Opinion
C080433
12-27-2016
In re B.T., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. B.T., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JV130715)
B.T. seeks to appeal the juvenile court's order denying his motion to modify a dispositional order committing him to the Division of Juvenile Facilities (DJF) after he admitted violating his probation. B.T. did not appeal the dispositional order itself. We conclude the denial of B.T.'s motion to modify under Welfare and Institutions Code sections 775 and 779 is nonappealable because the motion was based solely on grounds that could have been raised in a timely appeal from the commitment order. Accordingly, we shall dismiss this appeal.
DJF, which was formerly known as the California Youth Authority, is part of the Division of Juvenile Justice (DJJ), which in turn is part of the Department of Corrections and Rehabilitation. (In re Jose T. (2010) 191 Cal.App.4th 1142, 1145, fn. 1.)
Undesignated statutory references are to the Welfare and Institutions Code.
I. BACKGROUND
A. In re C.H. and Statutory Background
In recent years, the authority of a juvenile court to send a minor to DJF has been subject to both judicial interpretation and legislative clarification. In 2011, our Supreme Court, in In re C.H. (2011) 53 Cal.4th 94 (C.H.) held that the Welfare and Institutions Code "limit[s] the class of wards who may be committed to the DJF to those wards who (1) have committed an offense described in section 707[, subdivision ](b) and (2) whose most recent offense alleged in any petition and admitted or found to be true by the court is listed either in section 707[, subdivision ](b) or Penal Code section 290.008[, subdivision ](c)." (C.H., supra, at p. 102, italics added.) C.H. had been committed to DJF based on a violation of Penal Code section 288, subdivision (a), which is listed in Penal Code section 290.008, subdivision (c), but not section 707, subdivision (b). (C.H., supra, at p. 99.) The Supreme Court held the juvenile court had no authority to commit C.H. to DJF. (Id. at p. 108.)
In response to C.H., the Legislature passed urgency legislation effective February 29, 2012. (Stats. 2012, ch. 7, § 4.) Assembly Bill No. 324 amended section 731, subdivision (a)(4) to authorize a ward's commitment to DJF "if the ward has committed an offense described in subdivision (b) of Section 707 or subdivision (c) of Section 290.008 of the Penal Code, and is not otherwise ineligible for commitment to the division under Section 733." (Stats. 2012, ch. 7, § 1, italics added.) Assembly Bill No. 324 also added section 1752.16, which provides that DJF "may enter into contracts with any county of this state for [DJF] to furnish housing to a ward who was in the custody of [DJF] on December 12, 2011, and whose commitment was recalled based on" our Supreme Court's decision in C.H. (Stats. 2012, ch. 7, § 3.) B. Procedural Background
In December 2009, a petition was filed pursuant to section 602 against B.T., who was then 14 years old, alleging two counts of committing a lewd and lascivious act upon a child under the age of 14 years within the meaning of Penal Code section 288, subdivision (a). B.T. admitted the first count, and the second count was dismissed in the interest of justice. In August 2010, he was adjudged a ward of the juvenile court and committed to the care and custody of his guardian, C.B., under the supervision of a probation officer. Among other things, the court ordered B.T. to complete 12 days in the Juvenile Work Project program, and to participate in a sex offender treatment program.
B.T. violated probation several times over the next year, culminating in the juvenile court committing him to DJF for a term of five years. On April 11, 2012, after our Supreme Court issued its decision in C.H., the juvenile court recalled B.T.'s commitment. The court then committed B.T. to the Sacramento County Youth Detention Facility for four years, but authorized him to be housed at DJJ under section 1752.16.
On December 10, 2014, B.T. admitted violating his probation by failing to participate in a sex offender treatment program. On February 20, 2015, the court held a contested disposition hearing and committed B.T. to DJF for a term of eight years with 1,539 days of credit. The court also ordered B.T. to register as a sex offender under Penal Code section 290.
On April 2, 2015, DJJ filed a letter with the court requesting corrections to the February 20, 2015, order. On April 7, 2015, the court issued an amended dispositional order with the notation it was "nunc pro tunc" to the time of the February 20, 2015, order.
On April 20, 2015, DJJ filed a letter that was dated five days earlier and explained DJJ could not accept B.T.'s commitment because it was of the opinion the commitment was prohibited under C.H.
On June 3, 2015, noting this letter and agreeing with its analysis, B.T. filed a motion to modify his disposition and commitment pursuant to sections 775 and 779. The next day, the Sacramento County Probation Department filed a memorandum stating DJJ had accepted B.T.'s commitment on June 2, 2015.
On August 3, 2015, the court signed a "Ruling on Submitted Matter" denying B.T.'s "motion for reconsideration to modify the court's disposition order," and citing In re Edward C. (2014) 223 Cal.App.4th 813 and In re K.J. (2014) 224 Cal.App.4th 1194. The court mailed the ruling to B.T. on August 7, 2015.
On October 9, 2015, B.T. filed a notice of appeal from the "findings and judgment . . . entered on August 10, 2015." His subsequent briefing confirms this is an appeal from the court's August 3, 2015, ruling.
II. DISCUSSION
We requested supplemental letter briefs on whether or not B.T.'s appeal was timely taken from an appealable order. B.T. offers legal arguments but no evidence to support what both parties agree was an untimely filing. However, because we conclude the August 3, 2015, ruling denying his motion to modify was not an appealable order, we need not address B.T.'s arguments that the appeal should be filed despite being untimely.
"The right to appeal is statutory only, and a party may not appeal a trial court's judgment, order or ruling unless such is expressly made appealable by statute." (People v. Loper (2015) 60 Cal.4th 1155, 1159.) Here, the relevant statute is section 800: "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).)
The 2015 dispositional order committing B.T. to DJF was an appealable order. (See In re Shaun R. (2010) 188 Cal.App.4th 1129, 1138.) And a minor defendant must file a notice of appeal within 60 days after the juvenile court issues an appealable order. (Cal. Rules of Court, rules 5.585, 8.406(a)(1).) B.T. did not appeal the 2015 dispositional order at all.
Instead, B.T. purports to appeal from the denial of his subsequent motion to modify that dispositional order. At first glance, this appears to potentially qualify as a "subsequent order" appealable under section 800, subdivision (a). But case law interpreting the analogous Penal Code section 1237, subdivision (b) instructs us that the question is not so simple. That statute provides that "[a]n appeal may be taken by the defendant . . . [f]rom any order made after judgment, affecting the substantial rights of the party." (Pen. Code, § 1237, subd. (b).) "If interpreted broadly, the phrase ['order made after judgment, affecting the substantial rights'] would apply to any postjudgment attack upon the conviction or sentence. Postjudgment trial level attacks seeking to nullify convictions and/or sentences come in many forms. They may be called, for example, motions to vacate, motions to correct, or motions to set aside judgments, petitions for writ of habeas corpus, or petitions for writ of error coram nobis. . . . However, decisional authority has limited the scope of the phrase, defining appealability more narrowly." (People v. Gallardo (2000) 77 Cal.App.4th 971, 980.) Specifically, our Supreme Court has adopted the well-established "qualification that, ordinarily, no appeal lies from an order denying a motion to vacate a judgment of conviction on a ground which could have been reviewed on appeal from the judgment." (People v. Totari (2002) 28 Cal.4th 876, 882 (Totari); accord People v. Thomas (1959) 52 Cal.2d 521, 527.) " 'In such a situation appeal from the judgment is an adequate remedy; allowance of an appeal from the order denying the motion to vacate would virtually give defendant two appeals from the same ruling and, since there is no time limit[ ] within which the motion may be made, would in effect indefinitely extend the time for appeal from the judgment. [Citation.] The considerations are the same whether the matters sought to be presented by motion to vacate actually were presented to the trial court prior to judgment of conviction, or whether such matters should have been but were not so presented.' [Citation.] In other words, 'an order ordinarily is not appealable when the appeal would merely bypass or duplicate appeal from the judgment itself.' " (Totari, supra, 28 Cal.4th at p. 882, quoting People v. Gallardo, supra, 77 Cal.App.4th at pp. 980-981.)
"Courts have made various exceptions to the above general rule of nonappealability, such as when the record on appeal would not have shown the error [citations], when the final judgment that is attacked is void [citations], or when clarification of the law is deemed important in the court's discretion [citations]. In the circumstance of a silent record, 'an appeal from the judgment would have afforded no relief for it would not have brought up a record showing the error of which defendant complained.' " (Totari, supra, 28 Cal.4th at p. 882.) B.T. does not note any of these exceptions or advocate for their application.
Totari further clarifies that the "no second appeal rule" can apply regardless of whether the post-judgment motion or order was authorized by statute. (Totari, supra, 28 Cal.4th at p. 886.) The question is still whether the appeal would bypass or duplicate an appeal from the judgment itself. Our Supreme Court held that a decision denying a motion to vacate under Penal Code section 1016.5 is appealable. (Id. at p. 887.) That section of the Penal Code permits a motion to vacate a judgment based on lack of advisement of the immigration consequences of a plea. (Pen. Code, § 1016.5, subd. (b).) The Supreme Court distinguished the case from prior authority involving a nonstatutory motion to vacate: "Because the grounds supporting a nonstatutory motion are not specifically defined, the 'no second appeal' rule [citation] serves as a procedural device to discourage defendants from raising any postjudgment claim that could have been raised before imposition of judgment or by way of direct appeal from the original judgment." (Totari, supra, at p. 886.) But the statutory motion at issue in Totari was different because the Legislature had "established specific requirements for a motion to vacate under section 1016.5." (Ibid.) In this context, "the 'no second appeal' rule loses its urgency and a denial order qualifies as an 'order made after judgment, affecting the substantial rights of the party' (§ 1237, subd. (b))." (Id. at pp. 886-887.)
B.T.'s motion to modify, which stated it was made under sections 775 and 779, is distinguishable from the type of statutory motion that was found appealable in Totari. Section 775 provides that an order may be "changed, modified, or set aside, as the judge deems meet and proper, subject to such procedural requirements as are imposed by this article." Section 779 states that "[t]he court committing a ward to the Youth Authority may thereafter change, modify, or set aside the order of commitment. Ten days' notice of the hearing of the application therefor shall be served by United States mail upon the Director of the Youth Authority." The People contend the order denying B.T.'s motion to modify is not appealable because he had no statutory right to make it directly. But whether he could ask the court to act on its own motion, or bring the motion himself directly, is irrelevant. (See People v. Loper, supra, 60 Cal.4th at pp. 1164-1167 [concluding defendant could appeal denial of compassionate release under Penal Code section 1170, subdivision (e) despite being unauthorized to seek it himself].) What is relevant is that sections 775 and 779 do not specify any time limits or define any grounds for relief. Under these circumstances, the "no second appeal" rule retains its urgency. (See Totari, supra, 28 Cal.4th at pp. 886-887.) Without it, the 60-day deadline for an appeal of a DJF commitment would be meaningless and there would be no limit to the number of appeals a ward could take.
B.T. contends his appeal is not merely an attempt to bypass an appeal from the juvenile court's 2015 dispositional order committing him to DJF because it is based on new evidence—the DJJ letter. We disagree. The DJJ letter only identifies a legal argument that B.T. could have raised earlier. At the hearing on the motion to modify, his counsel explained that she did not file a notice of appeal regarding the 2015 dispositional order because it was only after she received the DJJ letter that she "looked at those cases more discerningly." B.T.'s appeal also raises an additional argument that was not raised in the DJJ letter or in his motion to modify. It too relies solely on case law that predates his 2015 commitment. As a result, he raises only claims that could have been raised on direct appeal, and allowing B.T. to appeal the motion to modify would merely bypass an appeal of the 2015 dispositional order itself.
III. DISPOSITION
The appeal is dismissed.
/S/_________
RENNER, J.
We concur:
/S/_________
BLEASE, Acting P. J.
/S/_________
NICHOLSON, J.