In Re William C.
Paul Arthur Turner, under appointment by the Court of Appeal, for Defendant and Appellant.
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Shunji Asari and Mark Alan Hart, Deputy Attorneys General, for Plaintiff and Respondent.
ASHBY, J.
On May 18, 1976, a juvenile court referee found appellant to be a person described by
TIMELINESS OF APPEAL
(1a) The Attorney General contends the notice of appeal was not timely filed and that the appeal should be dismissed. The notice of appeal was filed within 60 days1 of the order denying rehearing, but was filed more than 60 days after the adjudication and disposition orders. In order to analyze respondent‘s contention, we undertake a review of the current law on this subject. At the outset we caution, however, that current law will be modified after July 1, 1977, as discussed in a later section of this opinion, by specific court rules adopted by the Judicial Council.
Notes
In the absence of specific rules governing juvenile appeals, the courts have borrowed from rule 2, California Rules of Court, governing civil appeals, and held that the time limit in which to appeal is 60 days from the applicable order. (In re DeBaca, 197 Cal. App. 2d 672, 675 (1961); In re Gary R., 56 Cal. App. 3d 850, 852 (1976).) Several cases have suggested that this 60-day time period does not commence to run until the order denying rehearing. (See In re Richard D., 23 Cal. App. 3d 592, 594, fn. 1 (1972); In re J.R., 5 Cal. App. 3d 597, 601 (1970); In re Gary R., supra.)2
In the instant case, however, the referee‘s dispositional order was to remove the minor from the custody of his parents for camp community placement, an order which does not “become effective” without approval of a judge. (Former
The nature of a judge‘s “approval” pursuant to former
In much the same way that an order denying rehearing gives the necessary finality to a referee‘s order which becomes effective without approval of a judge, the order denying rehearing also supplies the necessary finality to the judge‘s approval of disposition under
We do not agree with the Attorney General‘s argument that this rule somehow gives the minor an unwarranted or illegitimate extension of time in which to appeal by applying for a rehearing. Respondent relies upon the statement in In re Timothy N., 48 Cal. App. 3d 862, 867 (1975), that “[t]he general rule is that unless the motion for rehearing involves entirely new, previously unlitigated issues, a party may not extend the time for appeal by moving for rehearing and attempting to appeal from the denial. (See 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 91, pp. 4098, 4099.)” That statement was not necessary to the court‘s ruling, however, since the appeal there was timely in any event and the court was only concerned that the appellant had misnamed the order appealed from in the notice of appeal. The “general rule” referred to and the cited authority concern a motion to vacate judgment in civil cases. The Attorney General‘s argument fails to take into consideration that an application for rehearing by a judge of a referee‘s order is a normal and integral part of the juvenile court proceedings, based upon the fact that under
Thus the concept that the time in which to appeal from the dispositional order is measured from the order denying rehearing does not depend, as both parties seem to assume, on whether the order denying rehearing is itself appealable. Thus respondent‘s reliance on the statement in In re Joe R., 12 Cal. App. 3d 80, 83 (1970), that an order denying rehearing is not appealable, is misplaced. We agree with the parties, however, that this statement is a source of possible confusion and should be clarified. (2) Several subsequent cases have made clear that, where the issue the appellant seeks to have reviewed is an alleged error in the actual process of rehearing, an order denying rehearing is appealable. (In re Edgar M., supra, 14 Cal. 3d 727, 740-741 (denial of rehearing must result by means of an affirmative review of the transcript by a judge, and not by operation of law); In re Damon C., 16 Cal. 3d 493, 496-497 (1976) (judge must have transcript of counsel‘s oral argument to referee); In re Randy R., 67 Cal. App. 3d 41, 43-44 (1977) (judge erroneously applied an appellate
But, where the appellant raises no such issue and merely seeks to review alleged errors by the referee in adjudication or disposition, the appellant is not actually appealing “from the order denying rehearing.” The inclusion of the order denying rehearing in the notice of appeal in such cases is merely so much boilerplate.4 In such circumstances the appellate court may either dismiss the purported appeal from the order denying rehearing (In re Joe R., supra; see Fowler v. Fowler, 126 Cal. App. 2d 496, 501 (1954)) or disregard such language and construe it as an appeal from the judgment. (In re Timothy N., supra, 48 Cal. App. 3d 862, 867.)
(1b) Respondent raises one more point. He argues that appellant should not have the benefit of this rule because appellant applied for a rehearing only of the adjudication order, and did not apply for rehearing of the dispositional order. Respondent argues that the pendency of a petition for rehearing of the adjudication order could not “extend” the time in which to appeal the dispositional order, as to which no rehearing was requested. We do not agree that the time period begins to run when the disposition occurs while an application for rehearing of the adjudication order is pending. If the rehearing were granted, the disposition order based on the referee‘s adjudication order could not continue to exist in limbo. (In re Anthony M., supra, 64 Cal. App. 3d 464, 469-470.) Appellant is entitled to review errors in the adjudication proceeding on appeal from the judgment. (In re Melvin S., supra, 59 Cal. App. 3d 898, 900.) For the reasons discussed above, the judgment of the juvenile court was not final for purposes of appeal until the order denying rehearing.
We conclude the notice of appeal was timely filed. We therefore need not consider the arguments and declarations submitted by the parties as to why the notice was not filed sooner.
Pursuant to its constitutional and statutory powers (
After July 1 the problem posed by the instant case would be governed by new rule 39(b) which provides: “(b) [Notice of appeal; time for filing] In the cases provided by law, an appeal from the juvenile court is taken by filing with the clerk of that court a written notice of appeal within 60 days after the rendition of the judgment or the making of the order or, in matters heard by a referee, within 60 days after the order of the referee becomes final under rule 1318(c). When an application for a judicial rehearing of a referee order is made and denied under rule 1319, the notice of appeal shall be filed within 60 days after service of the referee‘s order in accordance with rule 1317(b)(3), or within 30 days after the entry of the order denying the application, whichever time is greater. When a notice of appeal is received, the clerk shall proceed in accordance with rule 31.” (Cal. Rules of Court, rule 39 (eff. 7-1-77), excerpt from Judicial Council of Cal., Annual Rep. (1977) ch. 2, p. 125; italics added.)
Thus under the new rule the application for rehearing will extend the time to appeal by no more than 30 days, compared to 60 days under existing law. New rule 39(b) is thus analogous to rule 3, which governs the time limit for appeal in civil cases where there has been a motion for new trial or motion to vacate judgment which has been denied. This changes existing law because the analogy to rule 3 was rejected in In re J.R., supra, 5 Cal. App. 3d 597, 601.
ISSUE ON APPEAL
Turning to the merits, appellant raises only one issue on appeal. This case involves a residential burglary which occurred in Rowland Heights on April 12, 1976. Appellant was arrested for this burglary on April 13 at the home of David Dancy in Rowland Heights. At the sheriff‘s station appellant admitted his participation in the burglary with two other persons. (3a) Appellant contends that the confession should have been suppressed as the product of an illegal arrest, on the sole ground
(4) On the motion to determine whether there was a violation of
(3b) Deputy Sheriff Francis had information from several witnesses that appellant was observed at the scene of the burglary. He also had information there was a warrant for appellant as a runaway from camp. Several juveniles told Deputy Francis that they believed appellant was staying with David Dancy, who lived in the area. Around 5 p.m. the day after the burglary, Deputy Francis went to Dancy‘s house to learn if appellant was there. Although the deputy did not expressly testify he was in uniform, the record provides overwhelming evidence that he was.7
Deputy Francis knocked on the door, and a female subsequently identified as Darlene Dancy opened the door.8 Deputy Francis asked if David Dancy was at home. He then observed appellant sitting on a
Appellant contends there is no evidence that Deputy Francis identified himself and stated his purpose before the point at which he “step[ped] in slightly” to obtain a better look at appellant, and that therefore
When the door was opened by Darlene, appellant was just inside the doorway, only three feet away from the deputy. Deputy Francis immediately saw him and he could see Deputy Francis. (See People v. Baldwin, 62 Cal. App. 3d 727, 741 (1976) (as to defendant Cano).) As we have pointed out, it clearly appears that Deputy Francis was in uniform. This fact identified the officer to the occupants and dispensed with the need for a formal recitation of his identity. (People v. Bigham, 49 Cal. App. 3d 73, 80 (1975); see People v. Hayko, 7 Cal. App. 3d 604, 607-608 (1970).)
In People v. Hayko, supra, the court held that assuming the fact the officers were in uniforms might dispense with the need for an announcement of identity, it could not serve to satisfy the second requirement, announcement of purpose. Appellant argues there was no evidence Deputy Francis announced his purpose. This contention is contradicted by the following testimony:
“Q. Didn‘t you step into the front door slightly before you were invited in?
“A. Yes.
“A. No.” (Italics added.)
When considered together with the fact that Deputy Francis (1) had asked Darlene if appellant was present, and (2) had seen appellant and asked his identity from outside the door, this question and answer supports the inference that Deputy Francis stated his purpose for being there. Although the issue might have been clarified by more precise questioning, we hold the record sufficient when viewed in the light most favorable to respondent.
Appellant erroneously argues that such statement was completely negatived by the questions which followed:
“Q. What was your purpose for being there?
“A. To ascertain if [appellant] might be at the location.
“Q. And to arrest him, correct?
“A. If he was there, yes.
“Q. Did you ever state that, specifically, that you were there to arrest him?
“A. No.”
Appellant argues the officer thus conceded that he did not make a specific statement of his purpose. However, the question was limited to whether Deputy Francis announced he was going to “arrest” appellant. Deputy Francis stated his general purpose in broader terms, i.e., to see appellant. He had the right to seek out appellant and attempt to interview him (People v. Boone, 2 Cal. App. 3d 66, 69 (1969)) and we must assume in support of the judgment that his testimony that he had already explained his purpose for being there referred to his broader purpose.
Furthermore, the record supports a conclusion of substantial compliance with the requirement for announcement of purpose. (5) An express announcement is not required where the surrounding circumstances make the officer‘s purpose clear. (People v. Rosales, 68 Cal. 2d 299, 302 (1968); People v. Hall, 3 Cal. 3d 992, 997-998 (1971); People v. Bigham, supra at pp. 80-81; People v. Limon, 255 Cal. App. 2d 519, 522 (1967); People v. Vasquez, 1 Cal. App. 3d 769, 774-775 (1969).) (3c) Appellant‘s attempt to hide his face when he saw the officer at the door supports the inference that appellant “knew full well both the identity and the purpose of the callers.” (People v. Limon, supra.)
Appellant‘s effort to liken Deputy Francis’ slight step to a serious violation of
We conclude there was no violation of
As in In re Timothy N., supra, 48 Cal. App. 3d 862, 867, 871, we shall treat the notice of appeal as from the judgment.
The judgment is affirmed.
Kaus, P.J., and Hastings, J., concurred.
A petition for a rehearing was denied June 30, 1977, and on July 5, 1977, the opinion was modified to read as printed above. Appellant‘s petition for a hearing by the Supreme Court was denied August 5, 1977. Sullivan, J.,* participated therein. Bird, C.J., was of the opinion that the petition should be granted.