Filed 12/20/17 In re E.N. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Minor E.N. appeals a juvenile court order denying his motion to dismiss his dependency petitions and seal his records pursuant to Welfare and Institutions Code[1] section 786 and setting victim restitution under section 730.6. We find no abuse of discretion in the denial of his motion for relief under section 786, but agree that the restitution order must be reduced by $81. Accordingly, we direct the trial court to modify the amount of restitution and affirm in all other respects.

Factual and Procedural Background

In May 2008, based on the then 13-year-old minor’s admission to two counts of misdemeanor oral copulation with a person under 18 years of age (Pen. Code, § 288a, subd. (b)(1)), the Napa County juvenile court sustained a juvenile wardship petition, adjudged minor a ward of the court, and placed him in a residential treatment facility. E.N. was placed at Remi Vista Inc., in Redding, California, where he successfully completed sex offender treatment. In December 2011, his wardship was continued but he was returned to his mother’s care.

In August 2012, based on E.N.'s admission to one count of felony lewd conduct with a minor occurring in February 2012 (Pen. Code, § 288, subd. (a)), the Solano County juvenile court sustained a second juvenile wardship petition and committed E.N. to the California Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF). The court ordered the minor to register as a sex offender upon release, and imposed victim restitution in the amount of $1,782 to reimburse the restitution fund for mental health expenses for the victim and her guardian. In October 2012, Solano County accepted transfer of minor’s Napa County wardship.

On March 4, 2015, E.N. was discharged from DJF and returned to Solano County due to the statutory requirement that transitional services be provided prior to the upcoming expiration of the court's jurisdiction when E.N. would reach 21 years of age. The juvenile court terminated DJF jurisdiction, transferred jurisdiction to Solano County, placed minor on probation, and ordered E.N. to enroll in sex offender treatment and attend counseling, in addition to other conditions of probation. The court also ordered victim restitution in the amount of $10,530. E.N. was placed at Buddy's House group home in Marysville and timely enrolled in sex offender treatment at New Beginnings.

On June 24, 2015, the probation department recommended that E.N.'s probation be terminated unsuccessfully because he had not been able to complete sex offender treatment or pay the full amount of victim restitution prior to the expiration of juvenile court jurisdiction. The court followed the recommendation and terminated jurisdiction, checking the box on the preprinted order form that jurisdiction over the minor was terminated “unsuccessfully.” The court also ordered victim restitution in the amount of $10,530.

In a prior appeal, this court found that the designation of the termination of juvenile court jurisdiction as unsuccessful should be set aside and the matter remanded to determine whether E.N. satisfactorily completed his probation within the meaning of section 786. Section 786 provides that if a ward of the juvenile court “satisfactorily completes” probation, “the court shall order the petition dismissed” and “shall order sealed all records pertaining to the dismissed petition in the custody of the juvenile court, and in the custody of law enforcement agencies, the probation department, or the Department of Justice” (§ 786, subd. (a)). In addition, we found that the restitution order was not supported by the required documentation (Pen. Code, § 1202.4, subd. (f)(4)(B)) and remanded for a redetermination of the amount of restitution. (In re E.N., (July 26, 2016, A145623) [nonpub. opn.].)

On remand, the juvenile court issued an order striking without prejudice the designation of the termination of juvenile court jurisdiction as unsuccessful. Thereafter, E.N. filed a “Motion to Terminate Jurisdiction Successfully; Seal Records; Terminate Sex Offender Registration; and Objection to Restitution Amount.”

A hearing on the motion was held on January 24, 2017. The court denied E.N.’s motion to terminate jurisdiction successfully and seal his records under section 786. The court acknowledged that E.N had a “very short time period on which to be on probation” and that he “did many things very well. He reported. He was where he was supposed to be. He attempted to get a job, go to school.” He had not committed any new offenses and had not violated any terms of his probation. Nonetheless, the court found that E.N. had not satisfactorily completed the sex offender treatment program imposed as a condition of probation. The court explained, “The important issue to decide is whether [E.N.] to his very best ability under the circumstances, did he truly substantially comply with the Court ordered treatment . . . . [¶] If you look at the terms used by the treatment counselor, they include a . . . note that he just didn’t do the class he was supposed to. It looks like he was supposed to complete six of the drafts, read the drafts in two to three months. It sound[s] like a trivial thing in terms of everything else he did, but . . . he clearly did not make his best effort.” Ultimately, the court concluded that E.N.’s “marginal” performance in the sex offender treatment program did not amount to substantial compliance with the terms of probation.

Also, relying on records submitted by the California Victim Compensation Board of mental health services provided to the victim and her guardian, the court again imposed victim restitution in the amount of $10,530.[2]

E.N. timely filed a notice of appeal.

Discussion

1. The court did not err in denying E.N.’s motion for relief under section 786.

Under section 786, subdivision (c)(1), satisfactory completion of probation “shall be deemed to have occurred if the person has no new findings of wardship or conviction for a felony offense or a misdemeanor involving moral turpitude during the period of . . . probation and if he or she has not failed to substantially comply with the reasonable orders of supervision or probation that are within his or her capacity to perform.” A recent appellate decision explains that “[s]ubstantial compliance is not perfect compliance. Substantial compliance is commonly understood to mean ‘compliance with the substantial or essential requirements of something (as a statute or contract) that satisfies its purpose or objective even though its formal requirements are not complied with.’ ” (In re A.V. (2017) 11 Cal.App.5th 697, 709.) The court’s decision under section 786 is reviewed for an abuse of discretion. (Id. at p. 711.)

Here, the court found that E.N. failed to substantially comply with the term of probation requiring completion of a sex offender treatment program. Consistent with the statutory requirements, the court did not require actual completion, which appeared to have been impossible given the time restraints. Instead, the court evaluated E.N.’s performance to determine whether he had substantially complied, or completed the essential requirements of the treatment program that were within his capacity to meet. In reaching the conclusion that E.N. had not done so, the court reasonably relied on the treatment counselor’s evaluation of E.N.’s performance. According to the progress report submitted by the program, E.N.’s “participation in treatment program” was marked as marginal rather than satisfactory. The report also indicated that he had not completed the “program requirements/assignments.” The report explains, E.N. “appears to be making marginal progress in treatment. He has only attempted to read two drafts of his accountability paper in the last three months. He is expected to read a draft every two weeks and pass on average one paper per month.” While E.N. argues that the characterization of his performance as marginal was merely “a reflection of the fact that he could not complete the program within the time allotted,” the report does not support that assertion. The progress report indicates that the marginal evaluation was not based on his failure to complete the program but on his marginal performance while in the program.

Although the court based its conclusion on E.N.’s marginal performance in his treatment program, which it observed was based on his failure to exert his “best effort” to meet program expectations, the court was not insisting on perfection as the criterion for substantial compliance. In view of E.N.’s offenses, the court reasonably regarded the treatment program to be a critical component of his probationary terms. The program counselor indicated the expected number of assignments that E.N. could have completed in the time period that was available to him. He failed to complete the assignments that he was capable of completing, indicating a lack of effort. E.N.’s failure to apply his best efforts resulted in the marginal evaluation, which the court reasonably regarded as less than substantial compliance.

The court did not, as E.N. suggests, rely on his failure to make full restitution as a basis for denying the section 786 motion. Although the court noted that E.N. could have made a better effort with regard to restitution, the court clearly stated that it was denying the requested relief “not because of any financial obligations but because of the failure to complete what is in the court’s mind the most basic, essential term to his rehabilitation which was that treatment.”

We recognize, as did the trial court, that E.N.’s performance while on probation was in many respects satisfactory, even commendable. The record provides reason for optimism that E.N. will pursue a constructive and crime-free adulthood. Nonetheless, we cannot say that the trial court abused its discretion in deeming his marginal performance in the treatment program to preclude a finding that he had substantially complied with the terms of his probation.

2. With limited modification, the restitution order shall be affirmed.

Initially, E.N. argues that the restitution order must be reversed because mental health expenses are not authorized “economic losses” under section 730.6, subdivision (h).[3] We rejected this argument in E.N.’s prior appeal. We noted that in In re M.W. (2008) 169 Cal.App.4th 1, 6, the court held that a victim’s mental health expenses were economic losses under section 730.6, subdivision (h). We acknowledged counsel’s “lengthy and thoughtful argument” as to why this case was wrongly decided but concluded that “until the Supreme Court declares otherwise, we adhere to the view that mental health services ‘are direct costs to the victim and are recoverable under the statutory authority providing for full recovery of all economic losses.’ ” (In re E.N. (July 26, 2016, A145623) [nonpub opn.].) We see no basis to diverge from that conclusion at this time.

E.N. also argues that even if mental health expenses are recoverable, the court erred in ordering restitution for losses incurred for the services provided to the victim’s guardian. There is no dispute that under section 730.6, subdivision (j) as amended in 2016, the victim’s guardian would be eligible for restitution as a derivative victim.[4] E.N. argues, however, that at the time the services were rendered—between 2012 and 2014—section 730.6, subdivision (j) defined a “victim” entitled to restitution to include only “[t]he immediate surviving family of the actual victim,” so that the guardian was not then a derivative victim. (Stats. 2009, ch. 454, § 2.) However, as we noted in our prior decision, in In re Scott H. (2013) 221 Cal.App.4th 515, 522, the court held that despite the more restrictive language of section 730.6, subdivision (j), the Victims Bill of Rights in the California Constitution requires that a victim’s family member or guardian be treated as derivative victim for purposes of restitution in juvenile proceedings.[5] E.N. argues that the 2016 amendment to section 730.6, which expressly added derivative victims to subdivision (j), establishes that those derivative victims were not entitled to restitution prior to the amendment. To the contrary, the amendment was clearly intended to bring the text of section 730.6, subdivision (j), in line with the constitutional requirement. (Sen Rules Com. Office of Senate Floor Analyses, analysis of Sen. Bill No. 651 (2015-2016 Reg. Sess.) as amended June 23, 2015, pp. 4-7.) In all events, the constitutional provision is controlling.

Finally, E.N. argues that the amount of the restitution order should be reduced by $81 because the claim submitted to the court overstated the services provided to the minor by one hour. Contrary to the People’s argument, E.N.’s challenge to the sufficiency of the evidence has not been forfeited. (In re K.F. (2009) 173 Cal.App.4th 655, 660.) We shall order the matter corrected in the trial court.

Disposition

The trial court is directed to reduce the amount of the restitution order by $81. As modified, the order denying relief under section 786 and setting restitution is affirmed.

Pollak, J.

We concur:

McGuiness, P.J.

Jenkins, J.