Opinion
A156838
03-25-2020
In re Y.R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. Y.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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J17-00988)
The minor, Y.R., previously appealed a dispositional order entered in this case after the juvenile court sustained allegations he unlawfully resisted an executive officer (Pen. Code, § 69) and resisted or obstructed a peace officer (id., § 148, subd. (a)(1)) when he became involved in a late-night brawl at a bar-and-grill. (See In re Y.R. (Aug. 3, 2018, A153215.) In the prior appeal, we remanded the case with instructions to the juvenile court to do two things: one, to strike a probation condition prohibiting the minor from being anywhere in the city where the charged incident took place (American Canyon) but with leave to narrow the stay-away condition to the place of the minor's offense, and second, to comply with the mandatory requirement that it declare whether the minor's wobbler offense (the Penal Code section 69 count) is a felony or a misdemeanor (see Welf. & Inst. Code, § 702; In re Manzy W. (1997) 14 Cal.4th 1199).
On remand, the juvenile court held a hearing, on November 7, 2018, at which it modified the challenged probation condition in accordance with our prior opinion and also declared the sustained offense to be a felony. More than four months later, on March 20, 2019, the juvenile court held another hearing at which it denied a motion by the minor to terminate probation successfully and seal his juvenile record, and instead ordered that wardship and probation be terminated unsuccessfully. The minor then, on March 25, 2019, initiated this appeal from the order terminating probation unsuccessfully.
On remand, the juvenile court misconstrued our decision as invalidating the probation condition on the ground that it was "too vague or too general." We invalidated it on substantive grounds, because it failed two out of three factors under People v. Lent (1975) 15 Cal.3d 481. It was not reasonably related to the minor's offense and it also was not reasonably related to his risk of future criminality.
The minor's sole contention on appeal is that at the November 7, 2018 hearing on remand, the juvenile court failed to exercise any discretion to decide whether the offense is a felony or a misdemeanor. The Agency concedes this error. The substance of this conceded error is that while the juvenile court expressly declared the offense to be a felony, it did so based upon the mistaken belief that another juvenile court judge (in Napa County, where the offense took place) had already classified the offense as a felony, and therefore the juvenile court did not exercise any discretion on remand to determine that issue for itself.
The Agency argues, though, that we must dismiss this appeal as untimely because the minor did not file a notice of appeal within 60 days of the November 7, 2018 order declaring his offense a felony. The Agency rests its position principally on a recent decision by the Sixth District that was then under review by our Supreme Court, which dismissed an appeal in similar circumstances. (See In re G.C. (2018) 27 Cal.App.5th 110, review granted Dec. 19, 2018, S252057.) The Agency also contends the minor is not without a remedy, however, and urges that the minor may seek relief for the error by filing a motion in the juvenile court under Welfare and Institutions Code section 775.
In his reply brief, the minor argues the appeal is timely. He urges us not to follow the Sixth District's decision in In re G.C., which he says is distinguishable in any event, and instead contends that under In re Ramon M. (2009) 178 Cal.App.4th 665, the error amounts to an unauthorized sentence that can be corrected at any time, even if not timely appealed within 60 days of the dispositional order that omitted to make the required finding. (See id. at p. 675.)
The only distinction the minor asserts is that the proceedings in In re G.C. involved multiple petitions whereas this involved only one, which is a distinction that is not persuasive.
It is unnecessary to examine the parties' contentions in any depth. After the close of briefing, the Supreme Court issued its opinion in In re G.C., fully endorsing the view of our colleagues in the Sixth District, affirming the dismissal of that appeal as untimely and holding that a minor may not challenge a juvenile court's neglect of its mandatory duty under Welfare and Institutions Code section 702 to specify whether a wobbler offense is a felony or misdemeanor in an appeal from a later dispositional order after the time to appeal the earlier disposition order has expired. (In re G.C. (Feb. 20, 2020, S252057) 458 P.3d 70 .) The court disapproved In re Ramon M. and expressly rejected the "unauthorized sentence" theory of appealability endorsed by that case and advanced here by the minor. (See 2020 WL 827866, at pp. **6-8.) The court noted "the general rule that a party 'may not challenge [a] dispositional order through an appeal from [a later] order,' " and declared that rule to be "dispositive here." (Id. at p. *5.) We asked for supplemental briefing concerning the Supreme Court's opinion and, having reviewed the parties' supplemental briefing, we conclude the appeal must be dismissed.
The minor's "unauthorized sentence" theory also rests on a false premise. Unlike in In re Ramon M., the juvenile court did declare the offense to be a felony at the November 2018 hearing. The error of which the minor complains is not that the juvenile court failed to make the declaration required by Welfare and Institutions Code section 702, but that the declaration itself was erroneous because the court failed to exercise any discretion before classifying the offense as a felony. It was the error at that hearing the minor challenges in this appeal, not any later error. --------
DISPOSITION
The appeal is dismissed.
/s/_________
STEWART, J. We concur. /s/_________
RICHMAN, Acting P.J. /s/_________
MILLER, J.