Ricki J. v. Superior Court

• Decision Date: 21 April 2005
• Docket Number: No. C047588.,C047588.
• Citation: 128 Cal.App.4th 783,27 Cal.Rptr.3d 494
• Court: California Court of Appeals
• Parties: RICKI J., Petitioner, v. The SUPERIOR COURT of Sacramento County, Respondent, The People, Real Party in Interest.

27 Cal.Rptr.3d 494

128 Cal.App.4th 783

RICKI J., Petitioner, v.The SUPERIOR COURT of Sacramento County, RespondentThe People, Real Party in Interest.

No. C047588.

Court of Appeal, Third District.

April 21, 2005.

Cynthia Campbell Law Office and Cynthia Campbell, under appointment by the Court of Appeal, for Petitioner.

No appearance for Respondent.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, J. Robert Jibson, Supervising Deputy Attorney General, Raymond L. Brosterhous II, Deputy Attorney General for Real Party in Interest.

CANTIL-SAKAUYE, J.

Ricki J. (the minor) appeals from the order of the juvenile court placing her on six months' informal supervision pursuant to Welfare and Institutions Code section 654.2.¹The minor claims the juvenile court erroneously denied her motion to dismiss, which alleged a violation of her speedy trial rights, and erred in requiring her to admit the petition before placing her on informal supervision under section 654.2.Respondent contends the minor's speedy trial claims are not cognizable on appeal after her admission to the petition, but recognizing the minor conditioned her admission on preserving the speedy trial issues for appeal, suggests we remand for her to move to withdraw her admission.The minor, in her reply brief, argues her speedy trial claims are cognizable on appeal.Alternatively, she asks us to treat her appeal as a petition for an extraordinary writ to reach the merits of her speedy trial claims.She also asks this court to strike her admission.

We conclude the juvenile court order of informal supervision is not an appealable judgment or order.Rather than dismissing the appeal, however, we issued a Palma notice (Palma v. U.S. Industrial Fasteners, Inc.(1984)36 Cal.3d 171, 178, 203 Cal.Rptr. 626, 681 P.2d 893(Palma )), advising the parties that we were considering issuing a peremptory writ of mandate in the first instance, not reaching the merits of the speedy trial claims to order a dismissal of the petition, but directing the juvenile court to vacate the minor's admission.We have allowed an opportunity to submit any opposition and reply to the opposition.No opposition materialized.

We conclude the juvenile court clearly erred in taking the minor's admission prior to placing her on informal supervision and by allowing her to condition her admission on preservation of her speedy trial claims.(SeeNg v. Superior Court(1992)4 Cal.4th 29, 35, 13 Cal.Rptr.2d 856, 840 P.2d 961[Palma procedure proper when "there has been clear error under well-settled principles of law and undisputed facts—or when there is an unusual urgency requiring acceleration of the normal process"].)We therefore issue a peremptory writ of mandate directing the juvenile court to vacate the minor's admission.

PROCEDURAL AND FACTUAL BACKGROUND

According to a police report, on January 22, 2003, a loss prevention officer for Macy's department store at Arden Fair Mall observed the minor and another juvenile conceal selected lingerie under their clothes while in the store's dressing stalls.They left the dressing room and the store without paying for the items.They were stopped outside the store and the merchandise was recovered.

Almost four months later, on May 13, 2003, a petition was filed in juvenile court charging the minor with petty theft in violation of Penal Code section 484, subdivision (a).Notice of hearing was sent to the minor's last known address, although previous correspondence sent to such address had been returned.The probation department was unable to locate the minor, who failed to appear for the arraignment hearing on June 3, 2003.An arrest warrant was issued.

Just over a year later, on June 9, 2004, the minor was arrested on the warrant and released on home supervision.The minor moved for dismissal of the proceedings, claiming the postcomplaint delay between the filing of the petition and her arrest violated her Sixth Amendment right to speedy trial.(Barker v. Wingo(1972)407 U.S. 514[92 S.Ct. 2182, 33 L.Ed.2d 101];Serna v. Superior Court(1985)40 Cal.3d 239, 219 Cal.Rptr. 420, 707 P.2d 793.)The juvenile court denied the minor's motion after an evidentiary hearing on July 15, 2004.

The minor subsequently agreed to admit the charge of petty theft in exchange for placement on a program of informal supervision pursuant to section 654.2.Pursuant to this agreement, the minor admitted committing the alleged petty theft.The juvenile court stated the admission would be held "in abeyance" and that it found the petition "not true at this time pending the successful completion of the program and supervision, pursuant to Welfare and Institution[s] Code section 654.2."

Counsel for the minor gave the court notice the admission was conditioned on appeal of the denial of the motion to dismiss.The court said, "I understand that[,]" and placed the minor on informal supervision with a number of conditions.(§§ 654,654.2.)Counsel asked if it was possible to stay two of the conditions of the program pending appeal of the denial of the motion to dismiss.It was counsel's understanding it was not possible to previously appeal the denial of the motion, but counsel informed the court an appeal would be filed at this point.The court agreed to stay the two conditions.

A few days later the minor filed her notice of appeal which raised as the issue on appeal the denial of her motion to dismiss.

DISCUSSION

The minor contends her right to speedy trial was violated under federal and state constitutional standards, as well as under state statutory grounds.She also contends the juvenile court erred in requiring her admission to the petition before placing her on a program of informal supervision under section 654.2.

We conclude an order of informal supervision pursuant to section 654.2 is not appealable and, therefore, we have no jurisdiction to reach these issues on appeal.

It is well settled that the right to appeal is wholly statutory and that a judgment or order is simply not appealable unless expressly made so by statute.(People v. Mazurette(2001)24 Cal.4th 789, 792, 102 Cal.Rptr.2d 555, 14 P.3d 227(Mazurette);In re K.S.(2003)112 Cal.App.4th 118, 120-121, 5 Cal.Rptr.3d 39;In re Rottanak K.(1995)37 Cal.App.4th 260, 265, 43 Cal.Rptr.2d 543.)"The orders, judgments and decrees of a juvenile court which are appealable are restricted to those enumerated in section 800...."(People v. Chi Ko Wong(1976)18 Cal.3d 698, 709, 135 Cal.Rptr. 392, 557 P.2d 976, disapproved on another point inPeople v. Green(1980)27 Cal.3d 1, 33-34, 164 Cal.Rptr. 1, 609 P.2d 468.)Section 800, subdivision (a), authorizes a minor to appeal from a final judgment or any order subsequent to the final judgment.²There is no final judgment when a minor is placed on informal supervision under section 654.2.

"In general, a `judgment' is `the final determination of the rights of the parties in an action or proceeding.'(Code Civ. Proc., § 577.)More specifically, the `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.(Welf. & Inst.Code, §§ 725[`After receiving and considering the evidence on the proper disposition of the case, the court may enter judgment as follows'], 706 [contemplating that, after jurisdictional finding, court shall consider relevant evidence and render `judgment and order of disposition'];In re Sheila B.(1993)19 Cal.App.4th 187, 196[23 Cal.Rptr.2d 482][dispositional order is `"the `judgment'"' under statute governing appeals in dependency proceedings];In re Melvin S.(1976)59 Cal.App.3d 898, 900[130 Cal.Rptr. 844].)"(In re Mario C.(2004)124 Cal.App.4th 1303, 1307-1308, 21 Cal.Rptr.3d 891(Mario C.).)

Section 654.2 provides in relevant part: "If a petition has been filed by the prosecuting attorney to declare a minor a ward of the court under Section 602, the court may, without adjudging the minor a ward of the court and with the consent of the minor and the minor's parents or guardian, continue any hearing on a petition for six months and order the minor to participate in a program of supervision as set forth in Section 654....If the minor successfully completes the program of supervision, the court shall order the petition be dismissed."(Italics added.)

Thus, the procedure contemplated by section 654.2 is a postpetition, preadjudication, certainly prejudgment, program of informal supervision.An order pursuant to section 654.2 essentially places the adjudicatory process on hold in the hope the minor will successfully complete the program of supervision and thereby avoid a judgment altogether.There is no "judgment" from which to appeal at this point.

Our conclusion finds support in Mazurette, supra,24 Cal.4th 789, 102 Cal. Rptr.2d 555, 14 P.3d 227, which addressed the issue of whether there is an appealable judgment or order when a defendant is diverted to a drug rehabilitation program and entry of judgment is deferred under Penal Code sections 1000.1and1000.2, and in Mario C., supra,124 Cal.App.4th 1303, 21 Cal.Rptr.3d 891, which considered appealability of a juvenile court order of deferred entry of judgment pursuant to section 790.

In Mazurette, supra,24 Cal.4th 789, 102 Cal.Rptr.2d 555, 14 P.3d 227, the defendant sought to challenge the denial of a suppression motion by appealing from a drug diversion order made pursuant to Penal Code section 1000.2.The Supreme Court held the appeal was properly dismissed for lack of appellate jurisdiction because the statute governing criminal appeals does not authorize an appeal from an order of diversion.(Mazurette, supra, at p. 792, 102 Cal.Rptr.2d 555, 14 P.3d 227, citing and quotingPen.Code, § 1237.)The Supreme Court stated, "there is—as...