Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. J35235
GEMELLO, J.
Defendant Anthony W. challenges juvenile court orders committing him to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF), and ordering that he pay restitution to the State Victim Compensation Board. We conclude that he did not file timely notices of appeal from those orders, and we dismiss his appeal as to those orders. Defendant also contends the juvenile court’s dispositional and commitment orders inaccurately state that the underlying sustained counts were for forcible lewd acts, Penal Code section 288, subdivision (b). We remand for correction of the orders.
Operative July 1, 2005, the California Youth Authority was redesignated the Department of Corrections and Rehabilitation, Division of Juvenile Facilities. (Welf. & Inst. Code, §§ 1710, subd. (a) & 1703, subd. (c).) Accordingly, we treat all references in the record to the California Youth Authority as references to the DJF.
Background
On October 31, 2005, following a contested jurisdictional hearing, the juvenile court in San Joaquin County found that defendant Anthony W., born in April 1989, had committed two counts of lewd acts upon a child (Penal Code § 288, subd. (a)). Defendant committed the underlying offenses while placed at the Ram Foundation group home. The victim was another resident of the group home.
This court affirmed the jurisdictional finding in an earlier appeal, A113368. On June 7 and August 6, 2007, we granted the parties’ requests for augmentation of the record to include documents from the record in A113368. We now grant defendant’s request for judicial notice of the documents listed in his May 25 motion.
In January 2006, the Solano County juvenile court imposed and stayed a DJF commitment and placed defendant at the Teen Triumph group home. Defendant was terminated from the program in April 2006. Defendant admitted he violated probation by failing at the placement.
On August 21, 2006, the juvenile court committed defendant to DJF. The court reserved jurisdiction to determine appropriate restitution. On August 29, the court amended the August 21 order to include sex offender registration and HIV testing. On September 1, the court granted defendant 528 days of custody credits. On October 30, defendant filed a notice of appeal from the August 29 orders. On November 1, following a contested hearing, the court ordered that defendant pay restitution in the amount of $975.
Discussion
The People contend that this appeal should be dismissed because defendant’s appeal from the DJF placement is untimely and because defendant never appealed from the restitution order.
As the California Supreme Court recently explained, “the sole required procedural step of filing a notice of appeal is critical to rendering the appeal operative following a judgment of conviction. In general, a timely notice of appeal is ‘ “essential to appellate jurisdiction.” [Citation.] It largely divests the superior court of jurisdiction and vests it in the Court of Appeal. [Citation.] 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 of a party or on its own motion.” [Citation.] The purpose of the requirement of a timely notice of appeal is, self-evidently, to further the finality of judgments by causing the defendant to take an appeal expeditiously or not at all.’ ” (In re Chavez (2003) 30 Cal.4th 643, 650 (Chavez).)
I. DJF Placement
The juvenile court committed defendant to the DJF on August 21, 2006. The court advised defendant, “Having made a disposition in this case, at this point, Anthony, you need to know you have a right to appeal my decision here today.[¶] And [defense counsel], we should have a form over on the side table for Notification of Right to Appeal, and I would like you to . . . provide one now to [Anthony].[¶¶] Your attorney is going to explain this more fully to you, Anthony, but I’m letting you know right now that you are being advised of your right to appeal this decision in the First District Court of Appeals. The paper I’ve just had handed to you has the mailing address on it. That appellate right needs to be exercised in writing, and to exercise this right, there’s a 60-day time limit from today in which you must act to file a timely Notice of Appeal.[¶] The Notice of Appeal is filed in this court, not in the Court of Appeals, and it must clearly specify what you are appealing from, that you are appealing, whether you’re appealing from the whole judgment or just part of it, and it must be signed by either you or your attorney.[¶] Okay. Any further questions you have about this appeal right, your attorney is here and certainly will afford you more time . . . to talk to him this afternoon about your right to appeal.”
On August 29, 2006, the juvenile court amended the dispositional order to include sex offender registration and AIDS testing. On September 1, the court made a “second supplement to the original” dispositional order, granting defendant custody credits. A contested restitution hearing took place on October 24. On October 30, defendant filed his notice of appeal, specifying that he was appealing from the juvenile court orders on August 29. On November 1, the court entered its restitution order.
Defendant acknowledges that his trial counsel failed to file a notice of appeal within 60 days after the August 21 dispositional order. (Cal. Rules of Court, rule 8.400(d)(1).) Nevertheless, he contends that the notice should be deemed timely filed because “the California Supreme Court and the appellate courts have repeatedly held that where an incarcerated defendant has instructed and relied upon his attorney to perfect an appeal, the defendant is entitled to relief from default in the filing of a late notice.” That argument invokes the “constructive filing” doctrine as applied in In re Benoit (1973) 10 Cal.3d 72, 75. In Benoit, the Supreme Court considered the petitions for writ of habeas corpus of two defendants who presented evidence that, as prisoners, they had relied upon their trial attorneys’ express agreements to timely file notices of appeal and that the attorneys had failed to do so. (Id. at pp. 76-78 & fns. 4 & 6, 87, 89; see also Chavez, supra, 30 Cal.4th at p. 657.) The court held that where counsel has undertaken to file the notice of appeal and the defendant has displayed diligence in protecting his right to appeal, the constructive filing doctrine applied and rendered the appeal timely. (Benoit, at p. 89.) Chavez explained that “In Benoit, we applied the doctrine of constructive filing based upon a promise or representation made by each defendant’s attorney that he would timely file a notice of appeal on his client’s behalf. [Citation.] We relied in part upon the circumstance that the assurances had been made by the defendants’ trial counsel, noting that ‘the prisoner would be more justified in relying on his counsel who had represented him and might have some continuous concern for him . . . .’ ” (Chavez, at p. 658.)
In this case, there is no evidence that defendant requested that his counsel file a notice of appeal on his behalf. In fact, the declaration of trial counsel which accompanies defendant’s motion to deem the appeal timely conspicuously fails to aver that defendant asked him to file the notice of appeal. Instead, it states that defendant’s appellate counsel instructed him to file the appeal. The declaration submitted by appellate counsel states that she instructed trial counsel to file the appeal, but it does not aver that defendant asked her to make that request of trial counsel. In short, there is no evidence to support the constructive filing theory advanced by defendant in his reply brief and motion. Defendant’s appeal from the August 21, 2006 dispositional order must be dismissed as untimely.
II. Restitution
The People contend that this court lacks jurisdiction over defendant’s challenge to the restitution order because defendant never appealed from that order.
Defendant filed his notice of appeal on October 30, 2006, specifying that he was appealing from the juvenile court orders on August 29. On November 1, the court entered its restitution order. The notice of appeal does not encompass the subsequent restitution order, which was a separately appealable order. (Welf. & Inst. Code, § 800, subd. (a); In re Julian O. (1994) 27 Cal.App.4th 847, 852.) Citing In re Ricky H. (1992) 10 Cal.App.4th 552, 558, defendant argues that the notice was a premature notice of appeal from the restitution order; he requests in his motion that the notice be treated as timely because the restitution order was “preliminarily made” at the August 21 dispositional hearing.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Under rule 8.400(f)(1) of the California Rules of Court, “[a] notice of appeal is premature if filed before the judgment is rendered or the order is made, but the reviewing court may treat the notice as filed immediately after the rendition of judgment or the making of the order.” (See also In re Ricky H., supra, 10 Cal.App.4th at p. 558.) We decline to do so because the notice of appeal was filed before any decision as to restitution had been made. As In re Ricky H. explains, “Typically, premature appeals are deemed to be timely when the decision being appealed from has been made preliminarily, but is not yet final. For instance, premature notices of appeal have been treated as timely when they were filed after the verdict but before the pronouncement of judgment [citation], or after a judge announced an intended decision but before a final judgment was signed [citation].” (In re Ricky H., supra, 10 Cal.App.4th at pp. 558-559; see also Lee Newman, M.D., Inc. v. Wells Fargo Bank (2001) 87 Cal.App.4th 73, 78.)
In the present case, an attachment to the August 21 dispositional order stated regarding restitution, “Victim-Witness program seeks $1.950.00. Jurisdiction is reserved to determine appropriate restitution.” The November 1 restitution order followed contested hearings regarding the request for restitution. The October 30 notice, which does not even refer to restitution, was not a premature appeal from a preliminary decision on the restitution issue. Moreover, if we were to treat the notice of appeal as filed immediately after the November 1 restitution order, then the notice would not be timely as to the August 29 orders, which are the specific orders mentioned in the notice. A notice of appeal must be filed within 60 days after the making of the order at issue. (Cal. Rules of Court, rule 8.400(d)(1).)
III. Correction of Clerical Errors in the Record
Defendant requests correction of the August 21, 2006 disposition and commitment orders and the subsequent amendments to those orders, which state that the two sustained counts were for forcible lewd acts, Penal Code section 288, subdivision (b). The underlying petition alleged that defendant committed forcible lewd acts. However, the juvenile court only sustained violations of the lesser included offense of non-forcible lewd acts, Penal Code section 288, subd. (a).
The People agree that the juvenile court orders should be corrected to reflect that the sustained offenses were violations of Penal Code section 288, subdivision (a). The People also point out that the correction raises questions about designation of the offenses as Welfare and Institutions Code section 707, subdivision (b) offenses, because Penal Code section 288, subdivision (a) is not an offense listed under Welfare and Institutions Code section 707, subdivision (b). The People suggest that we remand to the juvenile court to allow the court to determine, based on a review of the underlying conduct, whether one of the sustained offenses involved force and, thus, properly can be designated a section 707, subdivision (b) offense. (In re Emilio C. (2004) 116 Cal.App.4th 1058, 1064-1065; In re Gary B. (1998) 61 Cal.App.4th 844, 850-851.) The juvenile court judge who heard the evidence regarding the underlying offenses stated that she “specifically does not believe that there has been proof” of forcible lewd acts. Moreover an earlier rape allegation was resolved with defendant’s admission to a non-forcible lewd act; there were no facts developed regarding that incident which could be used as the basis for the section 707, subdivision (b) determination. Accordingly, there is no basis for remand for redetermination of the issue.
On remand, we will direct the trial court to correct its orders.
Disposition
The appeal is dismissed as to defendant’s challenge to the orders committing him to the DJF and directing him to pay restitution. Defendant’s August 21, 2007 motion to deem the notice of appeal timely filed is denied. This matter is remanded to the juvenile court for correction of its orders to reflect that the counts sustained on October 31, 2005 were violations of Penal Code section 288, subd. (a), to delete the Welfare and Institutions Code section 707, subdivision (b) designation of the offenses, and to modify other aspects of its orders as appropriate following deletion of the section 707, subdivision (b) designation.
We concur. JONES, P.J., SIMONS, J.