Opinion
H047114
02-03-2020
In re J.R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.R., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. JV33316)
I. INTRODUCTION
Defendant J.R. appeals from a juvenile court's Welfare and Institutions Code section 707 transfer order that was filed after this court had remanded the matter to the juvenile court pursuant to newly enacted Proposition 57 and People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303 (Lara). For reasons that we will explain, we conclude that we must dismiss the appeal.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
II. PROCEDURAL AND FACTUAL BACKGROUND
Defendant was 17 years old when he shot and killed Chanel Munoz. He was charged as an adult under former section 707, subdivision (d)(1), which "permitted the prosecutor to charge the case directly in adult court." (Lara, supra, 4 Cal.5th at p. 303.)
A jury convicted defendant of first degree murder (Pen. Code, § 187, subd. (a)) and found true an allegation that he personally and intentionally discharged a firearm and proximately caused the death of Munoz (Pen. Code, § 12022.53, subds. (b), (c), & (d)) and an allegation that he committed the murder for the benefit of or in association with a criminal street gang (Pen. Code, § 186.22, subd. (b)(5)). The trial court sentenced defendant to an indeterminate term of 25 years to life for the murder with a consecutive indeterminate term of 25 years to life for the Penal Code section 12022.53, subdivision (d) allegation.
Defendant appealed, and this court conditionally reversed the judgment and remanded the matter to the juvenile court with directions to conduct a transfer hearing pursuant to newly amended section 707, subdivision (a) and the California Supreme Court's decision in Lara. (People v. Ruelas (Mar. 14, 2018, H042776) [nonpub. opn.].)
This court also ordered a limited remand for the following reasons if the judgment was reinstated after the transfer hearing: (1) for the trial court to determine whether defendant had an adequate opportunity to make an accurate record of his circumstances and characteristics at the time of his offense, in anticipation of a future youth offender parole hearing, and (2) for the trial court to consider exercising its discretion to strike the section 12022.53, subdivision (d) enhancement. (People v. Ruelas (Mar. 14, 2018, H042776) [nonpub. opn.].)
The juvenile court held a transfer hearing on April 30, 2019. By written order filed May 23, 2019, the juvenile court determined that transfer to adult court was appropriate. In addition to detailing the reasons for the juvenile court's decision, the transfer order informed defendant that he "has the right to file a writ to the Court of Appeal 21 days [sic] after his arraignment in adult court, to have this decision reviewed by the Court of Appeal." Defendant was also provided with a separate notice that quoted California Rules of Court, rule 5.770(d)(3) and (g) and informed defendant that he was "entitled to free counsel and a free transcript for th[e] purpose [of seeking appellate review of the order]. Please tell your attorney in adult court that you wish to exercise this right after you are arraigned in adult court. After you are arraigned in adult court you have 20 days to file a Writ."
All further rule references are to the California Rules of Court.
Rule 5.770(d)(3) provides: "When the court rules on the request to transfer the child to the jurisdiction of the criminal court, the court must advise all parties present that appellate review of the order must be by petition for extraordinary writ. The advisement may be given orally or in writing when the court makes the ruling. The advisement must include the time for filing the petition for extraordinary writ as set forth in subdivision (g) of this rule."
Rule 5.770(g) provides: "An order granting or denying a motion to transfer jurisdiction of a child to the criminal court is not an appealable order. Appellate review of the order is by petition for extraordinary writ. Any petition for review of a judge's order to transfer jurisdiction of the child to the criminal court . . . must be filed no later than 20 days after the child's first arraignment on an accusatory pleading based on the allegations that led to the transfer of jurisdiction order."
On May 28, 2019, criminal proceedings were reinstated.
Defendant filed a notice of appeal on June 26, 2019. The notice stated that defendant appeals from "the denial [sic] of [the] judicial transfer hearing which occurred on May 28, 2019 [sic]." (Capitalization omitted.)
We appointed counsel to represent defendant in this court. Appointed counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436 that summarized the case and facts but raised no issues. The brief stated that "[t]his appeal is from a post-judgment order affecting [defendant's] substantial rights and is authorized by Penal Code section 1237, subdivision (b)."
We notified defendant of his right to submit written argument on his own behalf within 30 days. That period has elapsed and we have received no response from defendant.
Citing rule 5.770(g), we advised counsel that it appeared defendant's appeal was taken from a nonappealable order and requested him to show cause why the appeal should not be dismissed. Counsel responded that "the appealability of the juvenile transfer order . . . should be governed by Penal Code section 1237, subdivision (b), which authorizes an appeal from 'any order made after judgment, affecting the substantial rights of the party.' "
III. DISCUSSION
"[S]ince the question of appealability goes to our jurisdiction, we are dutybound to consider it on our own motion." (Olson v. Cory (1983) 35 Cal.3d 390, 398.) Having done so, we determine that we must dismiss the appeal because it is unauthorized by statute.
The right of appeal is statutory. "[A] judgment or order is not appealable unless expressly made so by statute." (People v. Chi Ko Wong (1976) 18 Cal.3d 698, 709 (Chi Ko Wong), overruled on another ground in People v. Green (1980) 27 Cal.3d 1, 33-34.) "The orders, judgments and decrees of a juvenile court which are appealable are restricted to those enumerated in section 800." (Chi Ko Wong, supra, at p. 709.)
Subdivision (a) of section 800 enumerates the judgments and orders that are appealable by the minor. "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." (§ 800, subd. (a).) In addition, "[a] ruling on a motion to suppress pursuant to Section 700.1 shall be reviewed on appeal even if the judgment is predicated upon an admission of the allegations of the petition." (§ 800, subd. (a).) Section 800 does not provide a minor with the right to appeal from a juvenile court's section 707 transfer decision.
Chi Ko Wong is instructive. The defendant in that case also committed his crimes as a juvenile. (Chi Ko Wong, supra, 18 Cal.3d at p. 706.) A section 602 petition was filed in juvenile court, but the court found defendant unfit for juvenile treatment and certified the matter to adult court. (Chi Ko Wong, supra, at pp. 706-707.) The defendant subsequently appealed from the judgment and contended among other claims that the juvenile court improperly concluded he was unfit. (Ibid.)
The California Supreme Court held that "the juvenile court order certifying defendant for criminal proceedings cannot be considered on appeal from an ensuing conviction and that defendant's proper recourse to challenge such certification was by collateral attack apart from the criminal prosecution." (Chi Ko Wong, supra, 18 Cal.3d at p. 707.) The court determined that the only juvenile court orders and judgments that are appealable are those enumerated under section 800. (Chi Ko Wong, supra, at p. 709.) "An order pursuant to section 707 finding a juvenile unfit for treatment through juvenile court facilities is outside the express provisions of section 800 and is thus not an appealable order." (Chi Ko Wong, supra, at p. 709; accord, People v. Garcia (1981) 115 Cal.App.3d 85, 112 ["A juvenile court certification hearing is an extrajudicial process insofar as subsequent criminal proceedings are concerned; thus, an order of certification may not be reviewed on appeal from a criminal judgment of conviction"], disapproved on other grounds in People v. Marsh (1984) 36 Cal.3d 134, 141.)
Defendant's counsel asserts that People v. Ramirez (2019) 35 Cal.App.5th 55 (Ramirez) supports his position that Penal Code section 1237, subdivision (b) authorizes this appeal. We conclude otherwise. Ramirez involved an appeal by the People pursuant to Penal Code section 1238, subdivision (a)(5). (Ramirez, supra, at pp. 59-60.) As the defendants were awaiting resentencing following a remand by the Court of Appeal, Proposition 57 was enacted. (Ramirez, supra, at p. 59.) Pursuant to Proposition 57 and Lara, the defendants filed a motion requesting the adult court to transfer their case to juvenile court. (Ramirez, supra, at p. 59.) The adult court did so over the prosecutor's objections, and the People sought review of the adult court's order via writ and direct appeal. (Id. at pp. 59-60.) The defendants filed a motion to dismiss the appeal contending that the adult court's order was nonappealable. (Id. at p. 60.) The Court of Appeal denied the motion, holding that the adult court's order was appealable pursuant to Penal Code section 1238, subdivision (a)(5) as a postjudgment order affecting the substantial rights of the People. (Ramirez, supra, at p. 60.)
Ramirez is inapposite. Here, defendant appeals not from an order of the adult court, as the People did in Ramirez, but from a juvenile court order. " '[T]he appealability of juvenile court orders is governed . . . by the Welfare and Institutions Code.' " (In re Almalik S. (1998) 68 Cal.App.4th 851, 854.) As section 800 does not authorize an appeal from a juvenile court's transfer order, appellate review must be by way of petition for extraordinary writ. (See Chi Ko Wong, supra, 18 Cal.3d at pp. 709-710, 714.)
For these reasons, we conclude that we are without jurisdiction to consider defendant's appeal from the juvenile court's May 23, 2019 section 707 transfer order.
IV. DISPOSITION
The appeal is dismissed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
DANNER, J.