In re Nia N.
Filed 8/6/12 In re Nia N. CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
In re NIA N., a Person Coming
Under the Juvenile Court Law.
B235221
(Los Angeles
County
Super. Ct.
No. MJ19980)
THE PEOPLE,
Plaintiff and Respondent,
v.
NIA N.,
Defendant and Appellant.
APPEAL
from an order of the Superior Court
of
County,
Robin R. Kesler, Juvenile Court Referee. Appeal dismissed.
Sarah
A. Stockwell, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven D.
Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and
Respondent.
________________________________
Nia N.
appeals, challenging a restitution order
entered after the juvenile court placed her on probation for six months without
wardship. (Welf. & Inst. Code, §
725, subd. (a)).
title="">[1] Nia contends there was insufficient evidence
to support the restitution order. After
requesting supplemental briefing on
the timeliness of the appeal, we dismiss the appeal as untimely.
On August 24, 2010, Nia, then 12
years old, grabbed and punched another female student during lunch at her
middle school.
title="">[2] As a result of the incident, a section 602
petition was filed, alleging Nia had committed
243.2, subd. (a)).
On February 14, 2011, Nia admitted the allegation. The juvenile court found the allegation true
and sustained the petition. Without
adjudging Nia a ward of the court, the juvenile court placed her on six months
of informal probation, on certain terms and conditions, including that she pay
restitution to the victim of the battery as determined by the court.
A contested
2011. The evidence included testimony
from the victim’s father supporting $3,423.06 in restitution, which included
payment for his daughter’s medical expenses, his lost wages for time off work
following the incident, and costs to enroll his daughter in a new and private
school. Nia’s counsel disputed the lost
wages and private school costs as both excessive and a windfall, as well as not
reasonably related to Nia’s conduct. At
the conclusion of the hearing, the juvenile court ordered Nia to pay $1,920.22
in restitution by August 11, 2011.
At an August 11, 2011, status
conference the probation department reported Nia had failed to make victim
restitution payments. The juvenile
court adjudged Nia a ward of the court and ordered her home on probation,
subject to the previously imposed terms and conditions.
On August 12, 2011, Nia filed a
notice of appeal from “the restitution order made on 3/7/11. [Nia’s] petition was sustained on
8/11/11.”
“‘It is
settled that the right of appeal is
statutory and that a judgment or order is not appealable unless expressly made
so by statute.’” (People v. Mazurette (2001) 24 Cal.4th 789, 792.) The judgments or orders of a juvenile court
which are appealable are restricted to those enumerated in section 800. (In re
Henry S. (2006) 140 Cal.App.4th 248, 255, citing People v. Chi Ko Wong (1976) 18 Cal.3d 698, 709, disapproved on
other grounds in People v. Green
(1980) 27 Cal.3d 1, 33-34.) Relevant here,
section 800, subdivision (a), provides that “[a] judgment in a proceeding under
. . . 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.’” (In re
Henry S., supra, 140 Cal.App.4th at p. 255, quoting In re Mario C. (2004) 124
Cal.App.4th 1303, 1307-1308; citing §§ 725 [“After receiving and considering
the evidence on the proper disposition of the case, the court may enter
judgment as follows . . . .”] and 706 [contemplating that, after jurisdictional
finding, court shall consider relevant evidence and render “judgment and order of
disposition”].) That is, the appealable
“judgment” in a juvenile delinquency proceeding is the order placing the minor
on probation without wardship (In re Do
Kyung K. (2001) 88 Cal.App.4th 583, 590) or the dispositional order (
at p. 255).
An order after judgment is appealable separately from the judgment
itself. (§§ 725, subd. (a) and
800, subd. (a); In re Julian O.
(1994) 27 Cal.App.4th 847, 852 [subsequent restitution order appealable as
order after judgment]; People v. Guardado
(1995) 40 Cal.App.4th 757, 763 [same].)
“[A] notice
of appeal must be filed within 60 days after the rendition of the judgment or
the making of the order being appealed.”
(Former Cal. Rules of Court, rule 8.400(d)(1), now rule
8.406(a)(1).) “[T]he filing of a timely
notice of appeal is a jurisdictional prerequisite. ‘Unless the notice is actually or
constructively filed within the appropriate filing period, an appellate court
is without jurisdiction to determine the merits of the appeal and must dismiss
the appeal.’ [Citations.]” (Silverbrand
v. County of Los Angeles (2009)
46 Cal.4th 106, 113.) “The purpose of
this requirement is to promote the finality of judgments by forcing the losing
party to take an appeal expeditiously or not at all. [Citations.]”
(Ibid.; People v. Mendez (1999)
19 Cal.4th 1084, 1094 [“An untimely notice of appeal is ‘wholly ineffectual: The delay cannot be waived, it cannot be
cured by nunc pro tunc order, and the appellate court has no power to give
relief, but must dismiss the appeal on motion or on its own motion.’ [Citations.].”
From these
authorities, we conclude Nia’s appeal was untimely. The rendition of judgment in this case was
the February 14, 2011, order placing Nia on probation without wardship. This order was immediately appealable; Nia
had 60 days from February 14, 2011, in which to file her notice of appeal from
that judgment.
However,
Nia’s sole reason for her appeal was to contest the post-judgment “restitution
order made on 3/7/11.” Accordingly, Nia
had 60 days from that date in which to file her notice of appeal from that
order after judgment. The 60-day deadline
for appealing from the March 7, 2011, restitution order was May 6, 2011. Nia did not file her notice of appeal from
that order until August 12, 2011, well beyond the 60-day deadline.
Nia urges us to allow her
“constructively filed,” citing People v.
Slobodion (1947) 30 Cal.2d 362, 365-368 and People v. Jordan (1992) 4
Cal.4th 116, 125 dealing with the “prison-delivery rule,” which does not serve
to salvage the timeliness of her appeal.
DISPOSITION
The appeal is dismissed.
WOODS,
Acting P.J.
We concur:
ZELON, J. JACKSON,
J.
name="_ftn1" title="">
[1]
All
further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
name="_ftn2" title="">[2] The
underlying facts were taken from the probation officer’s report.
