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In re M.C.

California Court of Appeals
Apr 2, 2009
A122598 (Cal. Ct. App. Apr. 2, 2009)

Opinion


In re M.C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. M.C., Defendant and Appellant. A122598 California Court of Appeal, First District, Second Division April 2, 2009

         NOT TO BE PUBLISHED

         City and County of San Francisco Super. Ct. No. JW086342

          Lambden, J.

         A juvenile wardship petition pursuant to Welfare and Institutions Code section 602 was filed, alleging that defendant had sold cocaine (Health & Saf. Code, § 11352, subd. (a)) and possessed cocaine for sale (Health & Saf. Code, § 11351.5). Defendant admitted to being an accessory after the fact (Pen. Code, § 32) as a felony, and the remaining charges were dismissed. The lower court declared defendant a ward of the court and committed him to probation for out of home placement.

All further unspecified code sections refer to the Welfare and Institutions Code.

         Defendant was an undocumented immigrant and the probation department filed a section 778 petition requesting the juvenile court to vacate the out of home placement order and to order defendant committed to 30 days at the juvenile justice center. The court granted the section 778 petition and committed defendant to juvenile hall for 30 days with credit for time served of 37 days. The court ordered the section 602 petition dismissed and terminated jurisdiction. The United States Immigration and Customs Enforcement (ICE) was notified of defendant’s immigration status, and defendant was detained for 48 hours to be picked up by ICE.

         On appeal, defendant does not object to the lower court’s finding of jurisdiction, but challenges the court’s grant of the probation department’s section 778 petition. Since defendant is only contesting the disposition and the court has dismissed the section 602 petition and terminated its jurisdiction over defendant, defendant’s appeal is moot. We therefore dismiss the appeal.

         BACKGROUND

         In May 2007, just before his mother died, defendant came on his own to the United States from Honduras. His father had already died.

         The probation report stated that, on May 7, 2008, an officer approached defendant and asked him for a “twenty,” the street term for $20.00 worth of crack cocaine. Defendant gave the officer suspected crack cocaine and the officer gave him $20.00 in marked money. The officer purchasing the cocaine signaled for other officers to arrest defendant; the officers took defendant into custody.

         On May 9, 2008, a juvenile wardship petition pursuant to section 602 was filed, alleging that defendant had sold cocaine (Health & Saf. Code, § 11352, subd. (a)) and possessed cocaine for sale (Health & Saf. Code, § 11351.5). Defendant admitted to being an accessory after the fact (Pen. Code, § 32) as a felony, and the remaining charges were dismissed. The lower court declared defendant a ward of the court and committed him to probation for out of home placement. According to the placement report, defendant was undocumented. He had been accepted to a placement but had not been placed there because the probation department had to “notify federal officials of the minor’s presence in [juvenile hall].” The report further noted that, if the federal officials “seek to take custody, custody will transfer to the federal officials at the conclusion of the minor’s [juvenile hall] commitment.”

         In July 2008, the mayor of the City and County of San Francisco announced that the city was changing its policy of not reporting undocumented immigrant youth and would begin reporting undocumented minors accused of drug offenses to ICE. (See S.F. Mayor Shifts Policy on Illegal Offenders (July 3, 2008)San Francisco Chronicle (<http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/07/03/MNU911IPGK.DTL> [accessed March 24, 2009]).) On July 17, 2008, the probation officer filed a petition under section 778, requesting the court to vacate the commitment of defendant to out of home placement and to commit him to a period of 30 days within the juvenile justice center. The petition further alleged that probation would notify ICE officials that defendant was in custody. The change of circumstance alleged in support of the petition was that “federal law makes it a crime for any person in knowing or reckless disregard of the fact that an alien is illegally in the [United States] to transport or move the alien within the [United States] in the furtherance of such violation . . . .”

         The court held a hearing on the section 778 petition. On July 24, 2008, the court found that the probation officer had not taken appropriate actions to place defendant, but the delay was reasonable and the delay had not created an undue hardship. The court noted that the probation department did not believe it could place defendant based on his undocumented status.

         On August 20, 2008, at the continued hearing on the section 778 petition, the court granted the probation department’s section 778 motion. It committed defendant to juvenile hall for 30 days with credit for time served of 37 days. The court ordered the section 602 petition dismissed and terminated jurisdiction. ICE was notified of defendant’s immigration status, and defendant was detained for 48 hours to be picked up by ICE.

         Defendant filed a timely notice of appeal from the order granting the probation department’s section 778 petition.

         DISCUSSION

         Defendant does not challenge the lower court’s jurisdiction finding. Rather, his appeal contests the court’s granting of the probation department’s section 778 petition. Defendant contends that the juvenile court erred in granting the section 778 petition because a petition under this statute cannot be used when the modification is for a more restrictive level of custody and he asserts that commitment to juvenile hall is more restrictive than out of home placement. He also argues that substantial evidence does not supports the granting of the section 778 petition because this statute permits modification only “[i]f it appears that the best interests of the child may be promoted by the proposed change of order or termination of jurisdiction,” and no such showing was established. Finally, defendant maintains that his status as an undocumented immigrant did not, as alleged in probation’s modification petition, render the out of home placement order illegal.

Section 778 provides: “Any parent or other person having an interest in a child who is a ward of the juvenile court or the child himself through a properly appointed guardian may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a ward of the juvenile court for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition shall be verified and, if made by a person other than the child, shall state the petitioner’s relationship to or interest in the child and shall set forth in concise language any change of circumstance or new evidence which are alleged to require such change of order or termination of jurisdiction.

Defendant argues that a petition pursuant to section 777, subdivision (a) must be filed when a party requests a more restrictive placement and a petition under this statute must give the minor notice that a more restrictive placement is sought. (See In re Ronald W. (1985) 175 Cal.App.3d 199, 203-204.)

         The People respond that we should dismiss defendant’s appeal because he is appealing from a nonappealable order and the appeal is moot. We agree that the appeal is moot and we therefore dismiss the appeal.

         Defendant acknowledges that his contentions on appeal are moot because the court terminated both his wardship and its jurisdiction over him. Defendant maintains, however, that we should decide the issues presented by this appeal because the issues are of great public import. (See, e.g., In re Sodersten (2007) 146 Cal.App.4th 1163, 1217-1218.) He asserts that the section 778 petition arises from a policy reversal by the probation department to begin reporting undocumented immigrant youth and this change in policy is an issue of great public import.

         “ ‘It is settled that “the duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal. [Citations.]” [Citations.]’ ” (In re Sodersten, supra, 146 Cal.App.4th at p. 1217, citing Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 132.)

         Here, the court has terminated both the wardship and its jurisdiction over defendant. Thus a decision on the validity of the modification of defendant’s disposition from out of home placement to a commitment to juvenile hall (with credit for time served) will have no effect on defendant. Defendant has served his time and is no longer a ward of the juvenile court. (See, e.g., In re Randy R. (1977) 67 Cal.App.3d 41, 44 [error in disposition rendered moot by minor’s release and termination of jurisdiction over him].) If defendant were objecting to the jurisdiction findings that made him a ward of the juvenile court, his appeal would not be moot as defendant would have the right to clear his name of a criminal charge. (See In re Dana J. (1972) 26 Cal.App.3d 768, 771 [an appeal after the termination of dependency jurisdiction is not moot as the juvenile has “the opportunity to rid himself of the ‘stigma of criminality’ [citation] and to ‘clear his name’ of a criminal charge”].) However, in the present case defendant has mounted no challenge to the finding of jurisdiction based on his admission that he committed the crime of being an accessory after the fact (Pen. Code, § 32). Accordingly, as defendant concedes, his appeal is moot.

         We do retain discretion to consider a moot appeal when the case involves an issue of general public concern. (See, e.g., In re Sodersten, supra, 146 Cal.App.4th at pp. 1217-1218.) “ ‘Review of a moot issue is appropriate where it is “of great public import and transcend[s] the concerns of these particular parties.” [Citation.] Even when moot, a novel question of continuing public interest is often deserving of consideration by an appellate court. [Citations.]’ ” (Id. at p. 1218.)

         Defendant asserts that we should decide this appeal because the change in policy by the probation department to report undocumented minors to ICE is an issue of great public import. In this appeal, however, defendant is not challenging the validity of this change of policy. Moreover, this appeal would not be a proper place to contest this policy. Indeed, the issue on this appeal––whether a change in the policy of reporting undocumented immigrant youth to ICE supports the granting of a section 778 petition––affects a very small segment of the population. The only people potentially affected by defendant’s appeal are the small number of undocumented minors whose dispositions were changed immediately after the policy change in July 2008. We therefore conclude that defendant’s appeal does not raise an issue of general public concern and does not address an issue of concern to a significant portion of people. Accordingly, we dismiss defendant’s appeal as being moot.

         DISPOSITION

         The appeal is hereby dismissed as moot.

          We concur: Kline, P.J., Richman, J.

“If it appears that the best interests of the child may be promoted by the proposed change of order or termination of jurisdiction, the court shall order that a hearing be held and shall give prior notice, or cause prior notice to be given, to such persons and by such means as prescribed by Sections 776 and 779, and, in such instances as the means of giving notice is not prescribed by such sections, then by such means as the court prescribes.”


Summaries of

In re M.C.

California Court of Appeals
Apr 2, 2009
A122598 (Cal. Ct. App. Apr. 2, 2009)
Case details for

In re M.C.

Case Details

Full title:In re M.C., a Person Coming Under the Juvenile Court Law. v. M.C.…

Court:California Court of Appeals

Date published: Apr 2, 2009

Citations

A122598 (Cal. Ct. App. Apr. 2, 2009)