1

Filed 2/28/14 In re M.C. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE

In re M.C., a Person Coming Under the 

Juvenile Court Law.

THE PEOPLE,

Plaintiff and Appellant,

v.

M.C.,

Defendant and Respondent.

 A138451

 (San Francisco City & County

 Super. Ct. No. JW126363)

The People, through the San Francisco District Attorney’s Office, appeal from an 

order of the juvenile court denying the victims of a home burglary permission to obtain a 

copy of the probation officer’s dispositional report pertaining to defendant M.C., a minor. 

The People contend the victims were entitled to view this confidential report under the 

victim’s rights provisions of Marsy’s Law.1 After receiving supplemental briefing as to 

whether the challenged order is cognizable on appeal, we have determined this court does 

not have jurisdiction to reach the merits of the issues because the People are appealing 

from a nonappealable order. Accordingly, we dismiss the appeal.

 

1

 California voters, in November 2008, passed Proposition 9, also known as the 

Victims’ Bill of Rights Act of 2008: Marsy’s Law. This initiative added or enhanced 

several state constitutional rights of victims.
2

FACTUAL AND PROCEDURAL BACKGROUND

It is unnecessary to set forth a detailed recitation of the facts underlying the issues 

raised in this appeal.2 

On September 24, 2012, the San Mateo County District Attorney filed a juvenile 

wardship petition against defendant per Welfare and Institutions Code section 602, 

subdivision (a).3 The petition alleged six counts of felony residential burglary (Pen. 

Code, § 460, subd. (a)); six counts of grand theft (Pen. Code, § 487, subd. (a)); one count 

of felony attempted residential burglary (Pen. Code, §§ 664, 460, subd. (a)); and one 

count of felony possession of stolen property (Pen. Code, § 496, subd. (a)). 

On September 25, 2012, a detention report was filed stating that defendant had 

participated in numerous residential burglaries. An adult woman would drive him and 

another minor to a residential area and knock on doors, while the minors waited in the 

vehicle. She would instruct them as to which house to break into, and the other minor 

would use a crowbar to gain access via the rear door of the residence. The two minors

would then grab property and leave. They gave all the items to the woman, who then 

sold them. She gave defendant about $200. Following a search warrant, several items 

were seized as possible stolen property from the woman’s residence.

At the jurisdiction hearing held on October 11, 2012, defendant admitted the 

petition. The juvenile court found three counts of residential burglary to be true. The 

case was ordered transferred to the County and City of San Francisco, where defendant

resides, for disposition. 

A detention report filed by the San Francisco Juvenile Probation Department states 

that defendant’s great grandmother had been his guardian since his birth. She indicated

he had started acting out during the past year, following the death of his father. Prior to 

that time, he had been well behaved and respectful. He reportedly stated to the probation 

 

2

 Appellant’s request for judicial notice and motion to augment the record filed on 

June 11, 2013, is hereby granted.

3

 All further statutory references are to the Welfare and Institutions Code except 

as otherwise specified.
3

officer that he understood the wrongfulness of his actions and that he was prepared to 

cooperate with the probation department. The officer recommended that he be placed on 

home detention with GPS, along with various other orders including orders to stay away 

from the victims and to participate in case management and therapeutic services. 

On October 23, 2012, defendant filed a motion for an order releasing him on strict 

home detention conditions. Defendant noted he had been in continuous custody for about 

a month, and had done well while in custody in San Mateo County. He had incurred only 

one prior sustained petition from when he was 11 years old, and his probation had 

terminated over five years prior to the instant offense. 

On October 25, 2012, defendant was conditionally released on home detention. 

The minutes of the hearing indicate that some of the victims were present and that they 

had asserted all of their rights under Marsy’s Law. Defendant was ordered to write a 

letter of apology to the victims. Copies of the letters are included in the record on appeal. 

On November 21, 2012 the probation officer filed a 45-page dispositional report. 

The dispositional hearing was held on November 27, 2012. Victims Curtis and 

Lisa Cahill, the owners of one of the homes burglarized by defendant and his coresponsibles, were present at the hearing. They requested a copy of the probation 

officer’s report. The application was not based on any specific statutory ground. The 

juvenile court ordered defendant placed on home probation with conditions.

On December 13, 2012, a hearing was held regarding the release of defendant’s 

probation report to the Cahills. Counsel for the district attorney and the public defender 

were ordered to file briefs on this issue. In her brief, the deputy public defender asserted 

the report was part of defendant’s confidential record under section 827, which requires 

persons who are not authorized by statute to file a petition demonstrating good cause 

before accessing records in a minor’s case file. The district attorney’s sole contention in 

response was that release of the report was mandatory under a provision of Marsy’s Law 

contained in California Constitution Article I, section 28 (b)(11), which states, in part, 

that a victim “shall be entitled to [¶] . . . [¶] receive . . . the pre-sentence report . . . except 

for those portions made confidential by law.” (Italics added.)
4

On February 22, 2013, the juvenile court denied the request for release of the 

report, deeming the report confidential under the provisions of the Welfare and 

Institutions Code. 

On April 19, 2013, the district attorney filed a notice of appeal pertaining to the 

order denying the release of defendant’s disposition report to the requesting victims. The 

notice indicates the appeal is taken pursuant to section 800, subdivision (b)(5). 

DISCUSSION

I. Appealable Orders in Juvenile Delinquency Proceedings

An appellate court has “no authority to hear an appeal in the absence of appellate 

jurisdiction.” (In re Almalik S. (1998) 68 Cal.App.4th 851, 854.) Appeals from juvenile 

court orders and judgments are permitted only as provided by statute: “The People’s 

right to appeal in . . . juvenile court proceedings is conferred exclusively by statute.” 

(People v. Superior Court (Arthur R.) (1988) 199 Cal.App.3d 494, 497.) “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. [Citations.] The orders, judgments and decrees of a 

juvenile court [that] are appealable are restricted to those enumerated in section 800 

[citations] . . . .” (People v. Chi Ko Wong (1976) 18 Cal.3d 698, 709, disapproved on 

another ground in People v. Green (1980) 27 Cal.3d 1, 33–34; In re Almalik S., supra, at 

p. 854.)

II. The Order Is Not Appealable by the People Under Section 800

After this appeal was fully briefed, we directed the parties to provide supplemental 

briefing on the following: “The District Attorney states in his opening brief that the order 

at issue here is appealable under Welfare and Institutions Code section 800, subdivision 

(b)(5). The court requests the parties submit letter briefs on the issue of whether there is 

appellate jurisdiction over this appeal in light of case law interpreting that subdivision 

(see, e.g., In re Kenneth S. (2005) 133 Cal.App.4th 54, 61).” Both parties submitted letter 

briefs. 

Section 800, subdivision (b)(5), provides: “An appeal may be taken by the people 

from any of the following: [¶] . . . [¶] (5) The imposition of an unlawful order at a 
5

dispositional hearing, whether or not the court suspends the execution of the disposition.” 

In Kenneth S., supra, the defendant argued that an order granting his motion for a new 

trial, which had been raised during the dispositional hearing, was not appealable. He 

relied, in part, on his contention that subdivision (b)(5) was inapplicable because the 

appeal was not from an unlawful dispositional order. The appellate court agreed that 

subdivision (b)(5) did not afford a basis for appellate jurisdiction in that case, though it 

concluded the order was appealable under an alternate provision. (Kenneth S., supra, 

133 Cal.App.4th at p. 61.) Significantly, for our purposes, the court observed that 

jurisdiction “cannot be premised on section 800, subdivision (b)(5). That subdivision 

implicitly suggests that it is applicable to orders pertaining to the disposition hearing, not 

merely to orders that might happen to be issued at the time of that hearing. While the 

juvenile court’s ruling on the motion for new trial based on a Miranda violation[4]

occurred at the scheduled dispositional hearing, it occurred before that hearing took place 

(it never did take place), and had nothing to do with the disposition, rather pertaining to 

the already completed adjudication hearing. Therefore, the juvenile court’s order was not 

‘an unlawful order at a dispositional hearing,’ as contemplated by subdivision (b)(5).” 

(Ibid.)

Here, the People assert the order denying the release of the disposition report to 

the Cahills is appealable under section 800, subdivision (b), because it “relates directly to 

the Disposition Hearing.” However, while the challenged order pertains to the 

disposition report, which obviously was considered at the dispositional hearing, the order

does not pertain to the actual disposition itself. Nor was the order issued at the 

dispositional hearing, which occurred on November 27, 2012. Instead, the order denying 

access to the disposition report was issued almost three months later, on February 22, 

2013. 

 

4

 Miranda v. Arizona (1966) 384 U.S. 436.
6

In sum, because the People have not set forth a statutory basis on which to appeal 

the order denying the Cahills access to defendant’s disposition report, we are without 

jurisdiction and must dismiss the appeal. 

III. We Decline to Treat the People’s Appeal As a Petition for Writ of Mandate

Although the People do not expressly request that we treat this appeal as a petition 

for writ of mandate, we nevertheless conclude they impliedly requested such treatment 

based on an earlier petition for writ of mandate and/or prohibition (which we denied 

summarily). However, we conclude the interests of justice do not support our treatment 

of this appeal as a petition for writ of mandate.

“An appellate court has discretion to treat a purported appeal from a 

nonappealable order as a petition for writ of mandate, but that power should be exercised

only in unusual circumstances.” (H. D. Arnaiz, Ltd. v. County of San Joaquin (2002) 

96 Cal.App.4th 1357, 1366–1367.) In juvenile wardship cases, “[t]he test controlling the 

People’s entitlement to review by writ is derived from People v. Superior Court 

(Howard) (1968) 69 Cal.2d 491, 501. The test employs two criteria. First, the 

challenged court order must be an act ‘in excess of jurisdiction.’

[5]

Second, upon a 

careful balancing, the need to correct judicial errors prejudicing the People must 

outweigh the conflicting threat of harassment to the accused. The second criterion must 

be resolved against writ review whenever granting the writ would threaten defendant with 

double jeopardy.” (Arthur R., supra, 199 Cal.App.3d at p. 502.) 

Setting aside whether the juvenile court acted in “excess of jurisdiction,” we fail to 

see how denying the victims access to defendant’s dispositional report prejudices the 

People, even if the order is erroneous. The arguments raised below concerned the 

psychological well-being of the Cahills only, and do not suggest that the People were in 

 

5

 Most courts have interpreted Howard’s use of the phrase “excess of jurisdiction”

as meaning “ ‘any misinterpretation, misapplication or refusal to follow applicable 

constitutional, statutory or case law authority.’ ” (People v. Superior Court (Manuel G.) 

(2002) 104 Cal.App.4th 915, 925 [“ ‘A considerable line of authorities holds that the 

court’s failure to either properly interpret or follow the law is in excess of its jurisdiction 

and reviewable on the People’s petition for a prerogative writ [citations].’ ”].)
7

any way impaired in prosecuting this case by the juvenile court’s refusal to give the

couple access to the confidential report. Therefore, the second requirement for granting 

writ review is not satisfied and we elect to forego consideration of the People’s appeal as 

a petition for writ of mandate. 

Even if we were to treat this appeal as a petition for writ of mandate, we would 

deny it on the merits. Section 827 covers who has the right to access and inspect 

confidential juvenile records and how those records should be released. Specifically, 

section 827, subdivisions (a)(1)(A) through (L), delineate the categories of persons 

having the right to inspect juvenile records without a court order. Section 827, 

subdivision (a)(1)(P), provides a juvenile case file may be inspected by “[a]ny other 

person who may be designated by court order of the judge of the juvenile court upon 

filing a petition.” (Italics added.) Additionally, California Rules of Court, rule 5.552(c) 

provides: “With the exception of those persons permitted to inspect juvenile court 

records without court authorization under sections 827 and 828, every person or agency 

seeking to inspect or obtain juvenile court records must petition the court for 

authorization using Petition for Disclosure of Juvenile Court Records (form JV-570).” 

(Italics added.) Here, it is undisputed that neither the Cahills nor the district attorney 

attempted to obtain the detention report under the procedures provided for by section 827. 

Accordingly, because they failed to follow the proper procedures below, the People 

cannot complain of error to this court. 
8

DISPOSITION

The appeal is dismissed.

_________________________

Dondero, Acting P. J.

We concur:

_________________________

Banke, J.

_________________________

Becton, J.

 



 Judge of the Contra Costa County Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.