In re Alexander L.
Filed 1/16/14 In re Alexander L. CA1/5
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
Person Coming Under the Juvenile Court Law.
A138050
(
Super.
This case, which is now before us
for the third time, “dramatically illustrates how much can go wrong when a
cause while it is on appeal.†(
1425, 1429.) Alexander L. (appellant)
challenges a February 15,
2013 dispositional order directing that he
be temporarily housed at the Department of
Juvenile Facilities (DJF). The
juvenile court entered the order which is the subject of this appeal while
appellant’s appeal from a prior commitment order was still pending in this
court.
The settled rule is that the filing
of a valid notice of appeal divests the trial court of subject matter
jurisdiction over the judgment on appeal.
Although an exception to this rule permits a trial court to correct an
unauthorized sentence despite the pendency of an appeal, we hold this exception
does not apply in this case.
Consequently, the February 15, 2013
was entered by a court lacking subject matter jurisdiction. Accordingly, we must reverse.
Factual
and Procedural Background
An understanding of the now-complex
procedural history of this matter requires us to recapitulate the facts of our
two prior opinions in this case—In re
Alexander L. (June 14, 2012, A132219
[nonpub. opn.] (Alexander L. I)
and In re Alexander L. (May 1, 2013, A135213 [nonpub. opn.] (Alexander L. II).
following factual statement from our prior unpublished
Original
Offenses and Placements
In December 2006, the six-year-old
victim told his mother that, during the preceding month, appellant had
sodomized and orally copulated him and forced him to orally copulate
appellant. In February 2007, pursuant to
a negotiated disposition, appellant pled no contest to committing a lewd act on
a child under age 14 (Pen. Code, § 288, subd. (a)) and sodomy of a person
under age 18 (Pen. Code, § 286, subd. (b)(1).)
counts were dismissed.
On February 27, 2007, the court declared appellant a ward of the court (Welf. &
Inst. Code, § 602)
name="_ftnref3" title="">[3] and ordered him detained in juvenile hall pending placement in a
court-approved home or institution. The court imposed standard probation
conditions, including that he “attend/participate†in individual
counseling. The court’s oral statement
of probation conditions included “Counseling as directed.â€
Appellant was placed at the Mathiot
Group Home Program in Sacramento on May 2,
2007, and was terminated therefrom on July
12 based on repeated disruptive behavior.
As a result, he was found to have violated his probation.
On August 10, 2007, appellant was placed at Children’s Therapeutic Community in Riverside. He was removed from that program on September 25, 2008. A notice of probation
violation was filed alleging that appellant was “displaying inappropriate sex
acts with group home peers.†That notice
of probation violation was later dismissed.
On November 21, 2008, appellant was placed at Breaking the Cycle Residential Treatment
Center (BTC) in Sacramento. The probation department’s January 13, 2009 placement review report’s “assessment†section stated, “Minor needs
to complete a juvenile sex offender treatment program prior to returning home.â€
The
Notice of Probation Violation
On April 19, 2010, the probation department filed a notice of probation violation (Welf.
& Inst. Code, § 777) which alleged the following: “On April 12, 2010,
[appellant] was terminated from [BTC], a court-ordered placement for failure to
progress in treatment.â€
name="_ftnref4" title="">[4]
A contested probation violation
hearing was held on September 20, 2010. Appellant’s probation officer was the sole
witness at that hearing, and her testimony was the only evidence received. She testified she knew appellant had been
placed at BTC on November 21, 2008. On April 12, 2010,
the probation officer went to BTC to arrest appellant for violating probation
for “failing to progress.†Over defense
counsel’s hearsay and lack of foundation objections, the probation officer
further stated that appellant’s “treatment providers explained to [her] that he
is failing to progress in treatment†and an employee of BTC had told the
probation officer that appellant was “not using the interventions or the
therapy to his advantage . . . .†Again over defense counsel’s hearsay and lack
of foundation objections, the probation officer testified that she was familiar
with the phases of treatment offered at BTC, and she testified about her
understanding of appellant’s performance in treatment.
The juvenile court sustained the
violation of probation because appellant was not progressing in treatment at an
appropriate pace. The court ordered that
appellant continue to be detained pending the dispositional hearing. The court’s minute order from the September 20, 2010 probation violation hearing notes that the court sustained the
probation violation alleged in the probation department’s April 19 section 777
notice.
At the April 4, 2011 dispositional hearing, the court found by clear and convincing
evidence that appellant failed to reform while placed in residential treatment
programs and imposed a DJF commitment.
Appellant then appealed from the April 4, 2011
commitment order. That appeal was
docketed in this court as No. A132129.
In
re C.H.
During the pendency of the appeal in
Alexander L. I, the
California Supreme Court decided In re
C.H. (2011) 53 Cal.4th 94, which held that “a juvenile court lacks
authority to commit a ward to the DJF under section 731[, subdivision]
(a)(4) [(section 731(a)(4))] if that ward has never been adjudged to have
committed an offense described in section 707(b), even if his or her most
recent offense alleged in a petition and admitted or found true by the juvenile
court is a sex offense set forth in Penal Code section 290.008(c) as referenced
in section 733[, subdivision] (c) [(section 733(c))].†(In re
C.H., at pp. 97-98.) The high
court went on to explain that “the class of wards who may be committed to the
DJF [are] those wards who (1) have committed an offense described in
section 707(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(b) or Penal Code section 290.008(c).†(In re
C.H., at p. 102.)
Assembly
Bill No. 324
After the decision in
Assembly Bill No. 324 (2011-2012 Reg. Sess.) (Stats. 2012, ch. 7,
eff. Feb. 29,
2012; hereafter Assembly Bill
No. 324). “[T]he intent of the
Legislature in enacting this act [was] to address the California Supreme
Court’s ruling in In re C.H.[
codified at section 1752.16, subd. (b), italics added.) Assembly Bill No. 324 “expand[ed] the
class of persons who may be committed to the [DJF] to include a ward who has
committed a specified sex offense, or who was previously found to have
committed a specified serious or violent offense or a specified sex
offense.†(Legis. Counsel’s Dig., Assem.
Bill No. 324 (2011-2012 Reg. Sess.).)
The Legislature deemed the bill “an urgency statute†and explained that
“[i]n order to protect the public by preventing the possible release of
juvenile offenders who committed serious or violent offenses or sex offenses,
it is necessary that this act take effect immediately.†(Stats. 2012, ch. 7, § 4.)
Assembly Bill No. 324 amended
sections 731(a)(4) and 733(c). (See
Stats. 2012, ch. 7, §§ 1, 2.)
Subdivision (a) of section 731 authorizes the juvenile court
to order specified types of treatment and to make orders and commitments for
juveniles who are adjudged wards of the court.
(§ 731(a)(1)-(4); In re C.H.,
supra, 53 Cal.4th at p. 100.)
The legislation amended section 731(a)(4) to permit the juvenile
court to “[c]ommit the ward to the [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 [additions underscored].)
Assembly Bill No. 324 also amended section 733(c) as
follows: “The ward has been or is
adjudged a ward of the court pursuant to Section 602, and the most recent
offense alleged in any petition and admitted or found to be true by the court
is not described in subdivision (b) of Section 707
offense is a sex offense set forth in
Section 290.008 of the Penal Code. This
subdivision shall be effective on and after September 1, 2007.†(Compare Stats. 2008,
ch. 699, § 28, p. 4863 with Stats. 2012, ch. 7, § 2
[deletions in strikethrough, additions underscored].)
The legislation also added
section 1752.16 to the Welfare and Institutions Code: “(a) The Chief of
[DJF], with approval of the Director of Finance, 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 both of the following: [¶] (1) The ward was committed to [DJF] for the
commission of an offense described in subdivision (c) of Section 290.008 of the
Penal Code. [¶] (2) The ward has not been adjudged a ward of the court
pursuant to Section 602 for commission of an offense described in subdivision
(b) of Section 707. [¶] (b) It is the intent of the Legislature in
enacting this act to address the California Supreme Court’s ruling in
(Stats. 2012, ch. 7, § 3, italics added.)
Recall
of DJF Commitment and Recommitment
On March 6, 2012, the juvenile court ordered the parties to submit briefs on
No. 324. On March 22, 2012, appellant’s trial counsel filed a motion to recall the DJF
commitment. Counsel argued that
appellant had never been found guilty of an offense described in
section 707(b), and thus the juvenile court did not have the authority to
commit him to the DJF. The People
responded by conceding that appellant’s commitment to DJF would have to be
vacated. The deputy district attorney
opined that “it may be necessary to set the matter for a recall disposition per
. . . section 731.1 in order to make a dispositional order that
is appropriate under all the circumstances of the case.†He suggested, however, that the court could
commit appellant to DJF under the new section 1752.16.
The probation department prepared a
report, which noted that appellant had been committed to DJF on April 4, 2011, as a consequence of a sustained notice of violation under
section 777. In light of the
decision in In re C.H., the
department recommended that (1) wardship be continued, (2) the April 4, 2011 commitment be set aside, and (3) appellant be “temporarily
housed at DJF, pursuant to [section] 1752.16, for the purposes of participation
in DJF’s Sexual Behavior Treatment Program.â€
The department also recommended imposition of a number of probation
conditions.
The juvenile court held a hearing on
the matter on April 9,
2012.
After argument from counsel, the court announced it would follow the
probation department’s recommendations.
It continued appellant’s wardship but set aside its earlier commitment
order in response to In re C.H. It ruled that “the most appropriate program
. . . in terms of placement, is the program that they have available
at the DJF that the county will have to contract for to obtain. . . .
[¶] So I’m going to order that [appellant] be temporarily housed and given
access to the DJF sex behavior treatment program pursuant to . . .
section 1752.16, and he can be returned to the county when he
satisfactorily completes that program.â€
The court adopted the probation department’s recommendations, including
its proposed probation conditions. A
handwritten notation on the court’s order requests that appellant be
transported “back to [DJF].â€
On April 13, 2012, appellant filed a notice of appeal from the April 9, 2012 order. That appeal was
docketed in this court as No. A135213.
Alexander L. I
On June 14, 2012, we issued our opinion in No. A132129, appellant’s appeal from
the juvenile court’s April 4, 2011 dispositional
order. We reversed the juvenile court
because “[w]e conclude[d] that the court’s finding that appellant violated his
probation was based solely on inadmissible hearsay evidence
. . . .†Since the
hearsay testimony at issue was the sole evidence on which the juvenile court
based its finding that appellant had violated his probation, we held that the
error in its admission was not harmless beyond a reasonable doubt, reversed the
order, and remanded for a new section 777 hearing.
The
Renewed Probation Violation Hearing and Disposition
On October 9 and November 15, 2012, while the appeal in No. A135213 was pending, the juvenile
court held a new probation violation hearing on the basis of the April 2010
notice of violation. Once again, the
basis of the violation was appellant’s alleged failure to progress in treatment. At the conclusion of the hearing, the
juvenile court found appellant had failed to progress in treatment, and it
sustained the probation violation.
The appeal in No. A135213 was
still pending on February 15, 2013, when the
juvenile court held a contested disposition hearing. The juvenile court again ordered appellant
temporarily housed at DJF pursuant to section 1752.16, imposed probation
conditions, and ordered that he participate in a sex offender treatment
program. The court relieved appellant of
any sex offender registration requirement previously imposed.
Appellant filed a notice of appeal
from the February 15,
2013 disposition order on February 27, 2013. That appeal was docketed as
No. A138050.
Alexander L. II
We held oral argument in
No. A135213 on April 18, 2013. On May 1, 2013, we filed our opinion in that case.
violation finding we had reversed in Alexander L. I. (Alexander L. II,
at pp. 2, 9.) We summarized our
holding as follows: “Because we
previously concluded [in Alexander L. I]
that there was insufficient evidence to support the juvenile court’s
determination that appellant violated his probation, it necessarily follows
that he cannot be recommitted based on that determination.†(Alexander L. II,
at p. 2.) We remanded the matter to
the juvenile court with directions that it recalculate appellant’s custody
credits and modify certain probation conditions. (Id.
at p. 12.)
Prior to oral argument, the parties
had informed us that the juvenile court had conducted a dispositional hearing
on February 15. (
p. 11, fn. 9.) We noted,
however, that the February 15 dispositional order was the subject of a
separate appeal in which the record was not yet complete, and we therefore
expressed no view on the merits of that order.
(Ibid.)
The
Current Appeal
On May 7, 2013, before the parties filed briefs in this appeal, we issued an order
directing them to address the following question: “Did the superior court have jurisdiction to
enter the dispositional order that is the subject of the above-captioned appeal
while the appeal in No. A135213 was pending?
(See Agnew v. Superior Court
(1953) 118 Cal.App.2d 230, 234.) If so,
what is the legal basis of that jurisdiction?â€
Discussion
Appellant raises a number of claims
in his opening brief, including various challenges to the applicability and
constitutionality of section 1752.16.
With one exception, we will not reach most of these claims, because we
conclude the jurisdictional issue identified in our May 7, 2013 briefing order is dispositive.
I.
Not Barred by Collateral Estoppel.
Before proceeding to the question of
jurisdiction, we must address a preliminary argument. Appellant contends the probation violation
hearing at issue here should not have occurred in the first instance because it
was barred by the doctrine of collateral estoppel. As support, he cites People v. Quarterman (2012) 202 Cal.App.4th 1280 (
Division One of this appellate district.
Quarterman is distinguishable,
however, because in that case at the first probation revocation hearing one
trial judge found there was insufficient evidence to sustain the notice of
probation violation issued to the defendant.
(Id. at p. 1287.) The district attorney later filed a
materially identical request for revocation of probation, which was heard by a
different judge. The second judge denied
the defendant’s motion to dismiss the probation revocation proceedings on grounds
of collateral estoppel. At the second
hearing, the prosecution presented additional witnesses, thereby correcting the
evidentiary deficiencies that had led the first judge to deny the first request
for revocation. (Ibid.)
The Court of Appeal reversed. (Quarterman,
supra, 202 Cal.App.4th at pp. 1285, 1299.) It explained that “[c]ollateral estoppel will
bar relitigation of an issue decided at a previous proceeding if (1) the issue
decided at the previous proceeding is identical
to the one which is sought to be relitigated; (2) the issue decided in the
previous proceeding was actually
litigated; (3) the issue sought to be relitigated was necessarily decided; (4) the decision in the previous proceeding is
final and on the merits; and (5) the
party against whom preclusion is sought is the
same as, or in privity with, the party to the previous proceeding.†(Id.
at p. 1288.) It then held that all
of the elements of collateral estoppel were satisfied, and thus the prosecution
could not initiate a second probation violation proceeding on the same ground
after failing to sustain its burden at the first, fully litigated probation
revocation hearing. (
But the Quarterman court specifically noted that the trial judge’s decision
after the first probation revocation hearing “was final and on the meritsâ€
because the prosecution had elected not to appeal that decision. (Id.
at p. 1290.) Here, however, the requisite
finality is lacking, since unlike the prosecution in Quarterman, appellant did
appeal from the earlier decision revoking his probation, and this court
reversed that order in Alexander L. I. (See In
re Jorge G. (2004) 117 Cal.App.4th 931, 947 [collateral estoppel does not
bar retrial of prior juvenile adjudication allegation after reversal for
insufficient evidence]; Grain Dealers
Mutual Ins. Co. v. Marino (1988) 200 Cal.App.3d 1083, 1088-1089 [where
judgment in prior criminal action had been set aside in federal habeas
proceeding, it could no longer support application of collateral
estoppel].) Indeed, Quarterman states that where a defendant
has successfully appealed from an adverse probation revocation ruling and a new
hearing results, “the defendant has asked for it; it has not been forced on the
defendant.†(Quarterman, supra, 202 Cal.App.4th at p. 1293.) That is precisely the case here, and thus
collateral estoppel does not apply.
II.
Conduct a Dispositional Hearing During the Pendency of the Appeal in
Alexander L. II.
The parties take opposing positions
on whether the juvenile court had subject matter jurisdiction to issue the February 15, 2013 dispositional order while the appeal in Alexander L. II was pending. Appellant argues the juvenile court lacked
jurisdiction. The People contend the
juvenile court had jurisdiction despite the pendency of the appeal, because the
lower court was correcting an unauthorized sentence. We will analyze these contentions after we
summarize the relevant law.
A. Governing Law
“As a general matter, ‘[t]he filing
of a valid notice of appeal vests jurisdiction of the cause in the appellate
court until determination of the appeal and issuance of the remittitur.’ [Citation.]
By the same token, the notice of appeal divests the trial court of
subject matter jurisdiction.
[Citations.] ‘Because an appeal
divests the trial court of subject matter jurisdiction, the court lacks
jurisdiction to vacate the judgment or make any order affecting it. [Citations.] Thus, action by the trial court while an
appeal is pending is null and void. [Citations.]
Indeed, “[s]o complete is this loss of
jurisdiction effected by the appeal that even the consent of the parties has
been held ineffective to reinvest the trial court with jurisdiction over the
subject matter of the appeal and that an order based upon such consent would be
a nullity.†[Citation.]’ (People
v. Alanis (2008) 158 Cal.App.4th 1467, 1472-1473 [(Alanis)]â€
“ ‘The purpose of the rule
depriving the trial court of jurisdiction pending appeal “ ‘ “is to
protect the appellate court’s jurisdiction by preserving the status quo until
the appeal is decided. The rule prevents
the trial court from rendering an appeal futile by altering the appealed
judgment . . . by conducting other proceedings that may affect it.’ [Citation.]â€â€™ [Citation.]â€
“There are, however, exceptions to
the general rule. The trial court
retains jurisdiction . . . to correct an unauthorized sentence [citation].â€
(People
v. Nelms (2008) 165 Cal.App.4th 1465, 1471-1472 (Nelms).)
B.
Divested the Juvenile Court of Subject Matter Jurisdiction, and its February 15, 2013 Dispositional Order Does Not Fall Within the
Exception for Correction of an Unauthorized Sentence.
The People acknowledge the general
rule that the filing of an appeal divests the juvenile court of jurisdiction
until determination of the appeal and issuance of the remittitur. Nevertheless, they argue this case falls within
the exception that permits a court to correct an unauthorized sentence. (See People
v. Cunningham (2001) 25 Cal.4th 926, 1044 [“an unauthorized sentence is
subject to correction despite the circumstance that an appeal is
pendingâ€].) They assert that an
unauthorized sentence is one that is “in excess of jurisdiction.†(In re
Sheena K. (2007) 40 Cal.4th 875, 887 (Sheena
K.).) According to the People, the April 9, 2012 dispositional order committing appellant to DJF was unauthorized
because it “was based on a probation violation reversed in [
name="_ftnref7" title="">[7] As a consequence, the April 9, 2012 commitment “was an unauthorized sentence subject to correction
despite the circumstance that a new appeal [No. 138050] was pending.†We cannot agree.
The exception for correction of an
unauthorized sentence is more limited than the People suggest. “A sentence is said to be unauthorized if it
cannot ‘lawfully be imposed under any
circumstance in the particular case[.]’â€
truly unauthorized sentence stems from its power to vacate a void judgment.
(See People v. Chagolla (1983) 144
Cal.App.3d 422, 434.) But “ ‘[a]
judgment is void rather than voidable only
if the trial court lacked subject matter jurisdiction.’ [Citation.]â€
(Alanis, supra, 158
Cal.App.4th at p. 1473.) Where, as
here, the trial court “had subject matter jurisdiction over [appellant’s]
criminal prosecution, . . . the . . . judgment was not void
on its face.†(Ibid.) The April 9, 2012 dispositional order therefore was not an unauthorized sentence (a
void judgment) that the juvenile court could correct despite the pendency of an
appeal.
Alanis,
supra, 158 Cal.App.4th 1467, is illustrative. In that case, the defendant accepted a plea
agreement, one term of which was that he would be allowed to challenge the
denial of his preplea discovery motions on appeal. (Id.
at p. 1471.) The trial court
accepted the defendant’s plea and entered judgment in accordance with it,
issuing a certificate of probable cause permitting the defendant to challenge
the denial of his discovery motions. Defendant then filed an appeal from that
judgment. Some time later, the parties
discovered that, contrary to the terms of the plea bargain, the defendant’s
discovery claims might not be cognizable on appeal. (Ibid.) With the prosecutor’s agreement, the trial
court then recalled the sentence to permit the defendant to withdraw his guilty
plea and agree to a court trial. (
reimposed the same sentence, and entered a new judgment. The defendant filed an appeal from the new
judgment, and then later formally abandoned his appeal from the initial
judgment. (Ibid.)
The Court of Appeal held that all of
the trial court’s actions subsequent to the defendant’s filing of his first
notice of appeal “were nullities and void.â€
(Alanis, supra, 158
Cal.App.4th at p. 1473.)
Furthermore, it held that the trial court’s actions did not fall within
any exception to the general rule that the filing of a valid notice of appeal
divests the trial court of subject matter jurisdiction. (Id.
at pp. 1473-1476.) Since the trial
court had subject matter jurisdiction over the defendant’s criminal
prosecution, its first judgment was not void, and the exception for correction
of an unauthorized sentence was inapplicable.
(See id. at p. 1473.)
As was the case in
dispositional order now before us cannot be viewed as the correction of an
unauthorized sentence. That
dispositional order, which returned appellant to DJF, was issued while the
previous commitment (under the April 9, 2012 dispositional order) was on
appeal to this court. The question
therefore becomes, was the commitment under the April 9, 2012
dispositional order—the order allegedly subject to correction—unauthorized in
the sense that “it [could not] ‘lawfully be imposed under any circumstance in
the particular case[?]’ †(
p. 887.) The answer is no.
The juvenile court indisputably has
subject matter jurisdiction over appellant’s wardship proceeding, and its
authority to revoke a ward’s probation for violations cannot be questioned. (See §§ 602, subd. (a), 607,
777.) The April 9, 2012
dispositional order did not, therefore, impose an “unauthorized sentence†in
the sense relevant here. We reversed
that dispositional order because we concluded it was unsupported by substantial
evidence. (Alexander L. II, at pp. 9-10.) Our holding that substantial evidence was
lacking was not a declaration that the commitment could not lawfully be imposed
under any circumstance in appellant’s
case (Sheena K., supra, 40 Cal.4th at
p. 887), but rather that it could not be imposed on the basis of “the
particular sentencing record developed in the trial court.†(People
v. Welch, supra, 5 Cal.4th at p. 235.)
Thus, the juvenile court’s April 9, 2012 dispositional order was
not a void judgment subject to correction despite the pendency of an
appeal. That order “was only voidable
and not void. Consequently, the court
lost jurisdiction over its own judgment after the notice of appeal was filed
and it was pending in our court.†(
Cal.App.4th at p. 1434; accord, People
v. Getty (1975) 50 Cal.App.3d 101, 107 [superior court was without
jurisdiction to recall and modify juvenile ward’s commitment order during
pendency of appeal from order committing ward to California Youth Authority];
Cal.App.2d at p. 234 [juvenile court had no jurisdiction to enforce order
transferring case to municipal court where appeal had been taken from that
order].)
C.
Not Authorize the Juvenile Court to Act During the Pendency of the Appeal in
Alexander L. II.
We turn next to the provisions of
the Welfare and Institutions Code the People contend grant the juvenile court
jurisdiction to act during the pendency of an appeal. They cite a number of statutes that allegedly
permit the juvenile court to take action on a dispositional order even while an
appeal of that order is pending. We are
constrained to reject these arguments, because the record shows the juvenile
court did not purport to act under any of these statutes, and they are
inapplicable by their terms to appellant’s case.
The People contend the “correction
and modification†of appellant’s commitment was authorized by
section 731.1, subdivision (a).
contemplates a process initiated by the chief probation officer’s
recommendation that the juvenile court recall the commitment of a ward whose
commitment offense was not a section 707(b) offense. (In re
Carl N. (2008) 160 Cal.App.4th 423, 438.)
It is this recommendation that triggers the juvenile court’s discretion
under section 731.1, subdivision (a), but the People “offer[] no
evidence of any such recommendation in his case.†(In re
Brandon G. (2008) 160 Cal.App.4th 1076, 1081.) Without this recommendation, appellant’s
commitment could not be recalled under this section. (Ibid.)
Section 778, upon which the People
also rely, is likewise inapposite.
the record discloses no verified petition by any parent or other interested
person seeking “a hearing to change, modify, or set aside any order of court
previously made or to terminate the jurisdiction of the court.†(§ 778.)
We therefore fail to understand how this section can be said to apply
here.
Equally inapplicable is
section 782, under which the juvenile court “may dismiss the petition or
may set aside the findings and dismiss the petition if the court finds that the
interests of justice and the welfare of the minor require such dismissal, or if
it finds that the minor is not in need of treatment or rehabilitation.†This statute authorizes the juvenile court to
“set aside the jurisdictional findings and dismiss the petition if it finds
that the interests of justice and the welfare of the minor require a dismissal,
or if it finds that the minor is not in need of treatment or rehabilitation.†(In re
Greg F. (2012) 55 Cal.4th 393, 404.)
Here, the juvenile court neither dismissed the petition nor found that
appellant was not in need of treatment or rehabilitation. Indeed, it found precisely the opposite.
D. Remedy
Having concluded the juvenile court
lacked subject matter jurisdiction to enter the February 15, 2013
dispositional order, the only question remaining is the proper disposition of
this appeal. Although that order is void
for lack of subject matter jurisdiction, we may properly exercise jurisdiction
over appellant’s appeal from it. (
pp. 1476-1477 [appeal lies from void judgment and Court of Appeal has
jurisdiction to decide it].) Where an
appeal is taken from a void judgment, “the proper procedure is to reverse the
void judgment rather than dismiss the appeal.â€
(Id. at p. 1477, fn.
omitted.)
Because the juvenile court had no
jurisdiction to enter the February 15, 2013 order,
“the matter before us remains as it was when [appellant] filed his notice of
appeal.†(Nelms, supra, 165 Cal.App.4th at p. 1473.) The result is that appellant returns to the
status of a probationer against whom no probation violation has properly been
proved. As a result, “no penalty—be it
commitment to DJF or anything else—[can] be imposed on him until the People
present[] sufficient evidence to the juvenile court that a violation [has]
occurred and the court [makes] the required findings.†(Alexander L. II,
at p. 9.)
Moreover, since we have concluded
the order from which this appeal is taken is void, we do not reach appellant’s
other challenges to the order, including the arguments related to
section 1752.16. (See
pp. 1477-1478.) A “void judgment
calls for a single action: reversal.
Accordingly, we decline [appellant’s] invitation to address the merits
of his appellate claims.†(
in the expenditure of additional time and resources by appointed counsel, the
district attorney, and the superior court and perhaps the Attorney General and
this court.[
name="_ftnref12" title="">[12]] However, despite our strong interest in
judicial economy, we do not believe that such a purely practical interest
legally justifies the circumvention of the procedures for properly preserving
and presenting an issue for appellate review or authorizes us to entertain
appellate claims made in an appeal from a void judgment.†(Id.
at p. 1478.)
Disposition
The February 15, 2013 dispositional order is reversed and the matter is remanded for such
other proceedings as are authorized by law.
_________________________
Jones,
P.J.
We concur:
_________________________
Simons, J.
_________________________
Bruiniers, J.
name="_ftn1" title="">[1]
Although they are unpublished, we may cite our prior opinions pursuant to
California Rules of Court, rule 8.1115(b).
We also grant appellant’s August 15, 2013 request to
take judicial notice of our prior opinions in this matter, as well as of the
briefs and record in the prior appeals.
(Evid. Code, § 452, subd. (d).) We deny as moot appellant’s request for
judicial notice of an excerpt of the report of a special master in unrelated
superior court litigation and of a document issued by the Department of
Corrections and Rehabilitation.
Code section 290.008, subdivision (c) (Penal Code
section 290.008(c)), but they are not listed in Welfare and Institutions
Code section 707, subdivision (b) (section 707(b)).
