Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. JW100250-04. Peter A. Wamerdam, Juvenile Court Referee.
R. Bruce Finch, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Stephen G. Herndon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Gomes, J., Kane, J.
INTRODUCTION
On May 12, 2003, appellant, Marcus G., admitted an amended allegation in a petition filed pursuant to Welfare and Institutions Code section 602, alleging that he received stolen property, a misdemeanor (Pen. Code, § 496, subd. (a)). Marcus was placed on probation. On July 24, 2003, Marcus admitted an allegation in a subsequent petition that he took or drove a vehicle from a car dealership, a felony. The juvenile court left Marcus on probation, but committed him to a term at Camp Erwin Owen.
The court found the offense to be a felony.
The court imposed victim restitution of $40,432.36.
A second subsequent petition was filed on January 25, 2005, alleging Marcus had feloniously committed two knife assaults (Pen. Code, §§ 245, subd. (a)(1), 1192.7, subd. (c)), that he had inflicted great bodily injury on each victim (Pen. Code, § 12022.7), and that he violated the terms of probation (Welf. & Inst. Code, § 777, subd. (a)(2)). After a contested hearing on April 8, 2005, the juvenile court found the allegations of the petition true. The court found counts one and two to be serious felonies.
On May 24, 2005, a third subsequent petition was filed alleging Marcus committed felony aggravated assault on a minor by force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)) and violated the terms of his probation. On June 1, 2005, Marcus waived his constitutional rights and admitted the allegations of the third subsequent petition. Marcus admitted the assault allegation, “charged as a felony, with a possible confinement time up to four years.” Because the juvenile judge was not available to preside over the disposition hearing on the third petition, the court took a waiver from Marcus that Judge Jon E. Stuebbe would preside over that hearing, pursuant to People v. Arbuckle (1978) 22 Cal.3d 749, 756-757 (Arbuckle).
The disposition hearing on the second subsequent petition was also conducted on June 1, 2005. The court continued Marcus on probation and committed him to the Kern Crossroads Facility. On June 13, 2005, the court conducted the disposition hearing on the third subsequent petition, leaving its June 1, 2005 orders in effect.
Marcus filed an appeal only on the second subsequent petition to this court pursuant to People v. Wende (1979) 25 Cal.3d 436. In case No. F048259, we affirmed the juvenile court’s judgment. We reviewed the juvenile court’s findings as to the second petition. Our remittitur was issued on February 9, 2006.
We reviewed the relevant record from our earlier appeal, and, on our own motion, take judicial notice of the record in that proceeding which includes reporter’s transcripts from the April 8, 2005 and June 1, 2005 hearings. (Evid. Code, § 452, subd. (d).) The notice of appeal in case No. F048259 only sought review of the second subsequent petition.
On November 10, 2006, the probation department alleged that Marcus was violating probation by failing to regularly report to his probation officer and absconding from home. Marcus’s mother filed a form alleging that he was an out-of-control truant, possibly using drugs. On November 17, 2006, the probation department filed a formal allegation that Marcus violated the terms of his probation.
On January 2, 2007, Marcus admitted he violated the terms of probation. The probation officer recommended that Marcus be committed to Department of Corrections and Rehabilitation, Juvenile Justice (Juvenile Justice) because less restrictive alternatives had been tried and failed. On January 17, 2007, the juvenile court found the first count from the second subsequent petition was the principal term and imposed commitment of four years plus three years for the great bodily injury enhancement. The court imposed a commitment of one year for the second count in the second petition, plus one year for the great bodily injury enhancement. The court imposed a one-year term for the felony from the third subsequent petition, and eight and four month commitments from earlier misdemeanor adjudications. Marcus’s total term of commitment to Juvenile Justice is 11 years.
The court found all three Penal Code section 245, subdivision (a)(1), allegations from the second and third subsequent petitions to be felonies. Marcus was further ordered to pay restitution fines and victim restitution.
Restitution to a victim from the second petition reached $35,157.60 by January 2007.
On appeal, Marcus contends that the juvenile court’s failure to exercise its discretion concerning whether the assault adjudication of the third petition was a misdemeanor or a felony was error requiring reversal of its commitment to Juvenile Justice. Respondent argues it is too late for Marcus to appeal from the juvenile court’s orders in June 2005 and that, in any event, the juvenile court made the requisite finding at the January 17, 2007 hearing.
DISCUSSION
Marcus contends the juvenile court failed to properly exercise its discretion in violation of In re Manzy W. (1997) 14 Cal.4th 1199 (Manzy W.). Respondent first argues that Marcus failed to appeal from the juvenile court’s orders concerning the adjudication of the third petition on June 1, 2005 and June 13, 2005. We will affirm the juvenile court’s judgment.
We agree with respondent that review of issues relating to the third subsequent petition is precluded because Marcus did not appeal from the adjudication of the hearings related to that petition. (In re Melvin J. (2000) 81 Cal.App.4th 742, 753 [disapproved on another ground in John L. v. Superior Court (2004) 33 Cal.4th 158, 181, fn. 7]; also see In re Matthew C. (1993) 6 Cal.4th 386, 393 and Wanda B. v. Superior Court (1996) 41 Cal.App.4th 1391, 1395-1396.) Marcus’s notice of appeal in 2005 was limited to the second subsequent petition. He failed to notice an appeal from the third subsequent petition.
Marcus responds that the failure of the juvenile court to make a Manzy W. finding in June 2005, violates former California Rules of Court, rules 1487 and 1493 (now rules 5.778(f)(9) and 5.790(a)(1)). These rules require a juvenile court to make a Manzy W. finding after an adjudication, either after a plea or a contested hearing, or at the disposition hearing. These are rules of juvenile court procedure, not of appellate review. Marcus failed to appeal from the June 2005 disposition of the third subsequent petition and is procedurally barred from doing so now.
Even if this court retains jurisdiction to revisit juvenile court orders involving the third subsequent petition in 2005, we agree with respondent that any failure of the juvenile court to make a proper finding pursuant to Manzy W. in June 2005 was cured by the juvenile court’s finding in January 2007 prior to committing Marcus to Juvenile Justice. As a practical matter, reversing the juvenile court’s order now would accomplish nothing because the juvenile court has made a finding pursuant to Manzy W. Sending the matter back to make an additional finding would accomplish nothing.
Furthermore, remanding the case back to the original juvenile judge who heard the matter in June 2005 would accomplish little because Marcus entered into an agreement to admit the felony assault allegation. The original juvenile judge heard no evidence or testimony concerning the third petition and would, therefore, not have any more information to evaluate the gravity of the offense than the juvenile court had before it during the January 2007 hearing.
As noted above, when Marcus admitted the allegations of the third subsequent petition, he also entered a waiver pursuant to Arbuckle. This waiver permitted a juvenile court judge other than the judge who accepted Marcus’s change of plea to conduct Marcus’s disposition hearing.
Juvenile courts also have continuing jurisdiction over a juvenile found to be a ward of the court. (Welf. & Inst. Code, §§ 607, subd. (a), 726, subd. (a), 727; In re Antoine D. (2006) 137 Cal.App.4th 1314, 1320-1321.) The juvenile court in 2007 had continuous jurisdiction over Marcus’s case. It had not lost that jurisdiction in 2007 to find the 2005 adjudication from the third subsequent petition to be a felony. The purpose of Manzy W. is for a juvenile court to exercise its discretion to determine whether a so-called wobbler offense is a misdemeanor or a felony. (Manzy W., supra, 14 Cal.4th at pp. 1205-1208.) That purpose was accomplished at the January 17, 2007 hearing.
The probation officer’s report included the recommendation that the assault adjudication from the third petition be found a felony. Marcus had notice of this recommendation prior to the disposition hearing. Marcus failed to object to the juvenile court’s felony finding concerning the third petition.
DISPOSITION
The judgment of the juvenile court is affirmed.