supra, 14 Cal.4th at p. 1203.) There was no holding in Manzy W. modifying the burden to provide an adequate record on appeal — the court held that the juvenile court must make a proper record, not that the juvenile court must furnish the record to the appellate court without a request. (See id. at p. 1208.)
It is always the appellants burden to provide an adequate record on appeal, and that burden extends to juvenile appellants. (In re Raymundo B. (1988) 203 Cal.App.3d 1447, 1452.) "`"For an appeal to engage the consideration of an appellate court, it must be brought up on a record which, in addition to being otherwise formally sufficient, shows the error calling for correction. Such error is never presumed, but must be affirmatively shown, and the burden is upon the appellant to present a record showing it, any uncertainty in the record in that respect being resolved against him." This basic rule is a corollary of the equally fundamental principle that all presumptions and intendments are in favor of the regularity of the action of the lower court in the absence of a record to the contrary." (People v. Green (1979) 95 Cal.App.3d 991, 1001; In re Raymundo B., supra, at p. 1452.)
For the first time at oral argument, appellant requested a continuance and opportunity to obtain the missing record. As respondent pointed out more than three months prior to oral argument that appellant had not met his burden to provide an adequate record, and appellant failed to explain his delay in making the request, we deny it.
Absent the necessary record, it must be presumed that the juvenile court regularly performed its duty to declare the felony or misdemeanor status of the offenses. (See Evid. Code, § 664.) Thus, because appellant failed to provide a transcript of the dispositional hearing, we presume the juvenile court expressly declared the offenses to have felony status. We conclude the juvenile court did not err in ordering appellant to provide a DNA sample, or in refusing to order it destroyed or sealed.
In Manzy W., the court refused to apply Evidence Code section 664, because it was clear from the record that the juvenile court had failed to make a declaration, and there was no indication in the record that it had even considered the question. (Manzy W., supra, 14 Cal.4th at p. 1209.) As we are unable to make that determination from this record, the application of the presumption is appropriate. Further support for the presumption is found in the comments of defense counsel at the May 19, 2006 hearing, suggesting that the offenses had been declared to have felony status: "Your Honor, in regards to the DNA sample collected, I would ask that the court order that that sample be sealed and destroyed since its no longer a felony." (Italics added.)
DISPOSITION
The appeal from the judgment is dismissed. The appeal from the order of May 19, 2006, denying appellants motion to destroy his DNA sample or seal the record of it, is affirmed.
We concur:
EPSTEIN, P. J.
WILLHITE, J.