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Filed 3/8/24 In re M.S. CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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In re M.S., a Person Coming Under the Juvenile Court 

Law.

C098657

THE PEOPLE,

Plaintiff and Respondent,

v.

M.S.,

Defendant and Appellant.

(Super. Ct. No. JV140118)

M.S. appeals following a 2023 juvenile court disposition order committing him to 

a secure youth treatment facility. His arguments in this appeal, however, focus on two 

2020 disposition orders that he never appealed. We affirm the 2023 order, the only order 

properly before us, and find M.S.’s failure to timely appeal the 2020 orders deprives us of 

jurisdiction to revisit those orders here.
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BACKGROUND

In 2019, a juvenile wardship petition was filed against M.S. under Welfare and 

Institutions Code section 602,1 alleging that he committed a lewd and lascivious act on a 

13-year-old child. (Pen. Code, § 288, subd. (a).) The juvenile court sustained the 

petition after M.S. admitted to committing a reasonably related offense—a misdemeanor 

violation of Penal Code former section 288a, subdivision (b)(1) (now Penal Code section 

287, subdivision (b)(1)). (Stats. 2018, ch. 423, § 49.) In a 2019 disposition, the court 

placed M.S. on probation for six months under section 725, subdivision (a) without 

making him a ward of the court and ordered him to participate in a treatment program on 

sexual boundaries. (See § 725, subd. (a) [authorizing a juvenile court to place a minor on 

probation “for a period not to exceed six months” without adjudging the minor a ward of 

the court].)

Two months later, in January 2020, the juvenile court modified its probation 

conditions after receiving a psychological evaluation and recommendation from the 

probation officer. The probation officer thought the ordered program on sexual 

boundaries would be insufficient given M.S.’s alleged conduct, which involved trapping 

the victim in a bathroom stall, choking her, and requiring her to perform oral sex on him. 

Believing this conduct required a more involved program, the probation officer 

recommended that M.S. be ordered to participate in a juvenile sex offender treatment 

program (JSO program). The juvenile court agreed. It restarted M.S.’s six-month 

probation term and ordered him to participate in the JSO program. Although defense 

counsel objected that the JSO program would take 12 to 18 months and so could not be 

completed in the six-month probation period, the juvenile court indicated the probation 

period could be extended if M.S. performed well on probation.

1 Undesignated statutory references are to the Welfare and Institutions Code.
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Just shy of six months later, in July 2020, the juvenile court (now a different 

judge) noted that M.S. had not yet completed the JSO program. It also found it 

inappropriate to extend probation another six months under section 725, subdivision (a), 

reasoning that M.S. still needed at least 10 more months to complete the JSO program. 

For that reason, and over defense counsel’s objection that M.S. had done everything he 

possibly could do to successfully complete probation, the juvenile court found M.S. 

failed probation, made him a ward of the court, and told M.S. he needed to complete the 

JSO program. 

In August 2021, a new section 602 juvenile wardship petition was filed against 

M.S., alleging that he unlawfully possessed a firearm (Pen. Code, § 29610) and drew a 

firearm on another person (id., § 417, subd. (a)(2)). The juvenile court sustained the 

petition after M.S. admitted to both counts and continued M.S. as a ward of the court.

In December 2022, another section 602 juvenile wardship petition was filed 

against M.S., alleging that he robbed two individuals. (Pen. Code, § 211.) The court 

sustained the petition after M.S. admitted to one of the robbery counts, with the 

prosecutor dismissing the second count in consideration of the admission. In a 2023 

disposition, the juvenile court continued M.S. as a ward of the court and committed him 

to a secure youth treatment facility with a baseline term of 15 months and a maximum 

term of four years two months. M.S. timely appealed the 2023 disposition, filing his 

notice of appeal in May 2023. M.S. filed his opening brief in September 2023, and this 

case was fully briefed on January 31, 2024.

DISCUSSION

M.S. focuses his argument on two 2020 orders that he never appealed—(1) the 

January 2020 order that modified the probation conditions for his sexual assault offense, 

and (2) the July 2020 order that made him a ward of the court based on his failure to 

satisfy those modified conditions. Starting with the January 2020 order, M.S. asserts the 

juvenile court improperly imposed an impossible probation condition—namely, it 
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required him to complete a JSO program that would take at least 12 months, even though 

the probation period was only six months. Turning to the July 2020 order, he contends 

the court wrongly made him a ward of the court for failing to complete this impossible 

condition, rather than, as it should have, found he complied with all permissible probation 

conditions, dismissed the petition for his sexual assault offense, and sealed the record. 

We will not address these claims, finding we lack jurisdiction to consider the unappealed 

2020 orders.

Our decision follows from well-established principles of appellate jurisdiction. A 

minor may appeal a judgment (or postjudgment order) in a section 602 proceeding “in the 

same manner as any final judgment” (or postjudgment order)—which is to say, as 

relevant here, that a minor seeking appellate review must appeal within 60 days. (§ 800, 

subd. (a); Cal. Rules of Court, rule 8.406(a).) As our Supreme Court has explained, “ ‘[a] 

timely notice of appeal, as a general matter, is “essential to appellate jurisdiction.” ’ 

[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 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 [party] to take an appeal expeditiously or not at 

all.’ [Citation.] As a consequence, ‘ “ ‘an unappealed disposition or postdisposition 

order is final and binding and may not be attacked on an appeal from a later appealable 

order.’ ” ’ ” (In re G.C. (2020) 8 Cal.5th 1119, 1127 (G.C.).) 

These principles are fatal to M.S.’s attempt to challenge the 2020 orders here, both 

of which were ripe for review in 2020. Because he never appealed these orders, he 

cannot now attack them on appeal from a later appealable decision.

M.S. does not dispute these general principles. But he argues we should still 

exercise jurisdiction over the 2020 orders based on a footnote in G.C. In that case, a 

juvenile sought to challenge one juvenile disposition—which failed to classify a wobbler 
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offense as either a misdemeanor or a felony—in an appeal from a later juvenile 

disposition order after the time to appeal the earlier disposition had expired. (G.C., 

supra, 8 Cal.5th at p. 1122.) Our Supreme Court found the appellate court lacked 

jurisdiction to consider this challenge, explaining that the minor’s “failure to timely 

appeal deprived the appellate court of jurisdiction.” (Id. at p. 1123.) But in a footnote, 

the court stated: “Because the [juvenile] court’s failure to make the required declaration 

[in the earlier disposition] had no effect on the [later] disposition, we are not called upon 

to decide the scope of a minor’s appellate rights when the juvenile court’s omission 

impacts the maximum term of confinement in a subsequent proceeding.” (Id. at p. 1129, 

fn. 10.) 

Citing this footnote, M.S. argues we have jurisdiction over the 2020 orders 

because “the errors from 2020 heavily impacted the disposition of 2023.” He then offers 

two general arguments to show this impact.

First, he suggests the juvenile court considered the record of his sexual assault 

offense—which again, he believes should have been sealed—when it calculated his 

maximum term of confinement under section 726, subdivision (d)(3). Under this 

provision, a court “ ‘may aggregate the period of physical . . . confinement for multiple

felony counts or petitions, including previously sustained petitions,’ to arrive at the 

maximum term of confinement.” (G.C., supra, 8 Cal.5th at p. 1128.) Citing this 

language, M.S. suggests the court here increased his maximum term of confinement in 

the 2023 disposition based on his earlier sexual assault offense. But because M.S. offers 

no record citation to support this allegation, nor even discusses the maximum term of 

confinement imposed in this case, we treat his point as forfeited. (See People v. Hoyt

(2020) 8 Cal.5th 892, 939 [“by failing to support his appellate arguments with record 

citations, defendant has forfeited any claim of error on appeal”].)

Next, M.S. contends the juvenile court might have entered a more favorable 

disposition had the record of his sexual assault offense not been part of the “dispositional 
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calculus.” He bases his argument largely on section 875. That statute allows a juvenile 

court to commit a ward to a secure youth treatment facility after making certain findings. 

One finding a court must make is that a less restrictive alternative disposition for the 

ward is unsuitable after considering, among other things, “[t]he ward’s previous 

delinquent history, including the adequacy and success of previous attempts by the 

juvenile court to rehabilitate the ward.” (§ 875, subd. (a)(3)(B).) M.S. states, correctly, 

that this language required the juvenile court here to consider the record of his sexual

assault offense when evaluating the propriety of a less restrictive alternative disposition. 

He adds that the court selected a certain placement facility because of its JSO program 

and imposed a new JSO condition based solely on the outstanding JSO condition from 

the January 2020 order.

But M.S. neglects to substantiate most of his claims. Although he claims the court 

selected a placement facility because of its JSO program, he offers no citation to the 

record. Nor does he offer any record citation when arguing that the court imposed a new 

JSO condition based solely on the outstanding condition from January 2020. Even in his 

reply brief, where he asserts “[t]he clearest indication that [his] prior failure of the JSO 

treatment program affected the disposition in 2023 is that there continues to exist a JSO 

condition,” he again fails to provide any record citation. We find he forfeited any claim 

of error based on these unsupported claims. (See People v. Hoyt, supra, 8 Cal.5th at p. 

939.) 

And although M.S. argues the juvenile court may have found a less restrictive 

alternative disposition suitable had the court not considered the record of his sexual

assault offense, the record is against him. The record shows M.S. had a significant 

delinquent history following his sexual assault offense, including unlawfully possessing a 

firearm, drawing a firearm on another, and robbing someone. The record further shows 

the court focused on M.S.’s later history, not his sexual assault offense, when deciding an 

appropriate disposition in 2023. Although defense counsel argued at the 2023 disposition 
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hearing that M.S.’s performance in the JSO program was the central consideration, the 

juvenile court disagreed. It instructed counsel “to focus on the conduct since then,” 

explaining that the prosecution’s argument was that “given the nature and severity of 

those charged offenses, . . . this is a critical time to ensure that [M.S.] is put in a place 

where he can take advantage of programs that are truly intended to rehabilitate him.”

(Italics added.) The juvenile court then, after hearing from the parties, concluded that 

M.S. “still ha[d] some things to learn” and that commitment to a secure youth treatment 

facility was appropriate. On this record, we are not persuaded that the juvenile court 

would have found a less restrictive alternative disposition suitable had it not considered 

the record of the sexual assault offense.

In the end, M.S. has neither timely appealed the 2020 orders nor shown that these 

orders had any effect on the 2023 disposition. We thus will not consider his challenge to 

the 2020 orders here.

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2 M.S. further argues that the January 2020 order, in adding the JSO probation condition, 

imposed an unauthorized sentence that is correctable at any time, so long as the juvenile 

court has jurisdiction. But because we lack jurisdiction over the January 2020 order, we 

will not address this argument. (G.C., supra, 8 Cal.5th at p. 1130 [a court cannot correct 

an allegedly unauthorized sentence in a judgment unless it has jurisdiction over the 

judgment].)
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DISPOSITION

The 2023 disposition order is affirmed. 

 /s/

BOULWARE EURIE, J.

We concur:

 /s/

DUARTE, Acting P. J.

 /s/

RENNER, J.