Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JV36322
ELIA, J.On appeal from a third juvenile delinquency disposition, minor X.S., who had been declared and then continued as a ward of the juvenile court (Welf. & Inst. Code, § 602), now seeks to challenge four probation conditions that were imposed on him in the initial delinquency disposition. (See § 800.) We conclude that his arguments are not cognizable in this appeal.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
I. Procedural History
A. Background
A juvenile wardship petition ("A"), filed on September 28, 2009, alleged that, on or about September 6, 2009, minor obstructed or resisted an officer in the performance of his duties (Pen. Code, § 69) (count one). Minor was determined to be eligible for deferred entry of judgment. The court subsequently found minor unsuitable for deferred entry of judgment under section 790 but referred him for screening for Juvenile Drug Treatment Court (JTC).
A juvenile wardship petition ("B"), filed on December 21, 2009, alleged that, on or about December 10, 2009, minor committed vandalism causing $400 or more in damage (Pen. Code, § 594, subds. (a), (b)(1)) (count one) and, on or about November 16, 2009, minor committed battery (Pen. Code, §§ 242-243, subd. (a)) (count two).
Minor admitted violating Penal Code sections 69 (obstructing or resisting an officer) ("A") and 243, subdivision (a) (battery) (count two of "B"). The court declared the admitted violation of Penal Code section 69 to be a felony and dismissed the vandalism allegation (count one) in petition "B." Minor signed the Santa Clara County Superior Court, Juvenile Drug Treatment Court Disposition Agreement. The matter was continued for a disposition ordering JTC on both petitions.
In the February 18, 2010 disposition on petitions "A" and "B," the juvenile court declared minor a ward of the court and ordered his participation in the JTC program. The court placed minor under the supervision of a probation officer on specified terms and conditions. Those terms and conditions included the following: "... 12. That said minor not be on or adjacent to any school campus unless enrolled or with prior administrative approval;.... [¶] 17. That said minor not... remain in any place where another person possesses an object capable of being used in a dangerous or deadly manner and the minor knows that the person intends to use the object in such a manner;... [¶] 24. That said minor not knowingly possess, display, or wear any insignia, clothing, logos, emblems, badges, or buttons, or display any gang signs or gestures which he knows to be gang-related;... [¶] 26. That said minor not knowingly post, display, or transmit any symbols or information that the minor knows to be gang-related...."
On March 9, 2010, a third juvenile wardship petition was filed against minor ("C"). It alleged that, on or about March 7, 2010, minor unlawfully drove and took a vehicle (Veh. Code, § 10851, subd. (a)) (count one). A probation violation notice was also filed ("D"). It alleged the following violations: "1. On February 23, 2010, said minor tested positive for marijuana thereby failing to refrain from drug use; [¶] 2. On February 4, and 26, 2010, minor arrived at drug counseling under the influence of alcohol, thereby failing to refrain from alcohol use; [¶] 3. On February 26, 2010, the minor was dropped from counseling due to failing to abide by program rules, thereby failing to attend counseling; [¶] 4. On March 8, 2010, said minor was failed from the Electronic Monitoring Program for failing to abide by program rules including [the rules requiring him to] refrain from drug use, remain home, and abide by all laws."
Minor admitted violating Vehicle Code section 10851, subdivision (a), ("C") and violating probation ("D"). The jurisdictional orders included a provision that "[a]ll prior orders not in conflict remain in effect." In its April 15, 2010 disposition, the juvenile court continued minor as a ward of the court and reinstated him in the JTC program. It also ordered minor to serve 60 actual days on the Electronic Monitoring Program and returned him to the custody of his parents on continued probation under the supervision of the probation officer. In the "Disposition—Juvenile Deliquency" form, the court checked the provision "[a]ll prior orders not in conflict remain in effect." In the modified terms and conditions form, the court checked the provision "[a]ll prior orders not in conflict with today's orders to remain in full force and effect." The court also adopted the recommended order that "all previous Orders of the Court not inconsistent with today's Orders remain in full force and effect;..."
B. Current Delinquency Proceedings
On April 20, 2010, a fourth juvenile wardship petition was filed against minor ("E"). It alleged that minor committed second degree robbery (Pen. Code, §§ 211-212.5, subd. (c)) and, in committing the offense, minor personally used a deadly and dangerous weapon, specifically a knife, within the meaning of Penal Code section 12022, subdivision (b)(1).
A probation violation notice was also filed on April 20, 2010 ("F"). It alleged the following violations: "1. On April 20, 2010, the minor admitted using alcohol on April 17, 2010; [¶] 2. On April 17, 2010, the minor was failed from the Electronic Monitoring Program, after he left his home on April 16, 2010, to attend school, then failed to return home." Minor completed a written waiver form in which he admitted violating probation.
On May 2010, a contested jurisdiction hearing was held on petition "E." The court found the petition's allegations true beyond a reasonable doubt. Minor admitted in court that the probation violation allegations were true. The juvenile court ordered minor continued as a ward of the court. It committed him to the Santa Clara County Juvenile Rehabilitation Facilities—Enhanced Ranch Program for six to eight months and ordered him returned to parental custody under the supervision of the probation officer upon successful completion of the ranch program. The court checked two preprinted "prior orders" provisions. The first in the "Disposition—Juvenile Delinquency" form provided: "All prior orders not in conflict remain in effect." The second in a modified Terms and Conditions form provided: "All prior orders not in conflict with today's orders to remain in full force and effect." The court also adopted the recommended order that "all previous Orders of the Court not inconsistent with today's Orders remain in full force and effect;..."
Minor filed a notice of appeal, appealing from the dispositional orders.
II. Propriety of Challenges to Probation Conditions
Minor now seeks to challenge the four probation conditions mentioned above, which were imposed by the juvenile court in its February 2010 disposition even though he is now appealing from the May 2010 disposition. He argues that this court decision in In re Shaun R. (2010) 188 Cal.App.4th 1129 (Shaun R.) was wrongly decided and urges us to adopt Justice Mihara's reasoning as expressed in his concurring and dissenting opinion in Shaun R. We continue to adhere to the majority opinion in Shaun R., which we conclude was correctly decided.
In Shaun R., the majority concluded that a delinquency disposition's "prior orders" language did not "revive a previous order that has become final and is nonappealable" or "turn an otherwise nonappealable order into an appealable order." (Id. at p. 1133.) We rejected the "contention that by ordering that 'all previous Orders of the Court not inconsistent with today's Orders remain in full force and effect,' '[a]ll prior orders not in conflict remain in effect,' and '[a]ll prior orders not in conflict with today's orders to remain in full force and effect' (hereafter the 'all prior orders' provisions) in the 2009 Order, the court reimposed the conditions in the 2008 Orders that do not conflict with the 2009 Order and that those provisions are therefore appealable in this appeal from the 2009 Order." (Id. at p. 1137.) We observed "that in the context of dependency cases, courts have held that orders that have become final may not be reviewed in a later appeal from another appealable order. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1149–1150, 1156... ; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1250–1252....) And the same is true of criminal appeals. (People v. Ramirez, supra, 159 Cal.App.4th at p. 1421....)" (Id. at p. 1139.) We further concluded that "the 'all prior orders' provisions did not reimpose the court's previous orders" and merely "expressly instructed the minor that the court's prior orders that did not conflict with the 2009 Order 'remain[ed] in effect' or in 'full force and effect.' " (Id. at pp. 1139–1140.)
In urging us to adopt the reasoning expressed by Justice Mihara in his concurring and dissenting opinion in Shaun R., minor quotes the following passage from that opinion: "Disposition of a new section 602 petition 'effectively terminate[s]' the previous dispositional order on a prior sustained section 602 petition. (In re Ruben M. (1979) 96 Cal.App.3d 690, 699... (Ruben M.), disapproved on another point in Michael, at p. 554....) Because a subsequent dispositional order 'effectively terminate[s]' a prior dispositional order, the prior dispositional order does not ordinarily continue to be in force after the entry of the subsequent dispositional order." (Shaun R., supra, 188 Cal.App.4th at p. 1147 (conc. & dis. opn. of Mihara, J.).) Based on this premise, it is then asserted the "juvenile court's 'all prior orders' provision in its 2009 dispositional order" adopted and reimposed a probation condition imposed in a 2008 disposition and, consequently, that probation condition could be challenged on appeal from the 2009 disposition. (Ibid.)
With all due respect, we cannot subscribe to Justice Mihara's reasoning. In In re Ruben M. (1979) 96 Cal.App.3d 690 (Ruben M.), the case cited by Justice Mihara, the minor was committed to the California Youth Authority (CYA). (Id. at p. 694.) A completely different issue was before the appellate court in that 1979 case. As part of a prejudice analysis, the court stated: "Once a new petition was sustained and a disposition determined to place the minor in the California Youth Authority the prior camp-community program was effectively terminated." (Id. at p. 699.) This statement was taken out of context and it does not have the broad implication suggested by Justice Mihara. Obviously, an order committing a minor to a camp would be in direct conflict with, and impliedly superseded by, an order committing the minor to the CYA (now the DJJ). But Ruben does not concern the finality of dispositional orders in delinquency proceedings, the time limits on appealing such orders, or the effect of a provision in a new disposition specifying that prior orders not in conflict remain in effect. "Language used in any opinion is of course to be understood in the light of the facts and the issue then before the court, and an opinion is not authority for a proposition not therein considered. [Citations.]" (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2; see In re Chavez (2003) 30 Cal.4th 643, 656 ["As is well established, a case is authority only for a proposition actually considered and decided therein"].)
The question before the appellate court in that 1979 case was "whether when a new 602 petition is sustained the court may include all of the prior cases for which the minor is presently on probation in determining the maximum period of confinement without initiating separate proceedings under [former] section 777 Welfare and Institutions Code." (Ruben M., supra, 96 Cal.App.3dat p. 696.) The court held that "that when a new section 602 petition is filed no additional petition under [former] section 777 is required in order to include the prior cases in the (aggregate) maximum term of commitment." (Id. at p. 698.)
In Ruben M., supra, 96 Cal.App.3d 690, the appellate court reasoned that, even assuming a petition under former Welfare and Institutions Code section 777 was required, the "appellant received all the protections that a hearing under [former] section 777 would have accorded and no prejudicial error nor miscarriage of justice resulted. [Citation.]" (Id. at p. 698.) In its discussion of the lack of prejudice, the appellate court in Ruben M. stated: "Certainly one of the considerations in the disposition hearing in the new case is whether the prior camp-community program has proven effective or has failed to rehabilitate the minor. The probation officer must consider the type of commitment and the probable length thereof in making a realistic recommendation to the court. In making its determination as to what would be the proper disposition the court must consider the effectiveness of any prior programs and whether a new and different approach is called for. If a new disposition is to be made the court must evaluate it upon the basis of the place and length of commitment to determine its probable effectiveness. [¶] Once a new petition was sustained and a disposition determined to place the minor in the California Youth Authority the prior camp-community program was effectively terminated. At this point consolidation of the prior probation case with the new case appears to follow as a logical necessity." (Id. at pp. 698-699, italics added.) The court ultimately concluded that "that even if a hearing under [former] section 777 was had the results would have been the same." (Id. at p. 700.)
A judicial intent to "reimpose" or "reissue" a past order cannot be inferred from the ordinary meaning of the language used. In two of the "prior orders" provisions in this case, the preposition "with" is used in the sense of comparison of past and present orders. (See American Heritage College Dict. (3d ed.1997) p. 1549.) That comparison is implicit in the third provision. "Remain" is defined as "[t]o continue in the same state or condition." (American Heritage College Dict. (3d ed.1997) p. 1153.) The usual meaning of these words does not suggest that past orders are being newly imposed or issued and, thus, may be newly challenged on appeal from the most recent disposition containing the "prior orders" provision.
Further, construing "prior orders" language as reimposing or reissuing "prior orders" would seriously impact the finality of judicial determinations. The phrase "all prior orders" is not restricted to only prior orders imposing probation conditions and a disposition may contain a variety of orders. (See §§ 726, subd. (b), 726.5, subd. (a), 727, subd. (b), 730.5, 730.6, 731, subd. (a); see also Judicial Council form JV–665.) If "prior orders" language is construed to mean that a court is reimposing or reissuing "all prior orders not in conflict," new opportunities to appeal those prior orders "not in conflict" would be created each time a new order contains a "prior orders" provision.
"In general, a timely notice of appeal is ' "essential to appellate jurisdiction." [Citation.]... An untimely notice of appeal is "wholly ineffectual: The delay cannot be waived,... and the appellate court... must dismiss the appeal on motion of a party or on its own motion." [Citation.] The purpose of the requirement of a timely notice of appeal is, self-evidently, to further the finality of judgments by causing the defendant to take an appeal expeditiously or not at all.' [Citation.]" (In re Chavez, supra, 30 Cal.4th at p. 650.) The construction of "prior orders" provisions advocated by Justice Mihira in his separate Shaun R. opinion would undermine the principles of finality.
As indicated by the majority in Shaun R., it is well settled that " '[a]n appeal from the most recent order entered in a dependency matter may not challenge prior orders for which the statutory time for filing an appeal has passed.' [Citations.]" (In re Daniel K. (1998) 61 Cal.App.4th 661, 667.) Standard "prior orders" language is contained in many form dependency orders (see e.g. Judicial Council forms JV–320, JV–410, JV–412, JV–415, JV–425, JV–426, JV–430, JV–435, JV–440, JV–445, JV–446), yet we find no decision holding that "prior orders" language effectively reimposes past orders "not inconsistent" with the current order and makes them subject to a new challenge on appeal from the current order.
In this case, the February 2010 disposition imposing probation conditions apparently went unchallenged and became final. The April 2010 disposition apparently went unchallenged and became final as well. There is no language in the May 2010 disposition expressly reimposing or reissuing the probation conditions imposed by the February 2010 disposition. As the majority in Shaun R. pointed out, "if the juvenile court wishes to reimpose or incorporate a condition or term from a previous disposition order that has become final into a new disposition order, the court may do so by express reimposition or incorporation." (Shaun R., supra, 188 Cal.App.4th at p. 1141.)
Although a minor declared and continued as a ward of the juvenile court is involved in successive proceedings, there is a unitary wardship. This court must presume that a juvenile court is aware of and considers prior orders when it makes a new order containing a general "prior orders" provision unless something in the record demonstrates otherwise. (See Evid. Code, § 664 ["It is presumed that official duty has been regularly performed"].) Absent any indication of contrary judicial intent in the record, general "prior orders" language should be understood as simply clarifying that a new disposition order does not necessarily supersede all prior orders by implication.
DISPOSITION
The May 2010 dispositional orders are affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.