In re Anthony M.

Filed 6/25/07 In re Anthony M. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Margaret A. Powers, Judge. Affirmed.

Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.

Minor pled guilty to one count of vandalism and the trial court placed him on Success probation. At a subsequent hearing, the court removed minor from Success probation and placed him on regular probation. After minor failed to fulfill the conditions of his probation and failed to appear at a court-ordered hearing, the trial court reinstated minor on Success probation. On appeal, minor contends the modification of his probation terms without the filing of a formal petition infringed upon his constitutional and statutory rights to due process, specifically, the requirements of notice and hearing. We conclude the proceedings below afforded minor statutorily sufficient notice and hearing such that the courts modification of his terms of probation was proper and we, therefore, affirm the judgment below.

I. FACTUAL AND PROCEDURAL BACKGROUND

Minor pled guilty to one count of vandalism for causing under $400 worth of damage to his girlfriends car when he set it on fire and threw a rock through its window. (Pen. Code,  594, subd. (b)(2)(A).) On May 2, 2006, the court declared minor a ward of the court and, pursuant to the parties stipulation and the probation officers recommendation, placed him on Success probation. In addition to normal terms and conditions of probation, Success probation is a short-term program (up to 120 days) that imposes intensive supervision and services. The goal is to interrupt negative behavior and redirect youthful offenders toward a more positive and law-abiding lifestyle through frequent contact with the Probation Officer, and through treatment-specific programs based on individual needs. (http://www.co.san-bernardino.ca.us/probation/frames.asp? Target=/probation/bureau.asp?bureau=ccb (as of June 25, 2007).) The Success probation conditions were listed as items 30 through 34 of minors terms of probation. Term 4 required minor to notify his probation officer of any intended change of address. Term 19 required minor to complete 40 hours of unpaid community services as directed by the probation officer and to submit proof of completion of such services. Minor was released to the custody of his mother to be maintained in her home.

In an appearance review memorandum dated July 25, 2006, the probation officer noted that minor had completed his counseling/anger management course, drug tested negatively, and matriculated at the local community college; nonetheless, the officer recommended he remain on Success probation until he completed the community service he had yet to begin. At the appearance review hearing on July 31, 2006, the People urged continuation of Success probation on the same basis as the probation officer. However, the People suggested that an informal appearance review, necessitating only the attorneys presence, be scheduled in the future solely for a determination of whether minor had completed his community service. If so, the People then indicated such a finding would permit it to stipulate to minors release from Success probation to normal probation. Defense counsel noted minor intended to begin his community service today and advocated release from Success probation. The court removed minor from Success probation, placing him on regular probation, but scheduled an attorneys only review in 30 days to determine his progress towards his community service. By removing minor from Success probation, the court struck minors probationary terms 30 through 34.

On August 29, 2006, the probation officer prepared an appearance review memorandum in which he asserted that minor had yet to commence his community service hours, but made no recommendation regarding a change in his probationary status. On August 31, 2006, noting that minor had failed to start his community service, the court continued the matter to September 28, 2006, for a hearing requiring minors presence.

On September 19, 2006, the probation officer prepared yet another appearance review memorandum in which he asserted that minor had again failed to commence his court-ordered community service. The probation officer also related the steps he had taken, pursuant to the courts previous order, to notify minor and his mother of the hearing scheduled for September 28, 2006. The officer attempted to contact minor and his mother at their residence on September 12, 2006, but neither were home. Sometime thereafter, minors mother contacted the probation officer by phone and informed him that minor had not completed any of his community service hours. During that conversation, the officer notified her of the date and purpose of the scheduled hearing. Mother informed the officer that while minor still lived with her, he spent a lot of time at his girlfriends home. Mother did not know the address of minors girlfriends residence. Despite additional efforts, the officer was unable to locate minors girlfriends address. Ultimately, the officer recommended that a bench warrant be issued for minors arrest should he fail to appear at the scheduled hearing and, regardless of his appearance, that Success probation be reinstated.

Minor failed to appear at the hearing on September 28, 2006, and defense counsel noted that he had not had any contact with minor. The court issued a bench warrant for minors arrest.

On October 8, 2006, the probation officer prepared a detention hearing memorandum subsequent to minors arrest that day for fleeing from a traffic stop. The officer noted minor acknowledged missing his court hearing, but indicated he had done so because he had no transportation since his mothers vehicle had been impounded. Minor stated he was now living with his girlfriend. However, minor stated he had now completed 32 hours of his assigned community service. Minors mother reported that minor had missed his court appearance because she was in the hospital having surgery at the time. The officer noted that both minors attorney and his mother had been notified of the date, time, location, and purpose of the detention hearing. The officer recommended minor be detained in juvenile hall because his mother was not effectively controlling him.

At the detention hearing on October 11, 2006, defense counsel requested minors release on his current probation conditions. He contended that any action taken to impose harsher conditions, such as reinstituting Success probation, without the filing of a formal petition, would be a violation of minors right to due process. The People noted that minor had still failed to provide any evidence of his completion of any of his court-ordered community service and requested the court reimpose the Success probation conditions. Both the People and the probation officer maintained that the court could modify probation conditions upon their recommendation without the filing of a violation petition. Ultimately, the court ordered minor placed on Success probation and reinstated terms 30 through 34 of his probation conditions.

II. DISCUSSION

A. Constitutional Challenges

Minor, citing In re Arthur N. (1975) 48 Cal.App.3d 359, 363, contends that modifications of juvenile court dispositional orders are subject to the constitutional due process requirements announced in People v. Vickers (1972) 8 Cal.3d 451 (Vickers). As such, he maintains the notice and hearing which culminated in the reinstitution of the Success probation conditions were insufficient to meet those procedural requirements.

In Vickers, the California Supreme Court adopted and applied the procedural due process requirements elucidated by the United States Supreme Court in Morrissey v. Brewer (1972) 408 U.S. 471 [92 S.Ct. 2593, 33 L.Ed.2d 484], to revocation of probation proceedings in California. (Vickers, supra, 8 Cal.3d at pp. 456-458.) Among these were the rights to written notice of the claimed violations and a hearing at which the probationer could present evidence, testify, and cross-examine witnesses against him. (Id. at pp. 456-457.)

Defendant cites In re Arthur N., supra, 48 Cal.App.3d at page 363, for the proposition that Vickerss pronouncements are likewise applicable to modifications of juvenile delinquency dispositions; however, In re Arthur N. is no longer citable as published law because the California Supreme Court granted review in that case on July 16, 1975. (In re Arthur N. (1976) 16 Cal.3d 226; Cal. Rules of Court, rules 8.1105(d)(1), 8.1115(a).)^[1] The California Supreme Courts resulting opinion in its review of that matter in no way dealt with the applicability of Vickers to modification of juvenile delinquency dispositions; rather, it was concerned with the applicable standard of proof in a hearing on a minors revocation of probation resulting in incarceration. (In re Arthur N., supra, at p. 228.) Here, the trial court modified minors terms of probation, it did not revoke them. Likewise, that modification did not result in minors incarceration. Thus, to the extent that Vickers applies to modifications of juvenile dispositions, it is inappositely applied in the instant case.

B. Statutory Challenges

Minor contends that the failure of the People to file a formal petition as required by statute renders the trial courts imposition of Success probation improper.

Any order made by the court in the case of any person subject to its jurisdiction may at any time be changed, modified, or set aside, as the judge deems meet and proper, subject to such procedural requirements as are imposed by this article. (Welf. & Inst. Code,  775.) No order changing, modifying, or setting aside a previous order of the juvenile court shall be made either in chambers, or otherwise, unless prior notice of the application therefor has been given by the judge or the clerk of the court to the probation officer and prosecuting attorney and to the minors counsel of record, or, if there is no counsel of record, to the minor and his parent or guardian. (Welf. & Inst. Code,  776.) Likewise, Welfare and Institutions Code section 778 requires that any interested party may file a petition to modify any previous juvenile court order and that the court may so order the modification only after a hearing on the matter.

Rule 5.570 sets forth the specific contents required of a petition for modification of a juvenile court order including, among other things, verification; the courts name; the case title and number; the minors name, address, and age; the parent or guardians name and address; the proposed change of circumstance; and the proposed change of order. (Rule 5.570(a)(1-10).) However, it also requires that such a petition be liberally construed in favor of its sufficiency. (Ibid.) The filing of a formal petition for modification of a juvenile court dispositional order is not required where the action sought essentially maintain[s] the status quo established by the original order in respect to responsibility for the minors custody . . . . (In re Glen J. (1979) 97 Cal.App.3d 981, 985.)

Here, no document titled petition seeking modification of minors probation conditions appears in the record. Nonetheless, the record does contain sufficient evidence of oral and written notice to the minor and his mother to satisfy the liberal requirements of rule 5.570. At the initial dispositional hearing on May 2, 2006, minor, while represented by counsel, was informed that he was responsible for performing 40 hours of community service and that the court and the probation officer would periodically check to ensure his compliance. At the appearance review hearing held on July 31, 2006, the court explicitly reiterated to minor the imperative of his commencement of the community service requirement and the potential negative ramifications if he did not. Minors counsel appeared at each hearing in the case; thereby demonstrating minor was, at least vicariously, aware of the nature of the allegations against him and the prospective deleterious consequences to him. In the probation officers third memorandum, he detailed the lengths to which he went to inform minor and his mother of the pending hearing and what it concerned. These efforts included visiting the home of minor and mother, speaking with mother on the phone, and attempting to identify minors girlfriends address. The probation officer cannot be faulted here for not reaching minor directly when he, with mothers apparent permission, violated the conditions of his probation by not living with mother and not notifying the probation officer of his change of address, thereby making notification difficult, if not, impossible.

Additionally, the probation officer also prepared four separate memoranda which detailed minors failure to fulfill the conditions of his probation. One memorandum urged continuation of Success probation as a consequence of minors noncompliance, another advised reinstatement, and a third advocated incarceration. All of the memoranda contained most of the information required by rule 5.570 and all were filed with the court. Thus, the oral and written communications to minor, his mother, and his counsel were sufficient to meet the liberal requirements of rule 5.570.

Moreover, the reinstitution of Success probation merely maintained the status quo established by the original order in respect to responsibility for the minors custody . . . , such that the filing of a formal petition was not required. (In re Glen J., supra, 97 Cal.App.3d at p. 985.) Here, both the original dispositional order and the order of July 31, 2006, placed physical custody of minor with his mother. The order reinstating Success probation did not change this; minor was still placed in the physical custody of mother. Furthermore, as the People duly note, if a formal petition is required prior to the modification of juvenile probationary terms, then the courts order of July 31, 2006, in which it removed minor from Success probation and placed him on normal probation, was also in error. No formal petition for modification had been filed prior to that order either; thus, by minors own reasoning, he should never have been removed from Success probation in the first place.

Finally, minors contention that he was denied a hearing to contest the factual allegations on which the modifications were made is belied by the record. Here, minor was afforded a hearing on October 11, 2006, specifically to address the allegations against him. As noted above, minor and his counsel knew prior to the hearing the allegations against him and the possible repercussions. At that hearing, minor personally explained to the court why he had failed to appear at the prior hearing. Likewise, minors counsel made argument to the court. Although minors counsel did not call any witnesses or question the probation officer, there is nothing in the record to indicate he was prohibited from doing so. Indeed, nothing in the record indicates minor was prevented from submitting any evidence to the court that he had, in fact, commenced or completed his community service obligation. Thus, minor was afforded a statutorily sufficient hearing prior to the courts order modifying the terms of his probation.

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Ramirez

P.J.

/s/ Miller

J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

^[1] All further references to rules are to the California Rules of Court.