Opinion
F052691
4-21-2008
In re MARCELO H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. MARCELO H., Defendant and Appellant.
William I. Parks, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
THE COURT
A January 3, 2007 Welfare and Institutions Code section 602 juvenile wardship petition alleged that on or about December 30, 2006 appellant (then 17 years of age) committed the crimes of attempted murder (Pen. Code, §§ 187, subd. (a)/664(a); count 1) and assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1); count 2). It further alleged that appellant committed these offenses for the benefit of, at the direction of, and in association with a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)).
The next day, appellant entered a plea of no contest to the count 2 allegations. Count 1 was dismissed. According to the probation report, appellant was one of several juveniles who beat and stabbed a man at about 5:30 p.m. on December 30, 2006, on South Chess Terrace in Porterville. Just prior to the attack, the juveniles yelled "Poros," a gang affiliation. At a February 28, 2007 disposition hearing the court committed appellant to the Department of Corrections and Rehabilitation, Division of Juvenile Justice, for a term of 7 years and 11 months, with 446 days of credit for time served. Appellants April 16, 2007 notice of appeal states that appellant appeals "from findings and orders of the Court made during the contested disposition of 2/28/07."
APPELLANTS CONTENTION
Appellant contends that the court erred on June 29, 2005 when it accepted appellants admission to a violation of Penal Code section 415 (disturbing the peace) "as a 2 year felony pursuant to special allegation PC 186.22(d)" at an uncontested jurisdiction hearing on a prior wardship petition without complying with Welfare and Institutions Code 702. That statute states in relevant part: "`If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony." (Welf. & Inst. Code, § 702.)
Respondent counters that it is now too late to appeal from the courts June 29, 2005 order, and has moved to dismiss the appeal.
As we shall explain, we agree with respondent that an appeal from the June 29, 2005 order on the prior wardship petition would be untimely, but appellants notice of appeal expressly states that appellant appeals "from findings and orders of the court made during the contested disposition of 2/28/07." The contested disposition of February 28, 2007 is the disposition of the current wardship petition (filed Jan. 3, 2007), and not a disposition of a prior wardship petition filed in 2005. Accordingly, we will deny respondents motion to dismiss the appeal. Because appellant has not shown (and has made no attempt to show) any error in the courts February 28, 2007 findings and orders ("the February 28, 2007 order") in the disposition of the current (Jan. 3, 2007) petition, we will affirm the February 28, 2007 order.
APPELLANT HAS SHOWN NO ERROR
A violation of Penal Code section 415 (disturbing the peace) is a misdemeanor. Such a violation "shall be punished by imprisonment in the county jail for a period of not more than 90 days, a fine of not more than four hundred dollars ($400), or both such imprisonment and fine." (Pen. Code, § 415.) However, "`[a]ny person who is convicted of a public offense punishable as ... a misdemeanor, which is committed for the benefit of, at the direction of or in association with, any criminal street gang with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison for one, two, or three years ...." (Pen. Code, § 186.22, subd. (d).) Thus a misdemeanor committed in violation of Penal Code section 186.22, subdivision (d), becomes a wobbler. Subdivision (d) of Penal Code section 186.22 "provides an option to punish gang-related misdemeanors more severely." (People v. Arroyas (2002) 96 Cal.App.4th 1439, 1445.) Subdivision (d) "allows the court to impose felony punishment for a misdemeanor committed with a gang-related purpose ...." (People v. Arroyas, supra, 96 Cal.App.4th at p. 1445.) "When a misdemeanor is committed in violation of section 186.22 subdivision (d), it becomes a felony, at the judges discretion, for sentencing purposes." (People v. Arroyas, supra, 96 Cal.App.4th at p. 1444. italics omitted.)
As we have already mentioned, Welfare and Institutions Code section 702 provides in pertinent part: "If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony." (Welf. & Inst. Code, § 702.) When a juvenile court fails to "declare" whether a wobbler is to be treated as a misdemeanor or as a felony, and imposes a felony-level disposition, remand is required unless the record shows that the court was aware of its discretion to treat the offense as a misdemeanor. (In re Manzy W. (1997) 14 Cal.4th 1199, 1209.) An appellate court will not presume that the juvenile court was aware of its discretion to treat the offense as a misdemeanor. "We are unpersuaded that such a presumption is appropriately applied when the juvenile court violated its clearly stated duty under Welfare and Institutions Code section 702 and there is nothing in the record to indicate that it ever considered whether the possession offense was a misdemeanor or a felony." (In re Manzy W., supra, 14 Cal.4th at p. 1209.) "[G]enerally, the record in a given case may show that the juvenile court, despite its failure to comply with the statute, was aware of, and exercised its discretion to determine the felony or misdemeanor nature of a wobbler. In such a case, when remand would be merely redundant, failure to comply with the statute would amount to harmless error. We reiterate, however, that setting of a felony-length maximum term period of confinement, by itself, does not eliminate the need for remand when the statute has been violated. The key issue is whether the record as a whole establishes that the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement limit." (In re Manzy W., supra, 14 Cal.4th at p. 1209.)
Appellant contends that when the juvenile court in 2005 accepted appellants admission to a violation of "PC 415 as a 2 year felony pursuant to special allegation PC 186.22(d)," the court violated Welfare and Institutions Code section 702, and nothing in the record establishes that the court was aware of its discretion to treat the 2005 offense (alleged in the first amended petition filed on May 19, 2005 to have occurred on or about March 4, 2005) as a misdemeanor. He argues that we should "remand to the juvenile court for an express declaration pursuant to Welfare and Institutions Code section 702 and possible recalculation of the maximum period of physical confinement." (In re Manzy W., supra, 14 Cal.4th at p. 1211.)
The flaw in appellants argument is that he is appealing from the courts February 28, 2007 disposition order on the current petition, and not from the July 2005 disposition order on the 2005 petition. The courts disposition order on the 2005 petition was appealable. "`[T]he "judgment" in a juvenile court proceeding is the order made after the trial has found facts establishing juvenile court jurisdiction and has conducted a hearing into the proper disposition to be made." (Ricki J. v. Superior Court (2005) 128 Cal.App.4th 783, 789.) "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." (Welf. & Inst. Code, § 800, subd. (a).) The time within which appellant could have appealed from the 2005 disposition order has long since passed. (See Cal. Rules of Court, rule 8.104 (formerly rule 2).) "[W]e have steadfastly adhered to the fundamental precept that the timely filing of an appropriate notice of appeal or its legal equivalent is an absolute prerequisite to the exercise of appellate jurisdiction." (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 670; in accord, see also In re Elizabeth G. (1988) 205 Cal.App.3d 1327, 1331.) Thus the July 2005 disposition order is now final and is no longer appealable.
Appellant attempts to avoid the finality of the July 2005 disposition order by arguing that "[t]he matter is properly considered on appeal where the juvenile court used the prior offense in calculating the minors maximum period of confinement for a current offense" and "the prior disposition at issue became part of the sentencing calculation of the current case and is properly before this Court on review." No one disputes that "[s]ection 726 permits the juvenile court to aggregate terms on the basis of previously sustained section 602 petitions in computing the maximum period of confinement." (In re Adrian R. (2000) 85 Cal.App.4th 448, 454; see also Welf. & Inst. Code, § 726, subd. (c), In re Michael B. (1980) 28 Cal.3d 548, 553, and In re David H. (2003) 106 Cal.App.4th 1131, 1133-1134.) The juvenile court did so here. It utilized the sustained 2005 petition in determining that "[t]he maximum time [appellant] may be confined in secure custody for the offenses sustained in the petition before the Court with the terms of all previously [sustained] petitions known to the Court aggregated is 7 years, 11 months, less 446 days credit for time served." The court thus correctly utilized appellants 2005 "admission to the allegations of the petition, filed: 5/19/05 as to count 1 as amended — PC 415 as a 2 year felony pursuant to special allegation PC 186.22(d)." Appellant calls our attention to no authority, however, that would permit him to reopen the issue of the correctness of an order issued in 2005 on a prior juvenile wardship petition where the time within which he could have appealed the disposition of that prior juvenile wardship petition has long since passed. The language of Welfare and Institutions Code section 800, subdivision (a), quoted above in this opinion and cited by appellant in his opening brief, does not authorize such a review. Nor does anything in In re Antoine D. (2006) 137 Cal.App.4th 1314, or In re James R. (2007) 153 Cal.App.4th 413, cited by appellant in his reply brief. Appellant has shown no error.
DISPOSITION
The February 28, 2007 order is affirmed. Respondents motion to dismiss the appeal is denied. --------------- Notes: Before Ardaiz, P.J., Hill, J. and Kane, J.