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Filed 7/23/15 In re J.H. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

In re J.H., a Person Coming Under the 

Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

J.H.,

Defendant and Appellant.

A142899

(Sonoma County

 Super. Ct. No. 28851J)

This is an appeal from the dispositional order entered in juvenile delinquency 

proceedings involving minor J.H. after the juvenile court found him in violation of the 

terms of the grant of deferred entry of judgment (DEJ) he received pursuant to Welfare 

and Institutions Code section 790 et seq.1 Minor challenges the sufficiency of the 

 

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“The DEJ provisions of [Welfare and Institutions Code] section 790 et seq. were 

enacted as part of Proposition 21, The Gang Violence and Juvenile Crime Prevention Act 

of 1998, in March 2000. The sections provide that in lieu of jurisdictional and 

dispositional hearings, a minor may admit the allegations contained in a section 602 

petition and waive time for the pronouncement of judgment. Entry of judgment is 

deferred. After the successful completion of a term of probation, on the motion of the 

prosecution and with a positive recommendation from the probation department, the court 

is required to dismiss the charges. The arrest upon which judgment was deferred is 

deemed never to have occurred, and any records of the juvenile court proceeding are 

sealed. ([Welf. & Inst. Code], §§ 791, subd. (a)(3), 793, subd. (c).)” (Martha C. v. 

Superior Court (2003) 108 Cal.App.4th 556, 558.)
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evidence supporting the juvenile court’s finding. Having reviewed the record, we 

disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On October 31, 2013, a juvenile wardship petition was filed pursuant to Welfare 

and Institutions Code section 602, subdivision (a) (the petition) alleging that minor 

committed felony vandalism exceeding $400 in violation of Penal Code section 594, 

subdivision (a).2 After minor was deemed eligible for DEJ, he admitted a single count of 

violating this Penal Code provision. The juvenile court then released him to the custody 

of his grandparents and ordered his participation in drug testing and school attendance. 

At a dispositional hearing held on November 27, 2013, the juvenile court declared 

minor a ward of the court and placed him in the home of his grandparents subject to 

certain terms and conditions. On December 6, 2013, at the request of the probation 

department, the court reconsidered this disposition, revoked and vacated minor’s 

wardship, and instead granted him DEJ subject to certain terms and conditions. 

On June 20, 2014, a Request for Entry of Judgment and Notice of Noncompliance 

(notice) was filed pursuant to section 793, subdivision (a). This notice alleged that minor 

had obstructed a public officer in violation of Penal Code section 148, subdivision (a)(1). 

On August 18, 2014, a contested hearing was held with respect to this alleged violation at 

which the following evidence was presented. 

On June 16 and 18, 2014, Santa Rosa Police Officer Paul Messerschmitt was 

acting as school resource officer for Montgomery High School. One of his duties in this 

role was to walk the school hallways to ensure students were in class. On June 16, the 

first day of summer school, Officer Messerschmitt encountered minor in the hallway on 

two or three occasions. Each time, after confirming minor was not carrying the requisite 

hall pass, Officer Messerschmitt instructed him to return to class. Minor, in turn, acted 

“very nonchalant, just kind of, yeah, whatever.” 

 

2 All subsequent statutory references are to the Welfare and Institutions Code unless 

otherwise noted.
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Two days later, on June 18, Officer Messerschmitt again encountered minor in the 

hallway at about 11:00 a.m. speaking with a student advisor. This time, minor confirmed 

to Officer Messerschmitt that he had a hall pass permitting him to drink water before 

returning to class. Minor approached the water fountain, took a drink, and remained 

standing there, prompting Officer Messerschmitt to instruct him to go to class. Minor 

began to walk slowly toward the classroom before doing “an about-face,” turning around 

to return to the water fountain. Officer Messerschmitt thus told minor, “it’s time to go 

back to class.” Minor, however, refused, and continued walking toward the water 

fountain.

At this point, Officer Messerschmitt approached minor and told him several times 

to go to class, as he had already taken his drink of water. Minor, however, remained 

defiant, telling the officer: “no, I don’t have to,” before returning to the fountain for more 

water. In response, Officer Messerschmitt stepped in front of minor as “he stepped into 

[the officer] to get another drink.” Officer Messerschmitt thus reacted by putting his hand 

up to push minor away from the water fountain, prompting minor to put his own hands 

up. Minor then yelled that Officer Messerschmitt had assaulted him, that he had no right 

to touch him, and that he was a “fucking retard.” After this outburst, minor began to 

walk away with Officer Messerschmitt following behind him, repeatedly instructing him 

to stop. Minor refused and continued onward. 

Eventually, Officer Messerschmitt was able to catch up to minor, at which point 

he grabbed minor’s arm, put him in a wrist lock, and informed him he was under arrest 

for obstructing an officer in the performance of his duties. Officer Messerschmitt then 

took minor to the assistant principal’s office, where he advised her about the incident. 

Minor, meanwhile, was verbally aggressive toward both Officer Messerschmitt and the 

assistant principal. 

Following the contested hearing, the juvenile court found that minor had 

committed the alleged violation of Penal Code section 148, subdivision (a)(1). Judgment 

was thus imposed against minor. Pursuant to this judgment, minor was declared a ward 

of the court and ordered to reside in the home of his grandparents for a term of 
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confinement not to exceed 36 months. On August 26, 2014, a timely notice of appeal 

was filed. 

DISCUSSION

Minor contends his conduct on the day in question did not rise to the level of a 

violation of Penal Code section 148, subdivision (a)(1), such that the juvenile court’s 

finding that he violated the terms of DEJ and subsequent dispositional order declaring 

him a ward of the court must be reversed.3 We disagree based on the substantial 

evidence in the record supporting the juvenile court’s judgment. 

 

3 As an initial matter, the People raise the argument in the Respondent’s Brief that, 

following minor’s filing of the notice of appeal in this matter, the juvenile court acted in 

excess of its jurisdiction by dismissing minor’s delinquency case. The People seek to 

augment the record to include the juvenile court’s order of dismissal, dated March 4, 

2015, and ask this court to deem this order null and void. We indeed agree with the 

general principle of law espoused by the People that “ ‘[t]he filing of a valid notice of 

appeal vests jurisdiction of the cause in the appellate court until determination of the 

appeal and issuance of the remittitur.’ (People v. Perez (1979) 23 Cal.3d 545, 554 [153 

Cal.Rptr. 40, 591 P.2d 63].) By the same token, the notice of appeal divests the trial court 

of subject matter jurisdiction. (People v. Cunningham (2001) 25 Cal.4th 926, 1044 [108 

Cal.Rptr.2d, 291, 25 P.3d 519]; [citation].) ‘Because an appeal divests the trial court of 

subject matter jurisdiction, the court lacks jurisdiction to vacate the judgment or make 

any order affecting it. [Citations.] Thus, action by the trial court while an appeal is 

pending is null and void. [Citations.]’ ” (People v. Nelms (2008) 165 Cal.App.4th 1465, 

1471.) Further, while minor properly notes that, in juvenile proceedings, the court retains 

jurisdiction to make subsequent orders for the welfare of the child based upon events 

occurring after the filing of the notice of appeal, we know of no authority authorizing the 

court to dismiss the juvenile proceedings in their entirety while an appeal is pending. 

(Cf. In re Katherine R. (1970) 6 Cal.App.3d 354, 356 [“Wardship, or jurisdiction over the 

person of a minor, is a continuing condition or status for the welfare of the child and 

changed circumstances must be considered in any proceeding concerning the child’s 

status, even though such changed circumstances may develop during the pendency of an 

appeal”].) In any event, we note that the record on appeal generally does not include acts 

taken by the trial court after the filing of the appellant’s notice of appeal. As such, we 

question why the People failed to first raise this fundamental jurisdictional matter in the 

juvenile court. (See People v. Nelms, supra, 165 Cal.App.4th at p. 1472 [a trial court 

retains jurisdiction to, among other things, vacate a void, but not a voidable, judgment].) 

Nonetheless, for the sake of judicial economy, we grant the People’s motion to augment 

and instruct the trial court on remand to reconsider its action in dismissing this matter 

during the pendency of minor’s appeal. (Kabran v. Sharp Memorial Hospital (2015) 236 
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Penal Code section 148, subdivision (a)(1), provides in relevant part that “[e]very 

person who willfully resists, delays, or obstructs any public officer . . . in the discharge or 

attempt to discharge any duty of his or her office or employment, when no other 

punishment is prescribed, shall be punished . . . .” To prove a violation of this statute, the 

prosecutor must prove: “(1) the defendant willfully resisted, delayed, or obstructed a 

peace officer, (2) when the officer was engaged in the performance of his or her duties, 

and (3) the defendant knew or reasonably should have known that the other person was a 

peace officer engaged in the performance of his or her duties. [Citations.] Defendant 

cannot be convicted of an offense against an officer engaged in the performance of 

official duties unless the officer was acting lawfully at the time. (People v. Gonzales

(1990) 51 Cal.3d 1179, 1217 [275 Cal.Rptr. 729, 800 P.2d 1159].) ‘The rule flows from 

the premise that because an officer has no duty to take illegal action, he or she is not 

engaged in “duties,” for purposes of an offense defined in such terms, if the officer’s 

conduct is unlawful. [Citations.]’ (Ibid.)” (People v. Simons (1996) 42 Cal.App.4th 1100, 

1108-1109.)

To name just some of the evidence in the record supporting the juvenile court’s 

finding of a violation of Penal Code section 148, subdivision (a)(1), Officer 

Messerschmitt testified that, on the day in question, he repeatedly instructed minor to 

leave the water fountain and return to class. Minor, however, refused to obey the 

officer’s commands. Shortly thereafter, minor took his defiance to another level, 

blatantly disobeying Officer Messerschmitt’s instructions to leave the area and to drink 

no more water, by returning to the water fountain and leaning in to take another drink. In 

doing so, minor stepped forward, toward Officer Messerschmitt, prompting the officer to 

put his hand up and push minor back from the fountain. Minor then proceeded to 

verbally attack the officer, yelling profanities at him and claiming he had been assaulted. 

These resistive and obstructive acts by minor, directed against Officer Messerschmitt as 

 

Cal.App.4th 1294, 1306 [a claim based on a lack of fundamental jurisdiction may be 

raised for the first time on appeal].) We express no view at this time regarding the 

appropriateness of dismissing minor’s case.
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the officer carried out his duty of patrolling the hallways to ensure students remained in 

class, sufficed to prove the alleged offense. (People v. Simons, supra, 42 Cal.App.4th at

pp. 1108-1109.)

Despite this evidence, minor suggests Officer Messerschmitt acted unlawfully at 

the time of the alleged offense by pushing him at the water fountain, such that he cannot 

be held in violation of the statute. (People v. Simons, supra, 42 Cal.App.4th at p. 1109.) 

We disagree. The law clearly entitles an officer to employ reasonable force to detain or 

arrest a person, or in self-defense. Here, the juvenile court could reasonably find that 

Officer Messerschmitt acted lawfully when he placed his hand on minor to push him 

away from the water fountain given minor’s repeated and ongoing refusal to comply with 

the officer’s valid commands and his defiant movement toward the officer at the fountain. 

(See People v. Jenkins (2000) 22 Cal.4th 900, 1020 [disputed facts relating to the 

lawfulness of an officer’s conduct are for the trier of fact to determine when the charged 

offense requires the officer to have been acting lawfully at the time the offense was 

committed].) No further evidentiary showing was, thus, required to support the juvenile 

court’s finding of a violation and consequent dispositional order. Accordingly, the order 

is affirmed.
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DISPOSITION

This matter is remanded to the juvenile court with the instruction to reconsider its 

March 4, 2015 order of dismissal during the pendency of minor’s appeal. In all other 

regards, the juvenile court’s judgment is affirmed. 

_________________________

Jenkins, J.

We concur:

_________________________

Pollak, Acting P. J.

_________________________

Siggins, J.