Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. JCM214952, Joe O. Littlejohn, Judge. (Retired Judge of the Superior Court of San Diego County assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
AARON, J.
I.
INTRODUCTION
At a May 2, 2007 disposition hearing in a wardship proceeding pursuant to Welfare and Institutions Code section 602, the juvenile court placed Salvador D.C. (Salvador) on probation and detained him on 30 days of home supervision with his mother. Salvador filed a notice of appeal from the May 2 judgment. On appeal, he claims that the juvenile court erred in setting the maximum term of confinement at the May 2 hearing. A specification of the maximum term of confinement is required whenever "the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602." (§ 726, subd. (c).) Salvador contends that Cunningham v. California (2007) 549 U.S. 270, and the constitutional right to equal protection require that a juvenile court use the middle term, rather than the upper term, in setting a maximum term of confinement.
Unless otherwise specified, all subsequent statutory references are to the Welfare and Institutions Code.
We do not reach the merits of Salvador's contention. Rather, we conclude that the maximum term of confinement in the May 2 judgment is void because the court did not, at that time, remove Salvador from the custody of his parent. (In re Ali A. (2006) 139 Cal.App.4th 569, 573 (Ali A.) [juvenile court's setting of maximum term of confinement has "no legal effect" where minor is placed in physical custody of parents subject to supervision on probation].) We strike the maximum term of confinement from the May 2 judgment. As so modified, we affirm the judgment.
We note that the courts in In re Christian G. (2007) 153 Cal.App.4th 708, 714 and In re Alex U. (2007) 158 Cal.App.4th 259, 264 have rejected claims similar to Salvador's.
We requested and received supplemental briefing from the parties addressing the alternative ground on which we decide Salvador's appeal.
II.
FACTUAL AND PROCEDURAL BACKGROUND
On March 28, 2007, the People filed a petition pursuant to section 602 alleging that Salvador committed a misdemeanor battery on school grounds (Pen. Code, § 243.2, subd. (a)(1)) (count 1), inflicted injury on the parent of his child (Pen. Code, § 273.5, subd. (a)) (count 2), and committed a misdemeanor battery on a person with whom he had a dating relationship (Pen. Code, § 243, subd. (e)(1)) (count 3). On April 18, after an adjudication hearing, the juvenile court sustained the petition as to all three counts.
At the May 2 disposition hearing, the juvenile court declared Salvador a ward of the court, placed him on probation, committed him to a 90-day Short Term Offender Program (STOP), stayed the commitment, and detained him on 30 days of home supervision with his mother. At the May 2 hearing, the court specified that Salvador could not be held in physical confinement for more than four years four months―the maximum term of imprisonment that could be imposed upon an adult convicted of the offenses at issue.
On May 9, the probation officer filed a report indicating that Salvador had violated the terms of his probation. That same day, the juvenile court held a hearing at which Salvador admitted having violated probation. The court concluded that "continuance in the home is contrary to the [Salvador's] welfare," took physical custody of Salvador from his parent pursuant to section 726, subdivision (a), and detained him in juvenile hall. The court again set the maximum term of confinement at four years and four months.
On May 21, Salvador filed an appeal from the May 2 judgment.
On May 23, at a second disposition hearing, the juvenile court lifted the stay on the STOP commitment and stated that all prior orders remained in effect.
III.
DISCUSSION
A. The juvenile court's May 2 setting of the maximum term of confinement has no legal effect
The People claim that the maximum term of confinement in the May 2 judgment has no legal effect. Salvador contends that the juvenile court was required to set a maximum term of confinement at the May 2 hearing and that the term the court set on that date has legal force and effect. The question is one of law, which we review de novo. (E.g. People v. Butler (2003) 31 Cal.4th 1119, 1127.)
1. Governing law
Section 726, subdivision (c) provides in relevant part:
"(c) If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court.
[¶] . . . [¶]
"'Physical confinement' means placement in a juvenile hall, ranch, camp, forestry camp or secure juvenile home pursuant to Section 730, or in any institution operated by the Youth Authority." (Italics added.)
In Ali A., supra, 139 Cal.App.4th 569, the juvenile court sustained a charge of attempted robbery against the minor and held a juvenile wardship disposition hearing. (Id. at p. 571.) At the hearing, the court committed the minor to the custody of his parents, subject to probation and set the minor's maximum term of confinement. (Id. at pp. 571-572.) On appeal, the Ali A. court considered whether the juvenile court had been required under such circumstances to set a maximum term of confinement, pursuant to section 726, subdivision (c). (Ali A., supra, 139 Cal.App.4th at p. 573.) Relying on the portion of section 726, subdivision (c) italicized above, the Ali A. court concluded that because the court had not removed the minor from the physical custody of his parents at the disposition hearing, the juvenile court was not required to set the maximum term of confinement at that time. (Ali A., supra, 139 Cal.App.4th at p. 573.)
The Ali A. court also noted that the juvenile court was not required to set a maximum term of confinement pursuant to section 731, subdivision (b), which applies when the court commits a ward to the Division of Juvenile Facilities. (§ 731, subd. (b).)
The court summarized its holding as follows:
"The question in this juvenile wardship proceeding is whether the juvenile court has discretion to set a maximum term of physical confinement when the court commits the minor to the custody of his parents subject to probationary supervision, rather than to the custody of the California Department of Corrections and Rehabilitation, Division of Juvenile Facilities (formerly, the Department of the Youth Authority) (hereafter, the CYA). The answer to that question is 'no.' When a juvenile ward is allowed to remain in his parents' custody, there is no physical confinement and therefore no need to set a maximum term of confinement. Consequently, the maximum term of confinement included in the dispositional order here is of no legal effect." (Ali A., supra, 139 Cal.App.4th 569at p. 571.)
The Ali A. court further concluded that neither reversal nor remand was required. The court reasoned:
"In the event the minor violates the terms of his probation, a further noticed hearing will have to be held before he is subjected to a modified disposition removing him from his parents' custody. [Citation.] If that happens, then at that time the juvenile court will have to comply with section 726(c) and, if applicable, section 731(b) in setting and/or declaring the maximum term of physical confinement. In the meantime, the maximum term of confinement contained in the current dispositional order is of no legal effect. Because the minor is not prejudiced by the presence of this term, there is no basis for reversal or remand in this case." (Ali A., supra, 139 Cal.App.4th at pp. 573-574, fn. omitted.)
The Ali A. court noted that the minor requested that the Court of Appeal strike the void maximum confinement term on the ground that a later juvenile court might not believe it was required to impose the maximum term of confinement, given the existence of the previously erroneously imposed term. (Ali A., supra, 139 Cal.App.4th at p. 574, fn. 2.) The Ali A. court declined to order the term stricken, reasoning, "We trust that will not occur, as this opinion will be part of the file in this proceeding, and we have made it clear that the maximum term of confinement in the present order is of no legal effect." (Ibid.)
2. Application
The juvenile court did not remove Salvador from the physical custody of his parents at the May 2 hearing, but rather, placed him on home supervision with his mother. Thus, pursuant to Ali A., the maximum term of confinement stated in the May 2 order is of "no legal effect." (Ali A., supra, 139 Cal.App.4th at p. 571.)
Salvador acknowledges that, "Based [on] Ali A. and on the plain words in section 726, subdivision (c), it appears that since Salvador was not removed from his mother's custody on May 2, the juvenile court's declaration of the maximum term of confinement would have no legal effect." However, Salvador argues that the court was required to set the maximum term of confinement at the May 2 hearing because the court imposed, but stayed, the 90-day STOP commitment, as a condition of probation.
The court's May 2 judgment lists the STOP commitment as a condition of probation and specifically states that the STOP commitment is "STAYED PENDING FURTHER HEARING." Thus, as in Ali A., the May 2 judgment made clear that there would be further court proceedings before Salvador would be removed from the custody of his parent. In fact, the juvenile court held another hearing on May 9, and removed Salvador from his parent's custody at that time. Consistent with Ali A., the juvenile court complied with section 726, subdivision (c) and set the maximum term of confinement at the May 9 hearing. (Ali A., supra, 139 Cal.App.4th at p. 573-574.) (See part III. C., post.) We reject Salvador's argument that the "where a term of physical confinement is imposed, albeit stayed, the rationale and need to set a maximum term of confinement still exists." Rather, it is only when "the minor is removed from the physical custody of his or her parent or guardian," that the court should set the maximum term of confinement pursuant to section 726, subdivision (c).
We agree with the Ali A. court's statement that neither remand nor reversal is required where a court has unnecessarily set a maximum term of confinement. However, in our view, the minor is entitled to an accurate dispositional order. In addition, in view of the possibility for prejudice stemming from a void maximum term of confinement remaining in the May 2 judgment, we agree with the People that "'[t]he better approach would be to make matters clear by striking the maximum term of confinement now, so there is no potential for error in the future.'" Accordingly, where a juvenile court unnecessarily sets a maximum term of confinement, we conclude that the appropriate remedy is for the appellate court to strike the void maximum term of confinement. We therefore order the maximum term of confinement stricken from the May 2 judgment.
In his supplemental brief, Salvador argues that if this court determines that the May 2 maximum term of confinement term is void, this court should strike the term so as to eliminate the possibility of error stemming from the existence of the void term in the record.
C. This court lacks appellate jurisdiction to consider the May 9 or May 23 orders
At the May 9 hearing, the court again set the maximum term of confinement and removed Salvador from the physical custody of his parent. At the May 23 hearing, the court lifted the stay of the 90-day STOP commitment and ordered Salvador committed to that program. Salvador did not file an appeal from either order. This court thus lacks appellate jurisdiction to consider any claim related to these orders.
1. Governing law
a. Appealability in wardship proceedings
Appeals by a minor subject to a juvenile wardship proceeding are governed by section 800. Section 800 provides in relevant part:
"(a) 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."
"'[T]he "judgment" in a juvenile court proceeding is the order made after the trial court has found facts establishing juvenile court jurisdiction and has conducted a hearing into the proper disposition to be made.' [Citation.]" (In re Henry S. (2006) 140 Cal.App.4th 248, 255.) It is well established that a dispositional order/judgment in a wardship proceeding under section 602 is appealable. (E.g., In re Josh W. (1997) 55 Cal.App.4th 1, 3-4.) Similarly, the minor may appeal from postdispositional orders in such proceedings, pursuant to the plain language of section 800, subdivision (a).
b. An appellate court lacks jurisdiction to review appealable orders from which no appeal is taken
In Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 45-46 (Norman I. Krug Real Estate Investments, Inc.), the court considered whether it had appellate jurisdiction to review an attorney fee award filed on May 9, 1998, where the appellant's May 26 notice of appeal expressly limited itself to a judgment filed on May 5. The Norman I. Krug Real Estate Investments, Inc. court noted, "'If a judgment or order is appealable, an aggrieved party must file a timely appeal or forever lose the opportunity to obtain appellate review.'" (Id. at p. 46.) The court concluded that the May 9 order was appealable, and that no appeal had been taken from the May 9 order. (Ibid.) The court further noted that it could not construe the May 26 notice of appeal to apply to the May 9 order, reasoning:
"The notice, filed on May 26, 1988, states: 'NOTICE IS HEREBY GIVEN that defendants ROMAN PRASZKER AND WEST & PRASZKER REALTORS, INC. appeal from the judgment filed May 5, 1988, a copy of which is attached as Exhibit "A."' (Italics added.) Only a copy of the May 5 judgment was appended. Thus, despite Praszker's knowledge of the May 9 order allowing litigation costs and attorney's fees, the notice of appeal unambiguously designates only the May 5 judgment." (Id. at p. 46.)
The Norman I. Krug Real Estate Investments, Inc. court ultimately concluded, "Because Praszker's notice of appeal totally omits any reference to the appealable order granting litigation costs and attorney's fees, this court has no jurisdiction to review the propriety of that award." (Norman I. Krug Real Estate Investments, Inc., supra, 220 Cal.App.3d at p. 47.)
Similarly, in Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239 (Sole Energy Co.), the court noted, "'"[W]here several judgments and/or orders occurring close in time are separately appealable (e.g., judgment and order awarding attorney fees), each appealable judgment and order must be expressly specified―in either a single notice of appeal or multiple notices of appeal―in order to be reviewable on appeal."' [Citations.]" The Sole Energy Co. court considered whether it had appellate jurisdiction to review an order entered on January 17, 2003, granting a new trial where the appellant's February 19 notice of appeal referenced only the January 30, 2003 judgment. (Id. at p. 239.) The Sole Energy Co. court concluded that it could not construe the notice of appeal as reaching the independently appealable new trial order: "Although notices of appeal must be liberally construed [citation], we cannot liberally construe the February 19, 2003 notice of appeal to include the new trial order, which was directly and independently appealable." (Ibid.) The court concluded, "Because Plaintiffs did not appeal from the order granting Petrominerals a new trial, we have no jurisdiction to review that order." (Id. at p. 240.)
2. This court lacks jurisdiction to consider the juvenile court's May 9 order setting a maximum term of confinement or the May 23 order lifting the stay of the STOP commitment because Salvador has not appealed from those orders
Salvador's May 21, 2007 notice of appeal states, "[M]inor appeals from the judgment of the court entered 5-2-2007." The May 2 dispositional order was an appealable judgment. (In re Henry S., supra, 140 Cal.App.4th at p. 255; § 800, subd. (a).) The May 9 and May 23 orders were also independently appealable postjudgment orders. (§ 800, subd. (a).). However, Salvador's May 21 notice of appeal makes no mention of the May 9 order at which the court set the maximum term of confinement, or the court's May 23 order lifting the stay on the STOP commitment. Therefore, this court may not construe the May 21 notice of appeal, which expressly references only the May 2 judgment, as extending to either of the other appealable orders. (Norman I. Krug Real Estate Investments, Inc., supra, 220 Cal.App.3d at p. 47; Sole Energy Co., supra, 128 Cal.App.4th at p. 239; see also Cal. Rules of Court, rule 8.400 (c)(2) ["The notice of appeal must be liberally construed, and is sufficient if it identifies the particular judgment or order being appealed, " italics added].)
The notice of appeal is dated May 15 and file stamped May 21.
Accordingly, this court lacks appellate jurisdiction to consider the May 9 or May 23 orders. (See, e.g., Norman I. Krug Real Estate Investments, Inc., supra, 220 Cal.App.3d at p. 46 [appellate courts lack jurisdiction to review an appealable postjudgment order from which a party has not filed an appeal].)
IV.
DISPOSITION
The maximum term of confinement is stricken from the May 2 judgment. As so modified, the judgment is affirmed.
WE CONCUR: McDONALD, Acting P. J., IRION, J.