In re Marc H.

Filed 9/6/07 In re Marc H. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Douglas N. Gericke, Judge. Affirmed.

Patrick J. Hennessey, Jr., 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, Peter Quon, Jr., Supervising Deputy Attorney General, Marvin E. Mizell and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Following a jurisdictional hearing, the juvenile court found true the allegation that minor committed misdemeanor battery. (Pen. Code, 242.) Minor was declared a ward of the court and granted formal probation. Minor contends that he should have been placed on informal probation, which could have occurred at two separate points in the proceedings. First, minor asserts that prior to a petition being filed, the probation officer that evaluated his case abused her discretion by using improper factors in deeming him unsuitable for informal probation. (Welf. & Inst. Code, 654.)^[1] Second, minor contends that after the petition was filed, but prior to the court making a true finding, the juvenile court should have exercised its discretion to refer the case back to the probation department for informal supervision. (Welf. & Inst. Code, 654.2; In re Adam R. (1997) 57 Cal.App.4th 348, 352-353 [Welf. & Inst. Code, 654.2 informal probation is available postpetition, but must be implemented before adjudication of the charges].) Minor requests the juvenile court be directed to set aside the true finding and place minor on informal probation.

FACTS

Minor and the victim were neighbors. On the day of the battery, the victims brother and minors father were fighting on the street, in between the victims and minors houses. The victim, who was pregnant at the time, was standing on the street calling the police with her cell phone when minors girlfriend made a remark to her. The victim made a verbal response and then minor pushed the victim causing her to fall backwards. The victims fall was broken either by a neighbor catching her or a chain link fence. Minors brother and mother testified that they did not see minor push the victim.

In a report prepared by the San Bernardino County Probation Department, prior to a petition being filed by the district attorney, minor was deemed unsuitable for informal probation because minor failed to show for a scheduled office visit [with the probation department] on September 21, 2006 and [was] not . . . attending classes at [his high school]. The probation officer also noted that she spoke with minors mother to schedule an appointment, and minors mother conveyed that minor denied the allegations against him. As a follow-up to the phone call, minors mother sent a letter to the probation officer informing her that she did not agree to minor attending the suggested anger management class.

After minor was deemed unsuitable for informal supervision, the district attorney filed a petition under Welfare and Institutions Code section 602, subdivision (a). Following a jurisdictional hearing, the court found that minor had committed misdemeanor battery. (Pen. Code, 242.)

At the disposition hearing, minor submitted to the recommendation of formal probation, only noting an issue as to the distance minor was required to keep from the victim. Minor was declared a ward of the court and granted formal probation.

DISCUSSION

I. Waiver of Sections 654 and 654.2

Minor contends that he should have been placed on informal probation. Preliminarily, we note that minor has waived this issue for appellate review. At the juvenile court hearing, minor failed to make a motion for reconsideration of the probation officers decision that he was unsuitable for informal supervision under section 654. Also, minor did not request the juvenile court to refer the case back to the probation department after a petition was filed, but prior to the court making a true finding under section 654.2. By failing to request reconsideration of the probation officers decision at the juvenile court, minor has waived it for review. (In re Abdirahman S. (1997) 58 Cal.App.4th 963, 968.) In addition, because minor did not move for informal supervision after the petition was filed, but prior to the matter being adjudicated under section 654.2, the court was not required to consider the matter. (In re Abdirahman S., supra, at p. 968.) Accordingly, the court did not make an order denying or granting a motion for informal supervision; so there is no section 654.2 order from which an appeal can be taken.

II. Minor and His Mother Did Not Consent to Informal Probation

We address the merits of minors appeal because the matter is easily resolved. Minor asserts that the probation officer who reviewed his case, prior to a petition being filed, abused her discretion by using improper factors to find minor unsuitable for informal supervision. ( 654.) Minor also contends that the juvenile court should have exercised its discretion to refer the case back to the probation department for informal supervision after the petition was filed, but prior to making a true finding in the case. ( 654.2.) We disagree.

In Charles S. v. Superior Court (1982) 32 Cal.3d 741, 749 (Charles S.), the court explained: [Section 654] by its terms requires the consent of the minor and his parents to the program designed by the probation officer . . . . Section 654.2 also requires the consent of minor and his parents prior to informal probation being instituted. ( 654.2, subd. (a).)

First, we address the probation officers decision, which was made prior to a petition being filed. Minors mother did not consent to minors participation in the recommended informal probation program; her defiance of the program began prior to a petition being filed and there is no evidence of a change of heart until after the true finding was made in the matter. On September 21, 2006, minors mother wrote a letter to minors probation officer to follow up on a phone call between the two. In the letter, minors mother stated [d]uring this telephone conversation there were no mutual agreement [sic] of any scheduling of; nor mutual agreement to my son attending your suggested anger management class for something he didnt do. I simply told you I will get back with you in regards to this matter. This follow-up letter is a result thereof. Without the consent of minors mother for minor to participate in the informal probation program, the probation officer could not recommend informal supervision. ( 654; Charles S., supra, 32 Cal.3d at p. 749.)

Furthermore, in the report finding minor unsuitable for informal supervision, the probation officer noted minors failure to appear for a scheduled office visit with the probation department. Due to minors failure to participate in the scheduled meeting, the probation officer had no option but to find minor unsuitable for informal probation, because minor never accepted the informal supervision program. ( 654; Charles S., supra, 32 Cal.3d at p. 749.)

Minor and his mother not only did not object to the denial of informal probation prior to the filing of a petition, they actively chose not to participate in the suggested program. Accordingly, the probation officers decision finding minor unsuitable for informal supervision was appropriate, because minor and his mother never consented to minors participation in the program.

Next, we address minors contention that the juvenile court should have exercised its discretion to refer the matter back to the probation department for informal supervision after the petition was filed, but prior to making a true finding. Minors failure to make a motion under section 654.2 prevented the court from considering the issue of informal probation. (In re Abdirahman S., supra, 58 Cal.App.4th at p. 968.) Furthermore, minor and his mother never expressed a desire for minor to be placed on informal probation until after the court found the allegation that minor battered the victim to be true.

Minor and his mothers failure to make a section 654.2 motion was apparently motivated by their belief that the court would not make a true finding in the case. In the January 2007 probation report, it is noted that in an interview with minor and his mother on December 12, 2006, approximately two weeks after the true finding in the case, minor and his mother were very upset and distraught; minors mother did not understand why this has happened; and minor relayed that he never touched the victim. Although minor and his mother believed the juvenile court would find the allegations to be false, which explains their motivation for not consenting to or participating in the informal probation program, it does not excuse their failure to request informal probation under section 654.2.

Minor and his mother took a calculated risk by rejecting informal probation in the hope that the court would not make a true finding. To allow the juvenile courts finding to be set aside, because minors gamble did not provide the results he wished for, would defeat the purpose of section 654.2 by providing minors with a wait and see approach to informal probation, i.e., not requesting informal probation until after a true finding has been made in the case. (In re Omar R. (2003) 105 Cal.App.4th 1434, 1438 [the purpose of 654 & 654.2 is to avoid a true finding on criminal culpability so the minor will not have a criminal record].) Accordingly, since we have not been provided with a reason as to why the juvenile courts true finding was incorrect, we cannot set aside its finding and direct the court to order informal probation.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

HOLLENHORST

J.

GAUT

J.

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