In Re Ks

5 Cal.Rptr.3d 39 (2003) 112 Cal.App.4th 118 In re K.S., a Person Coming Under the Juvenile Court Law.

The People, Plaintiff and Respondent,

v.

K.S., Defendant and Appellant.

No. D040018. Court of Appeal, Fourth District, Division One.

September 15, 2003. Law Offices of James J. Warner, James J. Warner, San Diego, and James S. Brasher, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

HUFFMAN, Acting P.J.

In this case K.S. (Philip), a 16> year old, was found to have violated the Poway juvenile curfew ordinance (the ordinance) (Poway Muni.Code, §§ 9.24.010 et seq.) and fined $20. Philip appealed to this court, contending the ordinance is unconstitutionally overbroad and vague, and that insufficient evidence supports the juvenile hearing officer's finding he violated the ordinance. We asked the parties for supplemental briefs addressing the question of whether Welfare and Institutions Code[1] section 800 provides Philip the right to appeal to this court. After reviewing the supplemental briefing and pertinent law, we conclude the matter is not appealable and this appeal must be dismissed.

BACKGROUND

Philip was arrested and detained for curfew violation on November 1, 2001, while traveling in Poway accompanied by a 21-year-old relative in a car driven by a friend who was stopped for speeding after [40] 11:00 p.m. The arresting officer filed an affidavit and application for filing of a juvenile court petition, alleging Philip came under the provisions of sections 601 and 602. No petition under either section ever issued or was filed with the juvenile court. Rather the matter proceeded by way of citation to Department 11 of the Informal Juvenile and Traffic Court for hearing before a juvenile hearing officer.

Before the informal hearing on the citation, Philip's retained counsel filed a motion to dismiss the citation, challenging the constitutionality of the ordinance. At the hearing, the court denied the motion and heard testimony from the arresting officer. Thereafter, the court denied another motion to dismiss the citation, this time brought on grounds no violation of the ordinance had been shown because Philip had been with a responsible adult at least 21 years of age at the time of his arrest. The court denied the motion.