In re S.K.

Filed 5/7/07 In re S.K. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

The juvenile court (1) sustained allegations that S.K. (appellant) committed a misdemeanor battery and (2) declared him a ward of the court. (Pen. Code,  243, subd. (d); Welf. & Inst. Code,^[1] 602.) The juvenile court placed appellant on formal probation for a maximum of one year with conditions. On appeal, appellant contends that his Fourteenth Amendment and due process rights were violated when the juvenile court rescinded its informal probation order and ordered formal probation. Also, appellant claims that the juvenile court erred in imposing as a condition of probation that he refrain from associating with people who are known to use, possess or deal drugs. We reverse the juvenile courts order rescinding informal probation, declaring appellant a ward and ordering formal probation and we remand for further proceedings. We also find that the probation condition is invalid.

I. FACTS

On March 8, 2006,^[2]appellant and his Berkeley High School classmate R.H. experienced a heated exchange while using the school bathroom. The exchange began when appellant threw water on R.H. while he was urinating. Appellant made remarks about R.H.s ethnic background, causing R.H. to choke on the juice he was drinking, expelling some of it on appellant. Appellant took offense to this and forced R.H. against the bathroom wall. R.H. escaped appellants grasp and ran through the schools corridors, but appellant caught up with R.H. and dragged him outside of the school.

While outside, appellant and R.H. fist fought each other until they heeded a teachers demand to stop the fight. For a moment, both appellant and R.H. refrained from using force against each other, but, as R.H. bent over to pick up his hat, appellant kicked R.H. in the face. R.H. was knocked unconscious and regained consciousness hours later in the hospital, having suffered a lacerated lip and dental damage.

The next day, Officer Frank Onciano of the Berkeley Police Department interviewed appellant. Onciano issued Miranda rights (see Miranda v. Arizona (1966) 384 U.S. 436) to appellant and appellant waived his rights, admitting to kicking R.H. in the face. Onciano arrested appellant and he was detained at the Alameda County Juvenile Hall for four days.

The Alameda County District Attorney filed a petition under section 602, alleging that appellant committed a battery against R.H., causing infliction of serious bodily injury. (Pen. Code, 243, subd. (d).) At the detention hearing, the juvenile court requested that the probation department prepare a section 654.2^[3]report and, in the meantime, ordered appellant on home supervision. In the home supervision update report, the probation officer found appellant to be a polite, engaging, and respectful young man, in compliance with all aspects of his Home Supervision Program. The officer also stated he received nothing but total cooperation from the minor and his family . . . .

On March 27, the juvenile court placed appellant on nonwardship informal probation pursuant to section 654.2 after the probation department issued a favorable 654.2 report. At this proceeding, the juvenile court also ordered a hearing for May 8 to determine restitution and receive a progress report. At that hearing, the People submitted the victims restitution report, amounting to a demand for over $9,000 in victim restitution. The juvenile court continued the hearing for further investigation, concluding that if the restitution amount was valid, appellant would not qualify for informal probation. Once the amount was verified and it was apparent appellant and his family did not have the means to pay it, the juvenile court rescinded informal probation because, pursuant to section 654.3, subdivision (g), victim restitution exceeding $1,000 presumptively eliminates a minors eligibility for informal probation. Thereafter, the juvenile court ordered a jurisdictional hearing on the wardship petition.

On June 29, at the conclusion of the jurisdictional hearing, the juvenile court found the battery charge to be true beyond a reasonable doubt. At the dispositional hearing, the juvenile court placed appellant on formal probation with additional in-home terms and conditions and ordered him to pay $7,503.78 in victim restitution.

II. DISCUSSION

A. Rescission of Informal Probation

Appellant contends that the juvenile court erred in rescinding informal probation because it did so based on his inability to pay restitution. The People argue that the juvenile court correctly rescinded the informal probation because the victim restitution exceeded statutory bounds.

If a section 602 petition has been filed, the juvenile court may grant a minor informal probation under section 654.2. In such a case, the juvenile court may refrain from adjudging the minor a ward of the court and 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.^[4] ( 654.2, subd. (a).) Section 654.2 informal probation is significant because the petition must be dismissed [i]f the minor successfully completes the program of supervision . . . . (Ibid.; In re Adam R. (1997) 57 Cal.App.4th 348, 353.) Thus, the informal supervision program ensures a minor that a juvenile court will not tarnish his or her criminal record with a sustained allegation. (In re Adam R., supra, 57 Cal.App.4th at p. 353.) However, under section 654.3, [a] minor is presumptively ineligible for informal supervision in certain specified circumstances (Kody P. v. Superior Court (2006) 137 Cal.App.4th 1030, 1033, fn. 2), including where a petition alleges an offense involving more than $1,000 in victim restitution ( 654.3, subd. (g)). This presumption may be overcome in an unusual case where the interests of justice would best be served and the court specifies on the record the reasons for its decision . . . . ( 654.3.)

The hearing on the issue of informal probation did not consider presumptive ineligibility or the interests of justice exception. Additionally, the probation department found appellant to be well qualified for informal probation. The probation department noted that [appellant] and his family have been exceptionally compliant and very concerned about following their obligations. After granting appellant informal probation at the March 27 hearing, the lower court assured appellant that if [he] complete[d] all the terms and conditions of this probation, the petition will be dismissed. At that same hearing, the court continued the case until May 8 for a restitution determination, at which point the judge never mentioned the possibility that the juvenile court would rescind informal probation if the restitution was too high. In fact, the court indicated that it would set a hearing only if appellant had a problem with the accuracy of the restitution amount. Thus, the courts actions were irregular because, prior to determining the matter of restitution, it granted informal probation with unconditional assurances that the petition would be dismissed if appellant adhered to the program. As it turned out, the disposition was conditioned on the outcome of the restitution determination, but this condition was not apparent or disclosed at the time.

After over a month of informal probation, the probation department found that appellant was in compliance with the informal probation order and recommended that the court continue the order. In support of this conclusion, the probation department noted that appellant had completed 65 hours of community service by May 3 and enrolled at Oakland High School by May 4.^[5] However, appellants situation changed at the May 8 restitution hearing, when restitution was determined to exceed $1,000. At this hearing, the juvenile court noted that it would have to rescind informal probation if the amount could not be reduced or paid off within the six-month informal probation period, admitting that [p]erhaps we should have gotten this restitution piece done before we went forward with the informal [probation]. The court continued the matter to June 6.

At that hearing, appellants attorney stated that appellant and his family would not be able to pay the restitution amount within six months. The court never invited briefing on the interests of justice exception or inquired into appellants ability to pay the restitution amount. Rather, contrary to the probation departments favorable reports, the lower court proceeded to rescind the informal probation and set a jurisdictional hearing not because appellant failed to involve himself in the informal probation program in a positive way (see 654), but because the court failed to consider the matter of restitution at the appropriate procedural juncture.

Given these procedural irregularities, which veered substantially from the statutory framework detailed in sections 654.2 and 654.3, coupled with appellants success on the informal probation program, we reverse the subsequent orders on the section 602 petition and remand for a hearing on the interests of justice exception pursuant to section 654.3.

B. Probation Condition

Appellant contends that the lower court erred in conditioning his formal probation on refraining from associating with anyone [he] know[s] to use, deal or possess illegal drugs. He reasons that the condition is contrary to California precedent and violates his constitutional right to freedom of association. The People counter that the juvenile court properly imposed the disputed condition because it was not overbroad and would serve to safeguard appellant from future criminality.

On appeal, we review the juvenile courts exercise of discretion under the abuse of discretion standard. The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. [Citation.] (Walker v. Superior Court (1991) 53 Cal.3d 257, 272.) Furthermore, a juvenile courts discretionary judgment in setting probation conditions will not be disturbed in the absence of manifest abuse. (In re Christopher M. (2005) 127 Cal.App.4th 684, 692.)

Juvenile courts have wide discretion to impose varying conditions on probation orders. The California Legislature has given the following guidelines: The court may impose and require any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced. ( 730, subd. (b).) California courts have distinguished adult probation conditions from juvenile probation conditions. Juvenile courts may condition probation with greater discretion than that allowed in an adult criminal case because [j]uvenile probation is not, as with an adult, an act of leniency in lieu of statutory punishment; it is an ingredient of a final order for the minors reformation and rehabilitation. [Citation.] (In re Byron B. (2004) 119 Cal.App.4th 1013, 1016; see In re Christopher M., supra, 127 Cal.App.4th at p. 692.) Consequently, a condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court. [Citations.] (In re Byron B., supra, 119 Cal.App.4th at p. 1016.) The Byron court elaborated, noting that the conditions which infringe on constitutional rights may not be invalid if they are tailored specifically to meet the needs of the juvenile. (Ibid.)

In determining an adult probation conditions validity, the California Supreme Court provided a test where [a] condition of probation will not be held invalid unless it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . . [Citation.] (People v. Lent (1975) 15 Cal.3d 481, 486 (Lent).) Subsequently, our courts have applied the Lent test to juvenile court orders. (In re Josh W. (1997) 55 Cal.App.4th 1, 6.)^[6] A juvenile court must consider not only the circumstances of the crime but also the minors entire social history when conditioning probation. (In re Todd L. (1980) 113 Cal.App.3d 14, 20.)

In the underlying case, the record does not warrant the condition prohibiting appellant from interacting with people he knows to use, possess, or deal drugs. The Lent test provides adequate guideposts to dispose of this condition. Both parties agree that the disputed probation condition satisfies the first and second Lent factors.^[7] Thus, we focus on the third Lent factorwhether or not the condition requires or forbids conduct which is not reasonably related to future criminality.

While engaging with people who use, possess, or deal drugs can have a negative influence on anyone, appellants social history illustrates that he is not in significant risk of spiraling toward future drug-related criminality. First, the probation department does not note anywhere in its reports that appellant associates with those involved with drugs or that his alleged crime included personal drug use. Second, the probation departments social study found appellants family unit to be extremely close and that they mostly associate with a tightly knit community of people from Yemen. Third, the social study portrays appellant as a responsible minor who does not use drugs or consume alcohol; attends the mosque with his family; does chores at home; helps his siblings with their schoolwork; and aspires to go to college and attain future employment. Given appellants social history and alleged crime, we conclude that the disputed probation condition is not reasonably related to his future criminality. Thus, we conclude that the juvenile court abused its discretion because this condition is not tailored to meet appellants needs for reformation and rehabilitation of a misdemeanor battery.

The orders instituting formal probation and rescinding informal probation are reversed and the cause is remanded to the juvenile court for further proceedings consistent with this opinion. The order imposing the disputed probation condition is reversed.

_________________________

Reardon, J.

We concur:

_________________________

Ruvolo, P.J.

_________________________

Sepulveda, J.

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^[1]All further statutory references are to the Welfare and Institutions Code unless otherwise noted.

^[2]All further dates are in the 2006 calendar year.

^[3]In a section 654.2 report, the probation department examines a minors suitability for informal probation. ( 654, 654.2.)

^[4]Section 654 provides, in relevant part: The program of supervision shall require the parents or guardians of the minor to participate with the minor in counseling or education programs, including, but not limited to, parent education and parenting programs operated by community colleges, school districts, or other appropriate agencies designated by the court if the program of supervision is pursuant to the procedure prescribed in Section 654.2.

^[5]Along with other conditions, appellant was required to complete 60 hours of community service and to be enrolled in a school in the Oakland School District.

^[6]The People contend that appellant waived his right to contest the validity of the condition, reasoning that he failed to mention Lent or the Constitution when objecting below.

Appellant has not waived his right to appeal the probation condition. First, Division Three of this District has held that an appellants failure to cite Lent in support of his objection to the probation condition does not preclude consideration of his claims on appeal. (In re Josh W., supra, 55 Cal.App.4th at p. 4.) The Supreme Court recently held that [a] defendants constitutional challenge to her [or his] probation condition was not forfeited despite her [or his] failure to object on the foregoing ground at the time the condition was imposed by the juvenile court . . . . (In re Sheena K. (2007) 40 Cal.4th 875, 879.)

^[7]The People did not address the first Lent factor in its brief. Consequently, the People concede that the condition is not related to appellants crime, satisfying the first Lent factor. (People v. Bouzas (1991) 53 Cal.3d 467, 480 [omission of response to appellants argument implies concession to that argument]; Lent, supra, 15 Cal.3d at p. 486.)