1 Filed 12/23/14 In re J.F. CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT (Sacramento)

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In re J.F., a Person Coming Under the Juvenile Court Law. C075394

THE PEOPLE, Plaintiff and Respondent,

v.
J.F., Defendant and Appellant. (Super. Ct. No. JV134451)

At a May 2013 jurisdictional/dispositiona l hearing on the original Welfare and
Institutions Code secti on 602 petition, the juvenile court sustained the allegation that the
minor J.F. had committed fe lony burglary of “an inhab ited dwelling” and granted supervised felony probation subject to numerous conditions including DNA testing. In2 November 2013, the minor admitted violati ng probation (he was su spended from school) and the juvenile court revoked and reinstated probation. The minor appeals. In his notice of app eal, the minor states that he is appealing
from the November 2013 order bu t raises issues which should have been raised in an appeal from the May 2013 order. The minor contends the juvenile court failed to designate the degree of the burglary (which would have occurred at the May 2013 jurisdictional/dispositional hearing), requiring that the offense be designated second degree and remand for the court to correct the maximum confinement time and to consider whether the second degree burglar y should be a felony or a misdemeanor. Assuming the burglary is d eemed a misdemeanor, the mi nor contends the condition requiring he provide a DNA sample should be stricken.
The minor also contended that he was entitled to additional predisposition custody credits but the juvenile court amended the cred its subsequent to the minor’s filing of his opening brief pursuant to the minor’s request. No further action is required as to that
contention. We requested supplemental briefing, as king the parties to discuss “whether the minor’s current appeal from a November 2 013 order should be dismissed because it raises issues (designation of the degree of offense, probation condition requiring a DNA sample) that should have been raised in an appeal from the May 22, 2013 jurisdictional/dispositional order, revoking defe rred entry of judgment, vacating previous dispositional orders, adjudicating the minor as a ward, and granting supervised probation subject to certain terms and conditions.” Having considered the supplemental briefing received from the parties, we conclude we do not have jurisd iction to resolve the minor’s c ontention with respect to the degree of his offense which should have been decided at the jurisdictional/dispositional hearing in May 2013 or his contention with re spect to the order he submit to DNA testing which was imposed as a condition of probation in May 2013. Because the minor raises3 issues that should ha ve been raised in an appeal fro m the May 2013 order, the minor’s current appeal is untimely and must be dismis sed. Further, the minor’s notice of appeal did not specify that he was a ppealing from the May 2013 order.

F ACTS A ND P ROCEEDINGS On August 30, 2012, the minor and another juvenile entered the attached garage of the home belonging to an off-d uty prison guard and stole a 12- pack of soda. The victim caught the pair and detained them until officers arrived. When interviewed, the other juvenile admitted that he and the minor had stolen the so da from the victim’s home “on a
dare.” A petition filed October 25, 2012, alleged the minor came within the provisions of
Welfare and Institutions Code section 602 in th at he committed burglary of “an inhabited dwelling house,” a felony (Pen. Code, § 45 9; count one) and that the offense was a serious felony within the meaning of Penal Code section 1192.7, subdivision (c). The minor was eligible for deferred entry of ju dgment (DEJ). (Welf. & Inst. Code, § 790.) On January 25, 2013, th e minor entered a negotiate d admission to “Count 1 alleging a felony violation of Section 459 of the Penal Code,” with a maximum confinement of six years, in exchange for DE J with 60 days on home supervision, eight days of juvenile work project, and counse ling as recommended by probation, as well as other terms and conditions. The court accepted the minor’s admission and granted DEJ. (Italics added.) On February 20, 2013, the minor’s mo ther reported to the minor’s probation officer the minor had left home on February 15, 2013 and had not returned. A petition filed February 22, 2013, alleged the minor violated DEJ by being absent from his
mother’s home for more than 48 hours without the approva l of the probation officer (count I) and by violating the terms of th e home supervision contract (count II).4 On May 22, 2013, the minor entered a nego tiated admission to count I in exchange for dismissal of count II and the prosecutor’s agreement not to file criminal charges against the minor stemming from an incident on March 2013 on school grounds when the minor attempted to grab an officer’s fire arm for which the minor was suspended from school for three days. The court revo ked DEJ probation. Based on the minor’s admission of the charged burglar y in the original petition, the court found the charged burglary to be true and sustai ned the October 2012 petition. The court declared the minor a ward of the court and granted supervised felony probation subject to wardship terms and conditions (same conditions that had been imposed under DEJ probation) including DNA testing (under DEJ probation, DNA testi ng had been held in abeyance). The minor was released to his mother’s custody. A petition filed October 10, 2013, alleged that the minor violated the terms and conditions of probation: he failed to comple te two days of work project on October 5, 2013 (count I); he was susp ended from school for misconduct (count II) and he had used marijuana (count III) on Septembe r 19, 2013; he committed fare evasion on July 10, 2013 (count IV); and he was susp ended from school for misconduct on October 9, 2013 (count V). On November 4, 2013 , the minor admitted count II. The court revoked probation and then reinstated the minor on probation s ubject to the additiona l conditions that he serve 30 days in juvenile hall and upon rele ase, he should be placed in a level “A” facility.

D ISCUSSION The People argue this court is without ju risdiction to determine the merits of the minor’s current appeal from th e November 2013 order concer ning the minor’s violation of probation as it raises issues that should have been raised in an appeal from the May 2013 dispositional order and that the appeal mu st be dismissed. Arguing the doctrine of constructive filing does not apply, the People state that they have no knowledge of any5 promise by the minor’s trial counsel to file an appeal from the May 2013 order and argue there were not any arguably meritorious grounds for reversal or modification of that order which would have required trial counsel to file an appeal. The minor responds that the issues rais ed in his appeal are timely, arguing the court’s imposition of a six-year maximum confinement term in November 2013, “triggered the issues raised in the current appeal.” The minor notes that in January 2013,
the court informed the minor the maximum confinement was six years if he failed DEJ probation but argues the advice had no legal effect, citing In re A.C. (2014) 224 Cal.App.4th 590 ( A.C. ).
A.C. is of no assistance to the minor. In A.C., the minor’s only claim on appeal was that the court “ ‘erred in setting a maxi mum confinement time wh en he was released home on probation’ and [asked] that [the appe llate court] strike th e portion of the order including the maximum c onfinement term.” The A.C. court agreed, striking the term. ( A.C., supra , 224 Cal.App.4th at p. 591.) The minor’s argument is not the same as the minor’s in A.C. Here, the minor argues the degree of his burglar y offense had not been determ ined prior to the November 2013 order. Plus, the minor is wrong; the imposition of the six-year confinement term,
even if done for the first ti me in November 2013, did not “trigger” the issue concerning the designation of his offense as first degree . The term was imposed by the juvenile court’s disposition order en tered on May 22, 2013. “A minor may appeal a judgment in a Welfare and Institutions Code section 601 or 602 proceeding ‘in the same manner as any final judgment.’ [Citation.] The juvenile court’s jurisdictional findings are not immedi ately appealable and the appeal is taken from the order made after the disposition heari ng. [Citation.] The minor may also appeal any subsequent order in such proceedings ‘as from an order after judgment.’ [Citation.] [¶] An appeal in a juven ile case must generally be f iled ‘within 60 days after the rendition of the judgment or the making of the order being appealed .’ [Citations.] ‘A6 timely notice of appeal, as a general matter, is “essential to appellate jurisdiction.” ’ [Citation.] ‘In general, an appealable orde r that is not appealed becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment.’ [Citation.]” ( In re Shaun R. (2010) 188 Cal.App.4th 1129, 1138 ( Shaun R. ).) The time to appeal from the juvenile c ourt’s May 2013 dispositional order ran in July 2013 and the minor did not appeal. A petition alleging a viol ation of probation was
filed in October 2013 and the court made its order on the petition in November 2013. The minor filed a notice of appeal in Dece mber 2013, appealing from the November 2013 order. The 60 days had long expired to file an appeal from the May 2013 order. Although the minor timely appealed from the No vember 2013 order, he is precluded from raising issues challe nging the May 2013 order. The minor is also precluded from raisi ng issues related to the May 2013 order because his notice of appeal only cited the N ovember 2013 order. “A notice of appeal is
sufficient if it identifie s the particular judgment or order being appealed. [Citations.]” ( Shaun R., supra , 188 Cal.App.4th at pp. 1138-1139; see also In re Melvin J. (2000) 81 Cal.App.4th 742, 753, disappr oved of on another ground in John L. v. Superior Court (2004) 33 Cal.4th 158, 181, fn. 7.) The mino r did not list issues re lated to the May 2013 order in his notice of appeal and is thus precluded from raising them now. In the alternative, the minor requests this court treat the current appeal as a petition for a writ of habeas corpus. We will do so, but will deny the petition for a writ of habeas corpus on the ground that the minor has fa iled to demonstrate that he would prevail on the merits of the petition. Since the minor’s a ppeal does not raise any issues that require resolution, his appeal will be dismissed.7 D ISPOSITION The appeal is dismissed.

HULL , J.

We concur:

NICHOLSON , Acting P. J.

MURRAY , J.