In re Devon> R.

 

 

 

 

 

 

 

 

Filed 6/10/13  In re Devon
R. CA4/3

 

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 THREE

 

 
>

In re DEVON R., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,         Plaintiff and Respondent,               v.   DEVON R.,         Defendant and Appellant.	G045776            (Super. Ct. No. DL037806)            O P I N I O N

 

                        Appeal from a judgment
of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, David A. Hoffer and Jacki C. Brown, Judges.  Affirmed.

                        Suzanne G. Wrubel, under
appointment by the Court of Appeal, for Defendant and Appellant.

                        Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Steve Oetting and Vincent P. LaPietra,
Deputy Attorneys General, for Plaintiff and Respondent.

 

*                *                *

 

Minor
Devon M. appeals a true finding in juvenile court of
misdemeanor battery (Pen. Code, § 242), which resulted in the court
placing Devon on probation for six months.  Devon claims he
successfully completed a six-month period of informal supervision under Welfare
and Institutions Code sections 654 and 654.2.href="#_ftn1" name="_ftnref1" title="">[1]  According to Devon,
this fact necessitated the dismissal of the pending section 602 petition prior
to his trial.  We disagree with Devon’s
characterization of the record and affirm the judgment.  Devon did not
successfully complete his six-month supervision period and the court therefore
was not obligated to dismiss the petition.

 

FACTS

 

The
underlying incident occurred aboard a bus on February 11, 2010. 
Jane Doe, 15 at the time of the incident, was returning home from
school.  She was sitting next to a
classmate named Ricardo.  Devon,
14 at the time of the incident, was also on board the bus.  Devon had previously
harassed Jane Doe at school (i.e., calling her derogatory names, using sexually
explicit language).  Devon
grabbed Ricardo’s hand.  According to
Jane Doe, Devon placed Ricardo’s hand on Jane Doe’s
breast and at the same time squeezed Jane Doe’s breast.  According to Devon, he
pulled on Ricardo’s hand such that when Ricardo struggled to get free his hand
made contact with Jane Doe’s breast.  Devon
denied touching or squeezing Jane Doe’s breast.

A
petition to declare Devon a ward of the court was filed
in August 2010.  The petition included
only one count — sexual battery
pursuant to Penal Code section 243.4, subdivision (e)(1).

On
August 17, 2010, the court
(acting pursuant to the authority of § 654.2 and with the consent of Devon)
placed Devon on a program of informal probation pursuant
to section 654 for a period not to exceed six months.  The court described its order to Devon
as “a diversion program” that “will give you a chance to earn dismissal in six
months.”  The conditions included
completion of 40 hours of community service, completion of a legal awareness
program, participation in sex awareness and boundaries counseling, no contact
with Jane Doe (other than the provision of a letter of apology to the probation
department), consistent school attendance, compliance with a curfew, not riding
the bus, and not violating any laws.  The
court indicated that if Devon fulfilled the terms of
probation, the petition would be dismissed. 
No restitution was requested at this hearing.  The court set a follow up hearing for February 17, 2011.

Precisely
six months later, the court held the scheduled hearing.href="#_ftn2" name="_ftnref2" title="">[2]  The probation department’s report recommended
dismissal of the petition and termination of informal probation based on Devon’s
compliance with “most of his court orders.” 
Devon was not in compliance with at least two of
his conditions, however.  Devon
was arrested in January 2011 for possession of marijuana; at the time of the
arrest, he was breaking curfew.  The
probation report indicated “restitution has been set at zero, as there was no
response from the victim.”

The
court did not dismiss the petition on February
17, 2011.  Instead, the court
continued the program of supervision until March 22, 2011.  The
court added a new condition, namely that Devon pay
restitution to Jane Doe as determined by the probation department.  Referencing Devon’s January 2011 marijuana
arrest, the court indicated Devon needed to “take[] care of” his “ticket” at a
scheduled March 3 court date, although the court’s comments were ambiguous as
to whether this was a necessary precondition to dismissing the petition.  During an unreported conference in chambers,
Devon’s attorney objected to the continuance of the supervision period and the
inclusion of an additional term of paying restitution.  Devon’s attorney also asked the court to
dismiss the petition.

On
March 14, 2011, a restitution order in the amount of $1,377.88 was entered by
the court.  Devon was ordered to pay this
amount to Jane Doe.  The order stated
this amount consisted of medical expenses and mileage reimbursements.  The order indicated that a hearing contesting
the amount of restitution could be requested by Devon prior to May 17,
2011.  The probation department’s report
for the March 22 hearing recommended an additional continuance of the probation
period to allow Devon time to comply with the restitution order.

On
March 22, 2011, the court continued the hearing to April 19, 2011, and
continued the program of informal probation. 
Counsel for Devon disputed the amount of restitution sought by Jane Doe
and requested additional information as to the basis for the amount.

At
the April 19 hearing, Devon again argued it was improper to impose a
restitution requirement at all after Devon had already completed his six months
of informal supervision.  Devon also
claimed Jane Doe had not suffered any injury and she therefore was not entitled
to any restitution.  The court rejected
Devon’s motion to dismiss the petition. 
The court stated its belief that “terms and conditions can be added” to
an informal supervision program.  The
court offered Devon the opportunity to withdraw his consent to participating in
the program of informal supervision. 
Devon withdrew his consent and the matter was set for trial.  The court vacated the restitution order based
on Devon’s withdrawal of consent to the informal supervision process.

After
a trial, the court found beyond a reasonable doubt that “a simple misdemeanor
battery occurred” pursuant to Penal Code section 242.  The court sustained the petition for the
lesser included offense but not the charged offense.  The court ordered that Devon be declared a
“non ward” of the court and placed him on probation for six months.  One term of probation was the payment of
restitution to Jane Doe.  Devon and Jane
Doe ultimately stipulated to a restitution payment of $1,000.

 

DISCUSSION

 

“If
a petition has been filed by the prosecuting attorney to declare a minor a ward
of the court under Section 602, the court may, without adjudging the minor a
ward of the court and with the consent of the minor and the minor’s parents or
guardian, continue any hearing on a petition for six months and order the minor
to participate in a program of supervision as set forth in Section 654.  If the probation officer recommends
additional time to enable the minor to complete the program, the court at its
discretion may order an extension. 
Fifteen days prior to the final conclusion of the program of supervision
undertaken pursuant to this section, the probation officer shall submit to the
court a followup report of the minor’s participation in the program.  The minor and the minor’s parents or guardian
shall be ordered to appear at the conclusion of the six-month period and at the
conclusion of each additional three-month period.  If the
minor successfully completes the program of supervision, the court shall order
the petition be dismissed.  If the
minor has not successfully completed the program of supervision, proceedings on
the petition shall proceed no later than 12 months from the date the petition
was filed.”  (§ 654.2, subd. (a),
italics added.)

Devon
does not argue it was improper per se under sections 654 and 654.2 to impose a
restitution requirement on a minor participating in a program of
supervision.  (See § 654.6; >Charles S. v. Superior Court (1982) 32
Cal.3d 741, 747-749 [restitution as part of § 654 probation]; >In re C.W. (2007) 153
Cal.App.4th 468, 471-472 [restitution as part of § 654.2 informal
supervision].)  And it is worth
emphasizing that any program of supervision requires “the consent of the minor
and the minor’s parents or guardian . . . .” 
(§ 654.2, subd. (a).)  Devon
ultimately withdrew his consent to the informal supervision period based on the
imposition of a restitution requirement.

Instead,
relying on the language of section 654.2, subdivision (a), italicized above,
Devon claims the court was required to dismiss the section 602 petition on
February 17, 2011, rather than extending the period of section 654.2
supervision and simultaneously adding the restitution condition.  (See In
re Adam D. (1997) 56 Cal.App.4th 100, 103 [“if the program of informal
supervision under section 654.2 is satisfactorily completed, the petition must
be dismissed”].)  Had the court dismissed
the petition in February 2011, Devon would not have suffered his battery
conviction, the ensuing six months of probation, and the restitution
order.  (See In re Adam R. (1997) 57 Cal.App.4th 348, 352 [“the purpose of
the . . . informal supervision program is to avoid a true finding on criminal
culpability which would result in a criminal record for the minor”].)

The
primary problem with Devon’s argument is that (despite the probation
department’s recommendation to dismiss the petition) Devon had >not successfully completed his period of
supervision by February 17, 2011.  One
month before the February 17 hearing, Devon broke his curfew and was arrested
for possession of marijuana.  “If the
minor has not fulfilled the conditions by the end of the six-month period the
court may extend the period of informal probation for the minor to do so.”  (In re
C.W., supra, 153
Cal.App.4th at p. 472.)  Although
the court was concerned with setting restitution as an additional condition of
Devon’s section 654.2 supervision at the February 17 hearing, the court also
cited Devon’s pending marijuana court date as an issue to be taken care of
(along with the new restitution condition). 
Devon’s failure to successfully complete his program of supervision
justified, on its own, the court’s refusal to dismiss the petition on February
17, 2011.  For the same reason, Devon’s
contention that he detrimentally relied on the court’s promise to dismiss the
petition rings hollow.  Devon did not
live up to the conditions of his six-month supervision period.  He was not entitled to dismissal of the
petition on February 17.  Devon was
provided with the opportunity to complete his period of informal probation and
obtain dismissal by paying restitution to Jane Doe.  He refused to do so.

Given
our determination that the court was not required to dismiss the petition in
February 2011, the next question is whether the court had discretion to add a
condition to the supervision period (i.e., the order to pay restitution) at the
February hearing.  There is no language
in sections 654 or 654.2 explicitly authorizing modification of the terms of
supervision.  (Cf. Pen. Code,
§ 1203.1, subd. (j) [“should the probationer violate any of the terms or
conditions imposed by the court in the matter, it shall have authority to
modify and change any and all the terms and conditions”].)  But, more generally speaking, a juvenile
court has broad discretion in fashioning its probation orders, including orders
changing, modifying, or setting aside previous orders.  (See In
re Luis F. (2009) 177 Cal.App.4th 176, 188-190; § 775 [“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”].) 

Under
the circumstances of this case, we conclude the court acted within its
discretion when it added a restitution condition to the extended section 654.2
supervision period.  The court inquired
at the beginning of the case whether restitution was requested.  Because Jane Doe did not come forward with a
restitution request until after the original conditions of supervision were
entered, the court did not include an order to pay restitution among the
original probation conditions.  But at
the earliest available opportunity, the court added a restitution condition and
order specifying the amount of restitution owed to Jane Doe.  As explained above, Devon was not entitled to
dismissal of the petition prior to the imposition of the restitution
condition.  The court properly revoked
the restitution order when Devon refused to consent to its imposition as part
of the extended period of supervision. 
Devon then received the process due to him (i.e., a trial on the merits
of the petition).  Certainly, it would
have been preferable had restitution issues been settled earlier in the
process, but we find no reversible error.href="#_ftn3" name="_ftnref3" title="">[3]

 

DISPOSITION

 

The judgment is affirmed.

 

 

 

                                                                                    IKOLA,
J.

 

WE CONCUR:

 

 

 

RYLAARSDAM,
ACTING P. J.

 

 

 

MOORE, J.