Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura, Ct. No. 2009021916, Manuel J. Covarrubias, Judge
Law Offices of Mark Pachowicz, Christina S. Stokholm, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Lance E. Winters, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Appellant A.L. seeks a reversal of a restitution order that the juvenile court imposed as a condition of his probation after granting him deferred entry of judgment pursuant to Welfare and Institutions Code section 790 et seq. He argues that collateral estoppel barred the prosecution from seeking more victim restitution from him than another court ordered his adult codefendant to pay. Because the challenged order is not an appealable order or judgment, we dismiss the appeal. We also decline appellant's request to treat this matter as a request for extraordinary relief.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
Because appellant admitted the allegations of a section 602 petition, we derive the facts from the probation report.
FACTUAL AND PROCEDURAL BACKGROUND
On May 26, 2009, appellant and his adult codefendant Tyler Dean Evans went to the victims' home, knocked on their door, and entered their back yard after finding that nobody was home. Appellant threw a ceramic turtle, breaking a sliding glass door. They entered the home and removed a large screen television, an acoustic guitar, a large computer monitor, and an iPod music player from the home. They hid some items in bushes near the victims' home. Evans called a friend who drove his car to meet them. They left with him after placing the large television in his car.
Sheriff's deputies investigating the crime contacted Evans after receiving an anonymous tip. He confessed and implicated appellant. Appellant also confessed. Sheriff's deputies recovered the large screen television from Evans's residence and the other property from appellant's residence.
On August 5, 2009, the prosecution filed a section 602 petition alleging that appellant was a minor who committed a first degree residential burglary and received stolen property on May 27, 2009, in violation of Penal Code sections 459, and 496, subdivision (a).
On October 1, 2009, Evans entered into a plea bargain agreement and pled guilty to first degree residential burglary (Pen. Code, § 459). (People v. Evans, Ventura County Superior Court, Case No. 200901987.) The court later ordered him to pay the victims restitution of $830 "with the right to credit for amounts paid by other responsible persons."
Like the trial court, we take judicial notice of the documents from Evans's case. (See Evid. Code, §§ 452 & 453; Aaronoff v. Martinez-Senftner (2006) 136 Cal.App.4th 910, 918-919.)
On October 13, 2009, the district attorney filed a determination of eligibility for deferred entry of judgment (DEJ) form, showing that appellant was eligible. Appellant admitted the allegations of the 602 petition and signed the DEJ form, indicating that he understood the conditions and consequences of the DEJ program. Relevant provisions of his DEJ form provide as follows: "The Deferred Entry of Judgment (DEJ) program will permit the Court to place you on probation for at least 12 months but no longer than 36 months from the date that you are accepted into the program. You will have terms of probations designed to assist you in your education, substance abuse treatment and rehabilitation. Upon the successful completion of the terms of probation, the Court will dismiss the charges against you. Your arrest on those charges will be considered never to have occurred. Any records of these proceedings in the possession of the Juvenile Court will be sealed, except that the District Attorney and the Probation Department will have access to these records for the limited purpose of determining whether you are eligible for DEJ in the future. [¶] If you are accepted, you must admit all of the charges on the Petition. [¶]... [¶] Conditions of Probation: If you are permitted to participate in DEJ, the judge will place you on probation. As a condition of probation you will be required to submit to a warrantless search of your person.... The Court may also impose any other terms of probation which would assist in your education, treatment and rehabilitation and which will prevent your further involvement in criminal activity. You may also be required to pay restitution to any victim."
The court admitted appellant to the DEJ program and ordered him to pay restitution to the victims "subject to a restitution hearing." The probation report recommended $7,002.73 of victim restitution. Appellant submitted a brief asking the juvenile court to find that collateral estoppel barred the prosecution from relitigating the restitution amount that had "already been determined by a court of competent jurisdiction to be $830."
During a restitution hearing on December 18, 2009, the court denied appellant's request for a collateral estoppel finding and stated as its "primary reason" for doing so, as follows: "[A]lthough [a] determination appears to have been made in... adult [codefendant Evans's case], we are in a juvenile court proceeding, but, more importantly, the party to whom this collateral estoppel would apply is not so much the District... Attorney's Office who will be the recipient of any damages that may be ordered for the Court to be paid by the youth as part of his grant of deferred entry of judgment. The essential party to whom the moneys are owed is that of the victim. [¶] And there's nothing to indicate in the record that the victim had an opportunity even to appear on the adult matter in which that was... litigated. And how that amount came about is without the Court's knowing at this point in time. [¶] What we have before the Court is the youth [A.L.] on a grant of deferred entry of judgment. There's been a claim of restitution being made by the victim. The Court does believe he's entitled to a restitution hearing on that amount, but I don't believe the Court is bound by any prior finding that was made without the victim taking part and the Court to actually have a hearing as to determine what is the amount of restitution. [¶] The Court is not saying the amount claimed by the probation office is the amount that's owed. It may be less. And again, for Juvenile Court purposes the Court does have some discretion in determining what is the amount of restitution that should be ordered as part of the rehabilitative process, but on the... issue of collateral estoppel I don't believe the Court is prohibited from determining restitution as required under [the] Welfare and Institutions Code upon his grant of deferred entry of judgment."
Appellant's counsel asserted that the victims had a statutory right to address the court at sentencing, and that the prosecution had the obligation to notify them of the hearing. After acknowledging those points, the juvenile court concluded that collateral estoppel did not apply to the issue of appellant's DEJ restitution. It continued the proceedings for an evidentiary hearing on restitution.
On February 22, 2010, the parties informed the juvenile court that they had agreed to restitution in the amount of $5,085, and appellant's counsel advised the court that appellant did "not wish to waive his right [to appeal] on his collateral estoppel claim." The court responded: "[T]hat matter has been previously resolved by Court ruling [a]nd with that understanding, the Court will now order restitution appears to be owed to the indicated victim of $5,085."
DISCUSSION
Respondent contends that this appeal must be dismissed because there is no appealable order. We agree.
A reviewing court is "'without jurisdiction to consider an appeal from a nonappealable order, and has the duty to dismiss such an appeal upon its own motion. [Citations.]' [Citation.]" (In re Mario C. (2004) 124 Cal.App.4th 1303, 1307.) Appeals in juvenile delinquency matters are governed by section 800, subdivision (a) which states: "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. Pending appeal of the order or judgment, the granting or refusal to order release shall rest in the discretion of the juvenile court."
In this case, the restitution order entered while appellant was in the DEJ program is neither a judgment nor an order after judgment. "In general, a 'judgment' is 'the final determination of the rights of the parties in an action or proceeding.' (Code Civ. Proc., § 577.) More specifically, the '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. (Welf. & Inst.Code, §§ 725 ['After receiving and considering the evidence on the proper disposition of the case, the court may enter judgment as follows....'], 706 [contemplating that, after jurisdictional finding, court shall consider relevant evidence and render 'judgment and order of disposition']....' [Citation.]" (In re Mario C., supra, 124 Cal.App.4th at 1307-1308.) A deferred entry of judgment order "is not a judgment in either the general or the specific sense. As its very name indicates, the order does not enter judgment but 'defer[s]' such entry indefinitely, perhaps permanently.... (Welf. & Inst.Code, § 793, subds. (a) & (b), fn. omitted.)" (Id. at p. 1308.)
Appellant cites no statute authorizing this court to review the restitution order. Absent such a statute, we lack jurisdiction to do so. Appellant does cite one case in which Division Eight of this District affirmed a restitution order following the deferred entry of judgment. (In re Johnny M. (2002) 100 Cal.App.4th 1128.) It did so, however, without addressing the issue of the order's appealability. "An opinion is not authority for a point not raised, considered, or resolved therein. [Citation.]" (Styne v. Stevens (2001) 26 Cal.4th 42, 57-58.) In his reply brief, appellant urges this court to treat this appeal as a request for extraordinary relief. We decline to do so.
DISPOSITION
The appeal is dismissed.
We concur: GILBERT, P.J., YEGAN, J.