Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VJ31900 Catherine J. Pratt, Commissioner.
Torres & Torres and Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Beverly K. Falk, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, J.
In an April 2010 dispositional order, appellant I.D. was continued as a ward of the court under section 602 of the Welfare and Institutions Code, based on his latest sustained section 602 petition, which alleged one count of residential burglary (Pen. Code, § 459). He was ordered to long term camp placement. The order continued probation conditions that were imposed in an earlier, October 2007 disposition order relating to a prior sustained petition, from which appellant did not appeal. In this appeal from the April 2010 disposition order, appellant contends that two of the 2007 conditions are unconstitutionally vague. Based on In re Shaun R. (2010) 188 Cal.App.4th 1129 (Shaun R.), we conclude that appellant cannot challenge the 2007 probation conditions and dismiss the appeal.
All further section references are to the Welfare and Institutions Code.
BACKGROUND
The 2007 Disposition Order
In October 2007, appellant admitted the allegation of a prior section 602 petition that he unlawfully drove and took a vehicle (Veh. Code, § 10851, subd. (a)). The offense was declared a felony and he was ordered to remain a ward of the court (he had suffered an earlier sustained petition for misdemeanor possession of a billy club, Pen. Code, § 12020, subd. (a)(1)). He was placed on probation subject to various terms, including: (1) that he “not use or possess narcotics, controlled substances, poisons, or related paraphernalia [and] stay away from places where known users congregate”; and (2) that he “not associate with persons known to be users or sellers of narcotics/controlled substances.”
Subsequently, another section 602 petition was sustained against appellant in February 2009 for felony attempt to dissuade a witness (Pen. Code, § 136.1, subd. (a)(2)). Although the record is not entirely clear, it appears that the 2007 probation terms were ordered to remain in effect, with the modification that appellant be placed in the camp community placement program for six months.
The Current Petition
The present sustained petition was filed in February 2010. The supporting evidence was as follows.
Around noon on February 12, 2010, Julie Veen was at home when she heard noises as if someone was inside, and noticed that a door that had been open was now closed. Suddenly, she saw appellant looking in her kitchen window from the outside. He made a move toward the den window, then turned and ran the opposite direction, over a fence into the alley. A second boy ran past the kitchen window and over the fence.
Veen called 911 and described the boys she had seen. Police detained appellant and another boy two blocks from Veen’s home. She was taken to the detention scene and identified appellant. Veen later discovered that the air conditioner in her den window had been turned sideways, creating an open space in the window through which to enter. Although no property was missing, the television had been moved, a PlayStation 3 had been placed inside a duffle bag, and a DVD player had been moved near the window.
At the April 2010 disposition hearing, the court ordered appellant placed in a long term camp program and continued the same probations conditions already in place.
Although the court’s order was not entirely clear, the court’s intent to make appellant subject to the existing conditions of probation is clear. The court informed appellant that his maximum confinement time was eight years and that upon release from custody that time could be imposed if he did not “follow the rules on probation.”
Appellant appeals from the order.
DISCUSSION
Appellant contends that he is subject to two probation conditions that are unconstitutionally vague, both of which were originally imposed in October 2007: that he “not use or possess narcotics, controlled substances, poisons, or related paraphernalia [and] stay away from places where known users congregate”; and that he “not associate with persons known to be users or sellers of narcotics/controlled substances.” However, his challenge to these conditions is not timely. In Shaun R., supra, 188 Cal.App.4th 1129, the court held that a “routine continuation of a previous order [of probation] without change [does not revive] the right to appeal the merits of a previous order that has become final.” (Id. at p. 1139.) Specifically, “‘[a] 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.]” (Id. at p. 1138.) Here, appellant failed to appeal from the October 2007 disposition order, and his current appeal does not revive the probation conditions so as to be subject to challenge now.
Appellant acknowledges Shaun R., but argues that the case was wrongly decided, and that we should follow the reasoning of the dissent in that case.
We agree with the conclusion reached in Shaun R. for the reasons stated therein. In short, the court’s order that the probation conditions remain in effect in the April 2010 disposition did not create a right to appeal orders from the October 2007 disposition and “we are without jurisdiction to entertain the minor’s arguments with regard to the 200[7] Orders.” (Shaun R., supra, 188 Cal.App.4th at p. 1141.)
DISPOSITION
The appeal is dismissed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.