Opinion
E073392
04-28-2020
In re G.R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. G.R., Defendant and Appellant.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J275992) OPINION APPEAL from the Superior Court of San Bernardino County. Raymond L. Haight III, Judge. Affirmed. Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Andrew Mestman and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant G.R. (minor) was placed on informal probation pursuant to section 654.2 of the Welfare and Institutions Code. More than one year after the petition was filed, the juvenile court found minor had not successfully completed the conditions of his probation. It reinstated the section 602 petition, accepted minor's admission, declared him a ward, and terminated the wardship. On appeal, minor claims that, because section 654.2 requires the court to act on the petition within one year after it was filed, the court had no jurisdiction to make the findings and orders. We affirm.
All further statutory references shall be to the Welfare and Institutions Code unless otherwise noted. --------
BACKGROUND
On May 2, 2018, the San Bernardino County District Attorney filed a petition pursuant to Welfare and Institutions Code section 602 alleging minor violated section 496, subdivision (a), of the Penal Code by receiving a stolen Xbox game system. The court ordered informal probation for minor pursuant to Welfare and Institutions Code section 654.2. The conditions of his probation included requirements that he attend school, obey his parents, pay victim restitution, complete community service hours, attend victim awareness classes, and obey all laws.
In January 2019, the probation officer reported minor had not completed community service hours or victim awareness classes, and he had been cited in Riverside County for possession of stolen property. Minor told the officer that he broke the window of a residence with the intent of burglarizing it but ran away. The probation officer recommended termination of informal probation and reinstatement of the petition.
By the time of the January 24, 2019 review hearing, minor had completed the required hours and classes but the Riverside County citation had not yet been resolved. The court continued the hearing to March 22 and, on that date, continued it again to April 30. On April 30, the Riverside County case was still pending so the court continued the matter to May 13, 11 days after the one-year anniversary of the petition's filing.
The probation officer's updating memorandum prepared in anticipation of the May 13, 2019 hearing reported minor's receipt of a traffic citation from the California Highway Patrol in November 2018, for being an unlicensed driver (a misdemeanor) and for being a sole occupant in the carpool lane.
Minor was ill and did not appear on May 13, 2019. In response to his counsel's request for a continuance, the court ordered minor's return on May 29. When minor did not show on that date, a warrant was issued.
The review hearing did not go forward until July 17, 2019. Minor's counsel informed the court that, by then, her client had been placed on probation as a result of the Riverside County citation. The court found the informal probation had been unsuccessful and reinstated the May 2, 2018 section 602 petition. Minor admitted the petition's allegations, the court adjudged him a ward of the court, and dismissed the petition. Minor appealed.
DISCUSSION
Minor argues the juvenile court lacked fundamental jurisdiction, that is, it did not have jurisdiction over the parties or the subject matter so it had no power to act when it reinstated the section 602 petition and declared him a ward of the court. Resolution of that issue depends on whether the one-year limit on provision of informal probation set forth in section 654.2 is mandatory or directory. If failure to comply with a particular procedural step invalidates the action ultimately taken, then the requirement is "mandatory." (Edwards v. Steele (1979) 25 Cal.3d 406, 409-410 (Edwards).) If lack of compliance with the procedural step does not invalidate the subsequent action, then the requirement is "directory." (Ibid.) We find the time limit set forth in section 654.2 is directory.
When a minor becomes the subject of a section 602 petition, section 654.2 authorizes the juvenile court to continue any hearing on the petition for six months without adjudging the minor a ward of the court and instead order the minor to participate in a program of supervision (informal probation). (§ 654.2, subd. (a).) The court is permitted to extend the period beyond six months but, if the minor does not successfully complete the program, "proceedings on the petition shall proceed no later than 12 months from the date the petition was filed." (Ibid.)
It is well settled that general statutory provisions requiring an act be done within a certain time are directory, not mandatory or jurisdictional, unless a contrary intent is clearly expressed. (Edwards, supra, 25 Cal.3d at p. 410.) Thus, for example, when a statute contains a time limit but does not provide for a consequence or penalty if the specified act is not done within the time stated, then the limit is often deemed directory. (Ibid.; see Briggs v. Brown (2017) 3 Cal.5th 808, 835 ["An intent to divest a court of jurisdiction 'is not read into the statute unless that result is expressly provided or otherwise clearly intended.' "].) Section 654.2 does not specify a penalty or other consequence for failure to proceed on a section 602 petition within one year of its filing.
A time limit is also deemed directory if the likely consequences of characterizing it as mandatory would defeat the statute's purpose. (Edwards, supra, 25 Cal.3d at p. 410.) The purpose of section 654.2's informal supervision program is to avoid a true finding on criminal culpability, which would result in a criminal record for the minor. (In re A.J. (2019) 39 Cal.App.5th 1112, 1116; In re Adam R. (1997) 57 Cal.App.4th 348, 352.) That purpose is not defeated if a juvenile court acts either to reinstate a section 602 petition or dismiss it at a hearing conducted after expiration of the 12-month limit. If the probation conditions are satisfied during the extended period, the petition will be dismissed without creating a criminal record for the minor, a result in keeping with the statute's purpose. On the other hand, if the minor does not complete the conditions during the extended period, then the minor will be declared a ward and end up with a criminal record, which is the same result that he would have obtained had the court proceeded on the petition within the 12-month time limit.
In his reply brief, minor cites California Correctional Peace Officers Assn. v. State Personnel Bd. (1995) 10 Cal.4th 1133, 1143, and posits that we should treat the language "proceedings on the petition shall proceed no later than 12 months" (italics added) as mandatory to avoid rendering it a legal nullity. We do not consider arguments raised in reply briefs without a showing why appellant did not make the argument earlier. (People v. Taylor (2019) 43 Cal.App.5th 390, 400, fn. 4.) We note, however, that although the opinion minor cites does say use of the word "shall" is ordinarily deemed mandatory, the Supreme Court went on to explain that nonetheless the character of the directive is ascertained by employing the analysis we have used here, that is, deciding which interpretation best suits the statute's purpose and ascertaining whether the provision provides a consequence or penalty for failure to act within the prescribed time. (California Correctional Peace Officers Assn. v. State Personnel Bd., at p. 1143.)
Our conclusion that the 12-month limit is directory means that, contrary to minor's claim, the juvenile court in this case did not lose fundamental jurisdiction to act after expiration of that period. It did, however, act in excess of its jurisdiction when it proceeded on the petition after the year had passed without minor's successful completion of the program, a point not argued by the parties. (In re C.W. (2007) 153 Cal.App.4th 468, 473 (C.W.).)
The fact that the court acted in excess of its jurisdiction does not affect our decision to affirm the judgment. Where, as here, the court has fundamental jurisdiction and a party requests or consents to an act beyond the court's power as defined by a directory provision of a statute, the party may be estopped from complaining of the ensuing action taken in excess of the court's jurisdiction. (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1427 (Ramirez).) Moreover, a challenge to a decision made in excess of jurisdiction is subject to the rule of forfeiture if the party fails to object. (Ibid.; see People v. Mower (2002) 28 Cal.4th 457, 474, fn. 6.)
Here, the petition was filed on May 2, 2018. Minor did not object when the review hearing that had been continued to April 30, 2019, was again postponed to May 13, 2019, 11 days beyond the one-year limit. Minor did not appear on that date, and his counsel requested a continuance.
When minor finally appeared on July 17, 2019, counsel for the parties agreed the court should reinstate the petition, find that minor had not successfully completed probation, and close the case, which would result in minor having a criminal record. Thereafter, the court terminated the informal probation, reinstated the section 602 petition, and minor admitted its allegations. At that point, minor's counsel referred to section 654.2 and stated her belief that the correct remedy was a "straight" dismissal because the section 602 proceedings were not commenced within one year after the petition was filed. Nevertheless, she said her client wanted to proceed and she was willing to do so, but she just wanted to put her "understanding" on record. The court found the informal probation was not successful, declared minor a ward of the court, and terminated the wardship.
If the Riverside County citation had been dismissed, minor would have benefitted from the delay in the proceedings because the conditions of his informal probation would have been fulfilled and the section 602 petition dismissed without making a true finding. (§ 654.2; In re Adam R. (1997) 57 Cal.App.4th 348, 353 [When informal probation is ordered pursuant to section 654.2, allegations of a section 602 petition may not be adjudicated unless and until the minor fails to satisfactorily complete the program.].) As it turned out, the delay in proceeding on the petition simply amounted to a true finding being made after the expiration of the 12-month period instead of before it.
Because minor could have benefitted from the delay and was not prejudiced by it, he would be estopped from complaining of the court's acting in excess of its jurisdiction had he raised the issue. (C.W., supra, 153 Cal.App.4th at p. 474.). In addition, minor forfeited any challenge on that ground because he never objected to the continuance beyond the 12-month limit and even specifically agreed to proceed on the petition at the July 19 hearing. (Ramirez, supra, 159 Cal.App.4th at p. 1427.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: SLOUGH
J. MENETREZ
J.