In re Frederico G.

Filed 4/24/07 In re Frederico G. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from an order of the Superior Court of Los Angeles County, Charles Clay III, Judge. Appeal from judgment dismissed. Order affirmed.

Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Minor appeals from the order of May 19, 2006, denying his motion to have his DNA sample destroyed or the record of it sealed, because his juvenile adjudication had been reduced to a misdemeanor. As appellant has failed to provide an adequate record for review, we affirm the order. Appellant also purports to appeal from the judgment entered December 13, 2004. Because appellant failed to timely file a notice of appeal from the judgment, that part of his appeal must be dismissed.

BACKGROUND

Appellant was detained in October 2004, when a three-count petition was filed to bring him within the jurisdiction of the juvenile court, pursuant to Welfare and Institutions Code section 602.[1] The petition alleged that appellant had committed the crime of carrying a loaded, unregistered firearm, in violation of Penal Code section 12031, subdivision (a)(1). Based upon the same facts, the petition also alleged a violation of Penal Code section 12101, subdivision (a)(1), possession of a concealable handgun, and a violation of Penal Code section 12025, subdivision (a)(3), carrying a concealable firearm in a vehicle. Appellant admitted the allegations of the petition, and he was adjudicated a ward of the juvenile court December 13, 2004. In the same proceeding, the juvenile court entered a disposition, placing appellant on probation at home with his parents for a period not to exceed three years. Appellant did not appeal from that order.

The juvenile court scheduled progress hearings, with and without appearances, and appellants progress reports were favorable. At a nonappearance progress hearing, held April 11, 2006, the court ordered appellant to furnish a DNA sample, and he complied. The final appearance progress hearing was held May 19, 2006. Appellants progress was still good, and appellants motion to reduce the adjudicated offenses to a misdemeanor was granted. At the same time, appellant moved to have the DNA sample destroyed and the record of it sealed, but that motion was denied. Appellant filed a notice of appeal May 24, 2006, specifying that the appeal was taken from the order of May 19, 2006, denying his request to destroy the DNA sample.

DISCUSSION

Appellant contends that the juvenile court erred in failing to consider him for deferred entry of judgment (DEJ) under section 790, et seq. (See also Cal. Rules of Court, rule 5.800 [formerly rule 1495].) The statute requires the prosecuting attorney to assess the eligibility of the minor for DEJ, either before the filing of the section 602 petition or as soon as possible thereafter; if the minor meets the DEJ eligibility requirements, the prosecuting attorney must notify the court of that determination. ( 790, subd. (b); In re Luis B. (2006) 142 Cal.App.4th 1117, 1122.) If the minor is eligible, the prosecuting attorney must also notify the minor, and such notification must include an explanation of the procedures to follow in order to obtain DEJ in lieu of adjudication and disposition. ( 791, subd. (a).) With the minors consent, the juvenile court may summarily grant DEJ, but otherwise, must schedule a hearing and cite the minors parents to attend. ( 791, subd. (b), 792; Cal. Rules of Court, rule 5.800(f); In re Luis B., at p. 1123.) The courts failure to follow the statutory procedures will result in reversal on appeal. (In re Luis B., at pp. 1123-1124.) In this case, the record shows that the prosecuting attorney determined that appellant was eligible for DEJ and so notified the court, but there is no record in the clerks transcript that the remaining requirements were met, and the record on appeal contains no reporters transcript of the 2004 proceedings.

Assuming for discussion that a complete record would show error, we have no jurisdiction to review it. Appellant did not file an appeal from the adjudication/dispositional order, which was entered December 13, 2004. The dispositional order is the appealable judgment in a juvenile proceeding under section 602. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 112; 800, subd. (a).) All orders made prior to the dispositional order, including the adjudication, are reviewed on appeal from that judgment. (In re James J. (1986) 187 Cal.App.3d 1339, 1342-1343.) With exceptions not applicable here, a notice of appeal must be filed within 60 days after the rendition of the judgment or the making of the order being appealed. (Cal. Rules of Court, rule 8.400(d)(1).) The appellate court has no jurisdiction to review an untimely appeal, and must dismiss it. (In re Gary R. (1976) 56 Cal.App.3d 850, 852-853; see In re Henry S. (2006) 140 Cal.App.4th 248, 255.)[2]

After these rules were pointed out by respondent, appellant represented that this appeal was taken from the final dispositional order, referring only to the pages of the clerks transcript where the notice of appeal is reproduced. Although the notice of appeal must be liberally construed, it must identify the particular judgment or order being appealed. (Cal. Rules of Court, rule 8.400(c)(2).) Appellants notice of appeal identifies only the order of May 19, 2006, denying his motion to destroy his DNA sample. Even were we to ignore the plain language of the notice of appeal and construe the notice as including the unmentioned dispositional order of December 13, 2004, it comes 16 months too late. (In re Gary R., supra, 56 Cal.App.3d at pp. 852-853; Cal. Rules of Court, rule 8.400.)

Thus, we review only appellants second assignment of error, relating to the order of May 19, 2006. Appellant contends that because his offenses were wobblers, and the record does not show that the juvenile court declared them to be felonies, he should not have been ordered to provide a DNA sample.[3] The juvenile court ordered appellant to provide a DNA sample under authority of Penal Code sections 296, subdivision (a)(1), and 296.1, subdivision (a)(3), which require the collection of DNA from anyone convicted of a felony, including a juvenile whose adjudication under section 602 was based upon the commission of a felony. The juvenile court must declare any wobbler to be either a felony or misdemeanor at the time of disposition, even if the offense was charged as a felony. ( 702; In re Manzy W. (1997) 14 Cal.4th 1199, 1203-1204, 1207 (Manzy W.); see Cal. Rules of Court, rule 5.790(a).)[4] It has been held that when a minor is adjudicated under section 602 after admitting the commission of an offense that would be either a misdemeanor or a felony if committed by an adult, the DNA requirement is not triggered until the juvenile court expressly declares the offense to have felony status. (In re Nancy C. (2005) 133 Cal.App.4th 508, 510, 512 (Nancy C.).)

Here, the appellate record does not include a reporters transcript of the hearing of December 13, 2004, and the juvenile courts dispositional order is unclear. It was entered on a preprinted minute order form with boxes to be checked. Item No. 30 reads: â