Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. No. JJD061374, Hugo J. Loza, Commissioner.
Jackie Menaster, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Rachelle Newcomb and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Kane, J.
Appellant J.T. was adjudged to be within the jurisdiction of the juvenile court under Welfare and Institutions Code section 602, subdivision (a), based on that court’s finding that he committed two counts of receiving a stolen vehicle. On April 15, 2009, the juvenile court issued its dispositional order that appellant remain a ward of the court and serve 45 to 180 days in the Youth Correctional Center Unit under specified terms and conditions. On August 3, 2009, appellant filed a notice of appeal. Although the notice stated the appeal was from a restitution order dated June 3, 2009, the appeal did not address that order but attacked the juvenile court judgment by raising arguments relating to the jurisdictional finding and dispositional order. Because the notice of appeal was filed more than 60 days after the juvenile court entered its dispositional order of April 15, 2009-which was the effective date of the judgment below-we conclude the notice of appeal was untimely. Consequently, we dismiss the appeal.
Unless otherwise indicated, subsequent statutory references are to the Welfare and Institutions Code.
BACKGROUND
On December 3, 2008, the Tulare County District Attorney filed a juvenile wardship petition against appellant under section 602, subdivision (a), alleging four counts of unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)), and four counts of receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)).
On February 18, 2009, the jurisdiction hearing was commenced. On March 4, 2009, the juvenile court found two counts of receiving a stolen vehicle to be true, and it dismissed the other six counts. The two sustained counts of receiving a stolen vehicle were designated as felonies. A disposition hearing was then scheduled and, on April 1, 2009, a probation report was prepared and filed with the juvenile court. On April 2, 2009, the date initially set for disposition, appellant requested a hearing to contest the amount of victim restitution that had been recommended in the probation report.
The disposition hearing was held on April 15, 2009. At that time, the juvenile court issued its dispositional order that appellant continue as a ward of the juvenile court and serve 45 to 180 days in the Youth Correctional Center Unit. Further, the juvenile court announced the maximum available confinement time for appellant was four years six months, and appellant was credited with 126 days for time served. The juvenile court’s dispositional order also incorporated several terms and conditions of probation, in accordance with the recommendations of the probation report. At the time of the juvenile court’s pronouncement of the above stated disposition, appellant was advised in court that he had a right to file an appeal with the Fifth District Court of Appeal, and a written notice was provided to appellant, and was signed by him and by his attorney, specifically advising appellant that he had 60 days from that date (i.e., April 15, 2009) in which to file an appeal.
Since the victim who applied for restitution was not present in court on April 15, 2009, the juvenile court deferred the hearing on victim restitution to a subsequent date. On June 3, 2009, a separate hearing was held on the issue of victim restitution, at which time the juvenile court followed the recommendation of the probation report and ordered appellant to pay the sum of $21,054.83, at the rate of $50 per month, to one of the crime victims whose vehicle was stolen and damaged.
On August 3, 2009, appellant filed a notice of appeal indicating he was appealing from the restitution order of June 3, 2009. As noted above, the appeal does not address the restitution order but rather attacks the validity and/or merits of the judgment entered by the juvenile court under section 602. In particular, appellant’s appeal contends that reversal of the judgment is warranted based on a violation of appellant’s rights under Miranda v. Arizona (1966) 384 U.S. 436. A basic issue apparent on the face of the record before us is the timeliness of such an appeal. Because the standard rule is that the 60-day deadline for filing a notice of appeal from a judgment in juvenile court cases runs from the date of the dispositional order, which was entered on April 15, 2009, in this case, we asked the parties to address the issue of whether the notice of appeal was timely filed. Both parties provided briefing and legal argument on that point.
DISCUSSION
The Appeal Was Untimely
“‘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.’” (People v. Mazurette (2001) 24 Cal.4th 789, 792.) The judgments or orders of a juvenile court which are appealable are restricted to those enumerated in section 800. (In re Henry S. (2006) 140 Cal.App.4th 248, 255.) Section 800, subdivision (a), provides in relevant part that “[a] judgment in a proceeding under Section 601 or 602 may be appealed from, by the minor, in the same manner as any final judgment, and any subsequent order may be appealed from, by the minor, as from an order after judgment.” (Italics added.) “‘[T]he “judgment” in a juvenile court proceeding is the order made after the trial court has found facts establishing juvenile court jurisdiction and has conducted a hearing into the proper disposition to be made.’” (In re Henry S., supra, at p. 255, quoting In re Mario C. (2004) 124 Cal.App.4th 1303, 1307, citing §§ 706, 725.) That is, the appealable “judgment” in a juvenile delinquency proceeding is the dispositional order. (In re Henry S., supra, at p. 255; In re Melvin S. (1976) 59 Cal.App.3d 898, 900-901; In re James J. (1986) 187 Cal.App.3d 1339, 1342.)
“[A] notice of appeal must be filed within 60 days after the rendition of the judgment or the making of the order being appealed.” (Former Cal. Rules of Court, rule 8.400(d)(1), now rule 8.406(a)(1).) “The timely filing of the notice of appeal is jurisdictional. Unless the notice is actually or constructively filed within the relevant period, the appellate court has no jurisdiction to determine the merits of the appeal and must dismiss the appeal.” (In re Gary R. (1976) 56 Cal.App.3d 850, 853.)
Based on these authorities, we conclude that the rendition of judgment in the proceeding below was the dispositional order that was pronounced by the juvenile court on April 15, 2009. At that time, appellant was expressly advised of his right to appeal, but he failed to file a timely notice of appeal within 60 days of the dispositional order. Therefore, his appeal from the judgment entered under section 602 was untimely.
Furthermore, the timeliness of the appeal was not salvaged by appellant’s reference to the subsequent June 3, 2009, restitution order. When the trial court set a postdisposition hearing date to determine the amount of victim restitution, the resulting June 3, 2009, order granting victim restitution became an order after judgment that was appealable separately from the judgment itself. (§ 800, subd. (a); In re Julian O. (1994) 27 Cal.App.4th 847, 852 [subsequent restitution order appealable as order after judgment]; People v. Guardado (1995) 40 Cal.App.4th 757, 763 [same].) Although the restitution order was appealable, that order was not the judgment and an appeal from that order was not an appeal from the judgment.
We disagree with appellant’s contention that a victim restitution order is always a necessary part and parcel of every final dispositional order. The statute allows for the juvenile court to provide for a subsequent hearing to determine the amount of the victim’s loss and even gives the court continuing jurisdiction to modify its restitution orders (see § 730.6, subd. (h)). Further, even though victim restitution has rehabilitative aspects, its distinct purpose is severable from other matters associated with disposition or sentencing in that it is primarily to provide an expedited means of civil recovery for victims. (See People v. Millard (2009) 175 Cal.App.4th 7, 35 [victim restitution primarily to compensate victims, not to punish perpetrator]; see § 730.6, subd. (r) [a victim restitution order is enforceable in same manner as civil judgment].) We conclude that when civil restitution is deferred until after the dispositional order, as was the case here, the resulting restitution order is not the judgment but is merely an order after judgment. It follows that an appeal from such an order is not an appeal from the judgment.
Because the dispositional order is deemed to be the rendition of judgment in a juvenile court proceeding, a party appealing from a section 602 judgment must file a notice of appeal within 60 days after the dispositional order. That did not occur here. Since the dispositional order was made on April 15, 2009, and appellant’s notice of appeal was filed on August 3, 2009, his appeal is untimely.
Relief from Untimely Filing Not Applicable
Appellant argues that if we conclude that the notice of appeal was untimely filed, we should grant relief from that default. We decline to do so. As we noted above: “The timely filing of the notice of appeal is jurisdictional. Unless the notice is actually or constructively filed within the relevant period, the appellate court has no jurisdiction to determine the merits of the appeal and must dismiss the appeal.” (In re Gary R., supra, 56 Cal.App.3d at p. 853.) In the absence of any applicable rules of construction or interpretation which deem the notice to be timely filed, we have no choice but to dismiss. (Ibid.)
Although an appellate court may not extend the time for filing a notice of appeal (former Cal. Rules of Court, rule 8.400(d)(1), now rule 8.406(c)), in “certain compelling circumstances” it may deem a late-filed notice of appeal to be constructively filed within the 60-day period. (Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 113; In re Benoit (1973) 10 Cal.3d 72, 84-86.) The circumstances in which an appellate court may grant such extraordinary relief includes the prison-delivery rule regarding incarcerated prisoners who have timely and diligently provided a notice of appeal to prison staff for mailing. (In re Chavez (2003) 30 Cal.4th 643, 657, 659; In re Benoit, supra, at p. 86.) Constructive filing has been further extended by the Supreme Court “‘to situations wherein an incarcerated criminal appellant has made arrangements with his attorney for the filing of a timely appeal and has displayed diligent but futile efforts in seeking to insure that the attorney has carried out his responsibility.’” (In re Chavez, supra, at p. 657, explaining holding in In re Benoit, supra, at pp. 85-89.) Additionally, such constructive filing has been recognized where the defendant was never informed of his appellate rights. (See Castro v. Superior Court (1974) 40 Cal.App.3d 614, 618-621.)
Appellant asks us to grant relief on the ground that appellant or his attorney assumed that the subsequent June 3, 2009, order on victim restitution constituted the judgment or extended the time for filing an appeal from the judgment. We find such reasoning unpersuasive. The alleged mistakeflies in the face of the undisputed fact that appellant was notified of the 60-day appeal deadline at the time of the dispositional hearing. Moreover, it does not appear that the alleged error by itself comes within the rubric of the cases in which constructive filing has been recognized, which mainly involved special situations of otherwise diligent incarcerated individuals who relied on prison officials or attorney assurances regarding notices of appeal (see Silverbrand v. County of Los Angeles, supra, 46 Cal.4th at pp. 113-122 [extensive summary of case law]); therefore, relief is properly denied in the present case. (See, e.g., In re Chavez, supra, 30 Cal.4th at p. 648 [where attorney failed to promptly inform inmate he would not handle appeal but no representation was made by attorney regarding filing of notice of appeal-relief denied]; People v. Lyons (2009) 178 Cal.App.4th 1355, 1361 [no evidence of inmate’s diligence or of arrangement with trial counsel regarding filing of notice of appeal or that prison staff thwarted efforts-relief denied]; In re Gary R., supra, 56 Cal.App.3d at p. 853 [same, and the defendant was fully advised of appeal rights-relief denied].)
Appellant cites cases such as People v. Acosta (1969) 71 Cal.2d 683, 687-688, for the proposition that we may liberally grant relief from default in cases of failure to file a timely notice of appeal. Appellant’s reliance on such cases is misplaced, since they related to a special review procedure in effect at that time under the then rules of court by which a court could determine whether to excuse a late-filed appeal. That special procedure is no longer in effect, late-filed appeals may no longer be excused, and the applicable law is now the constructive filing doctrine. (Silverbrand v. County of Los Angeles, supra, 46 Cal.4th at pp. 116, 120-121.)
Finally, we believe that granting relief on a record such as the one before us would largely swallow up the rule that a party is required to be diligent in filing a timely notice of appeal. We therefore decline to do so. Timely notice of appeal is, as a general matter, “‘essential to appellate jurisdiction.’ [Citation.]” (People v. Mendez (1999) 19 Cal.4th 1084, 1094, italics added.) The important purpose of that rule is “to promote the finality of judgments by forcing the losing party to take an appeal expeditiously or not at all.” (Silverbrand v. County of Los Angeles, supra, 46 Cal.4th at p. 113.) We hold that appellant failed to timely and expeditiously file notice of appeal and that no sufficient basis for constructive filing is shown.
DISPOSITION
The appeal is dismissed.
WE CONCUR: Wiseman, Acting P.J.Hill, J.