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In re Shaun R.

September 29, 2010

IN RE SHAUN R., A PERSON COMING UNDER THE JUVENILE COURT LAW.
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
SHAUN R., DEFENDANT AND APPELLANT.



(Santa Clara County Super. Ct. No. JV25631), The Honorable Jacqueline Duong.

The opinion of the court was delivered by: McAdams, J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

In the published portion of this opinion, we explore the effect of the phrases "all previous Orders of the Court not inconsistent with today's Orders remain in full force and effect," "[a]ll prior orders not in conflict remain in effect," and "[a]ll prior orders not in conflict with today's orders to remain in full force and effect" in a juvenile court disposition order on the question of the appealability of a previous juvenile court order. We conclude that such language does not revive a previous order that has become final and is non-appealable. It does not turn an otherwise non-appealable order into an appealable order.

Appellant Shaun R., a minor, challenges the imposition of several conditions of probation, five of which are gang-related, in two Welfare and Institutions Code section 602 proceedings. After a contested jurisdictional hearing, the court sustained the allegations of the prosecution's fourth petition involving the minor and found that the minor had committed the following offenses: attempted auto burglary (Pen. Code, §§ 664, 459-460, subd. (b), a felony);*fn2 misdemeanor vandalism (§ 594, subds. (a), (b)(1)); and misdemeanor exhibiting a deadly weapon (§ 417, subd. (a)(1)).

At a disposition hearing in 2009, the court ordered the minor to remain in custody at juvenile hall, pending an opening at a designated group home, and imposed numerous conditions of probation, including conditions that prohibit the use of drugs or alcohol, association with gang members, and other gang-related activity.

On appeal, the minor challenges the 2009 disposition order and disposition orders issued in 2008 in another case. He contends that certain conditions of his probation are vague and overbroad because they (1) fail to give fair notice of their inconsistencies with probation conditions imposed in previous orders of probation; (2) do not contain a knowledge requirement; (3) do not define the terms "gang" and "gang-related"; (4) infringe on his right of free expression; and (5) are otherwise overbroad or vague. The Attorney General agrees that some of the conditions in the 2009 order must be modified. However, he argues that some of the conditions that the minor has placed at issue, which were imposed as part of the 2008 disposition orders in a previous case, are not properly before this court. We conclude that we do not have jurisdiction to address the minor's arguments regarding the probation conditions imposed in 2008. With regard to the 2009 disposition order, we modify a number of the probation conditions, and, as so modified, affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

Prior Offenses and Petitions

Since the age of 10, the minor has appeared before the juvenile court on a variety of charges, most of which were handled informally.

In June 2008, at age 15, the minor was declared a ward of the court and placed on probation after admitting allegations in his third Welfare and Institutions Code section 602 petition (Case No. 302JV25631C, hereafter Petition C), which charged the minor with carrying a concealed dirk or dagger (§ 12020, subd. (a)(4), a felony), resisting arrest (§ 148, subd. (a)(1), a misdemeanor), and exhibiting a deadly weapon (§ 417, subd. (a)(1), also a misdemeanor). When the minor was arrested on the charges in Petition C, he was under the influence of alcohol, was wearing gang clothing, had gang references on his cell phone, had two tattoos, and told the officers he had been "norte" for two years.

At the disposition hearing in 2008, the court returned the minor to the custody of his mother on probation under the supervision of the probation officer and imposed several conditions of probation. The probation conditions are documented in two written orders in which the court ordered that the minor (1) not possess or use drugs or alcohol (Condition 15/21)*fn3; (2) not associate with probationers, parolees, or gang members (Condition 18/24); (3) not frequent areas of gang activity or participate in gang activity (Condition 19/25); (4) not possess, wear, or display gang clothing or gang paraphernalia (Condition 20/26); (5) not obtain any new gang-related tattoos (Condition 21/27); and (6) not use or possess dangerous or deadly weapons (Condition 22/28). We shall hereafter refer to the disposition orders on Petition C as the "2008 Orders." Although the minor did not appeal the 2008 Orders, he challenges some of the probation conditions imposed at that time in the instant appeal.

Current Case

In the current case, the minor's fourth Welfare and Institutions Code section 602 petition (Case No. 302JV25631D, hereafter Petition D), the prosecution charged the minor with attempted auto burglary (§§ 664, 459-460, subd. (b), a felony), vandalism of $400 or more (§ 594, subds. (a), (b)(1), a misdemeanor), and exhibiting a deadly weapon (§ 417, subd. (a)(1), a misdemeanor) arising from an incident on July 13, 2009. The minor was 16 years old at the time of the offenses. One of the victims saw the minor walking around the victims' car with a metal object similar to a "slim jim." The victims then heard the sound of breaking glass. A few minutes later, when one of the victims confronted the minor and his cohorts in the parking lot, the minor threatened him with a hammer. The victims discovered that the side view mirrors on their car were broken.

After a contested jurisdictional hearing, the court found the allegations of the petition true beyond a reasonable doubt.

The minor subsequently told his probation officer that he had been affiliated with the Norteño gang for seven years and that he "jumped in" at age nine. By July 2009, the minor had acquired additional tattoos: (1) a single dot on the index finger of his right hand and four dots on the fingers of his left hand, signifying the number 14, which is associated with the Norteño gang, and (2) a " 'Northern Star' " on the right side of his neck. He admitted to his probation officer that he violated probation by wearing gang clothing, associating with gang members, violating curfew, drinking alcohol, and smoking marijuana.

At the disposition hearing in November 2009, the court ordered the minor to remain under the custody of the probation officer and reside in a group home until January 2010, at which time a family reunification plan would be reassessed.

The court imposed several conditions of probation, six of which are at issue on appeal. The court ordered that the minor (1) "not use, possess, or be under the influence of alcohol or any form of controlled or illegal substance without the legal right to do so and submit to drug and substance abuse testing as directed by the Probation Officer" (Condition 8); (2) "not knowingly associate with any person whom he knows, to be a probationer, parolee, or gang member" (Condition 14); (3) "not knowingly participate in any gang activity and/or visit any areas of gang-related activity that are known to him unless he has prior permission from his Probation Officer" (Condition 15); (4) "not knowingly possess, display or wear any insignia, clothing, logos, emblems, badges, or buttons or display any gang signs or gestures which he knows to be gang-related" (Condition 16); (5) "not obtain any new tattoos that he knows to be gang-related" (Condition 17); and (6) "not knowingly post, display, or transmit any symbols or information that the minor knows to be gang-related" (Condition 18). Unlike the 2008 Orders, the disposition order on Petition D did not contain a "no weapons" condition. The court also ordered that "All previous Orders of the Court not inconsistent with today's Orders remain in full force and effect."*fn4 We shall hereafter refer to the disposition order on Petition D as the "2009 Order."

DISCUSSION

In this appeal from the judgment on Petition D, the minor challenges probation conditions imposed in the 2008 Orders on Petition C, as well as conditions imposed in the 2009 Order on Petition D. The Attorney General argues that the conditions imposed in the 2008 Orders are not properly challenged in this appeal, since the minor could have but did not appeal those orders in 2008. As we explain, we agree that the 2008 Orders are not properly before us.

With regard to the minor's challenges to the conditions imposed in the 2009 Order, the Attorney General agrees that some of the conditions must be modified. We will address each of the conditions that the minor has placed at issue from that order separately. We will also address the minor's contention that the 2009 Order is vague because if fails to inform the minor of the ways in which it conflicts with the 2008 Orders. We begin by discussing the appealability of the 2008 Orders.

I. Appealability of 2008 Orders on Petition C

The minor attacks the 2008 Orders on several specific grounds, arguing: (1) that Conditions 15/21, 21/27, and 22/28 lack a knowledge requirement; (2) that Conditions 18/24, 19/25, 20/26, and 21/27 fail to define the terms "gang" and "gang-related"; (3) that the terms "frequent" and "areas" in Condition 19/25 are vague and overbroad; (4) that Conditions 20/26 and 21/27 violate his right of free expression; and (5) that Condition 22/28 (the no weapons condition) is vague. The minor also argues that the 2009 Order is vague and overboard because the wording of the 2009 Order conflicts with that of the 2008 Orders. He generally "disputes the validity of all the terms imposed on both dates, and requests that the juvenile court specify each condition that [he] must comply with."

The Attorney General argues that the conditions imposed in the 2008 Orders are not properly challenged in this appeal, since the minor could have, but did not appeal those orders in 2008. The minor responds that there has been no waiver.

We conclude that the 2008 Orders are not appealable for two reasons. First, the minor's appeal from the 2008 Orders is not timely. Second, the minor failed to specify the 2008 Orders in his notice of appeal. We also reject the minor's contention that by ordering that "all previous Orders of the Court not inconsistent with today's Orders remain in full force and effect," "[a]ll prior orders not in conflict remain in effect," and "[a]ll prior orders not in conflict with today's orders to remain in full force and effect" (hereafter the "all prior orders" provisions) in the 2009 Order, the court reimposed the conditions in the 2008 Orders that do not conflict with the 2009 Order and that those provisions are therefore appealable in this appeal from the 2009 Order.

A. Timeliness of Appeal

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." (Welf. & Inst. Code, § 800, subd. (a).) The juvenile court's jurisdictional findings are not immediately appealable and the appeal is taken from the order made after the disposition hearing. (In re James J. (1986) 187 Cal.App.3d 1339.) The minor may also appeal any subsequent order in such proceedings "as from an order after judgment." (Welf. & Inst. Code, § 800, subd. (a).)

An appeal in a juvenile case must generally be filed "within 60 days after the rendition of the judgment or the making of the order being appealed." (Cal. Rules of Court, rule 8.406(a)(1) & former rule 8.400(d).) "A timely notice of appeal, as a general matter, is 'essential to appellate jurisdiction.' " (People v. Mendez (1999) 19 Cal.4th 1084, 1094.) "In general, an appealable order that is not appealed becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment." (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421.)

The court made the disposition orders on Petition C (the 2008 Orders) on June 20, 2008. The 60-day deadline for appealing those orders was August 19, 2008. The minor did not appeal from those orders. On July 15, 2009, the prosecution filed a new petition (Petition D) alleging new criminal offenses. The court made its disposition order on Petition D (the 2009 Order) on November 13, 2009. The minor filed a timely notice of appeal from that order on December 10, 2009. However, that notice of appeal was filed well beyond the 60-day deadline for noticing an appeal of the 2008 Orders. The minor's appeal of the 2008 Orders is therefore untimely.

B. Failure to Designate 2008 Orders in Notice of Appeal

In addition, deficiencies in the minor's notice of appeal preclude us from addressing issues related to the 2008 Orders. A notice of appeal is sufficient if it identifies the particular judgment or order being appealed. (Cal. Rules of Court, rule 8.405(a)(3) & former rule 8.400(c)(2).) The notice of appeal here lists only the separate case number for Petition D and states that the minor "appeals the ...


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