Filed 8/15/17 In re Cesar M. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from an order of the Superior Court of Fresno County. Kimberly J. Nystrom-Geist, Judge.

Roshni Mehta, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.

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Cesar M. (appellant), a former ward of the juvenile court, appeals from an order denying relief under Welfare and Institutions Code section 786.[1] The juvenile court declined to seal the records in a particular case based on a finding that appellant had failed to substantially comply with the terms of his probation. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant, who is now 20 years old, suffered two juvenile adjudications while residing in Ventura County. He was first declared a ward of the juvenile court in June 2013 for misdemeanor possession of a controlled substance. This appeal concerns a September 2013 petition filed pursuant to section 602, which alleged the commission of felony vehicle taking (Veh. Code, § 10851, subd. (a)). Appellant admitted to the offense. On February 4, 2014, the Ventura County juvenile court ordered that he be continued as a ward of the court and committed him to a juvenile justice facility for four months.

Upon release from confinement, appellant was allowed to reside with his mother while under the supervision of a probation officer and pursuant to certain terms and conditions of probation. The mother relocated to Fresno County. Accordingly, the case was transferred to the Fresno County juvenile court, which accepted jurisdiction on July 14, 2014 and set the matter for a dispositional hearing. On August 25, 2014, the juvenile court issued an order of continuing wardship and probation. The terms of probation required, among other things, that appellant attend school as required by the Education Code and “enroll [in] and complete” a substance abuse counseling program.

Appellant’s probation and wardship terminated in March 2015, on his 18th birthday. On September 15, 2016, the Fresno County Probation Department filed an ex parte application to set a hearing to determine appellant’s eligibility under section 786 to have the underlying petition dismissed and all records pertaining thereto sealed. The matter was heard on November 4, 2016.

The probation officer who attended the hearing recommended that relief be granted, noting appellant had been participating in substance abuse counseling when he turned 18 years old; that he had passed a drug test; and that his poor school attendance had “improved” by the termination date. The juvenile court responded, “[H]elp me understand the recommendation. He did not complete substance counseling. He was admonished for leaving Fresno County without notifying his case officer. He had poor school attendance and grades. He completed 30 hours of community service, but that’s about all I can see that he did. So I’m not quite following probation’s recommendation.” The probation officer offered vague speculation that appellant’s failure to complete substance abuse counseling was somehow attributable to his age and birthdate. The officer then said, “I believe based on the fact of completing community service hours and showing effort to complete [counseling], that’s probably why the recommendation [--] and the negative drug screen.”

The juvenile court ruled as follows: “Cesar has a lengthy juvenile history with several sustained petitions.... It appears to the Court, based on the totality of the circumstances, that Welfare and Institutions Code section 786 relief would not be appropriate. He has not satisfactorily completed probation terms and conditions in that he did not complete his substance abuse counseling. He was admonished for leaving Fresno County and not notifying his supervising case officer. He had poor school attendance and grades. Under the totality of the circumstances, the Court finds that Cesar did not substantially comply with the reasonable terms and conditions of probation that were within his capacity to perform[.] [T]herefore, none of his juvenile records are sealed and none of his petitions are dismissed under section 786.”

A notice of appeal was filed on December 22, 2016.

DISCUSSION

The challenged order is reviewable for abuse of discretion. (See In re A.V. (2017) 11 Cal.App.5th 697, 711 (A.V.).) “To show abuse of discretion, the appellant must demonstrate the juvenile court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a miscarriage of justice.” (In re Joey G. (2012) 206 Cal.App.4th 343, 346.) “ ‘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 [juvenile] court.’ ” (In re Stephanie M. (1994) 7 Cal.4th 295, 319.)

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).) 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.” (Id., subd. (c), italics added.) 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.’ ” (A.V., supra, 11 Cal.App.5th at p. 709.)

Appellant’s failure to complete a substance abuse counseling program was uncontroverted, as was his history of poor school attendance. He had been a habitual marijuana user with significant truancy problems. Despite speculation as to the counseling requirement, there was no showing that timely completion of such a program was impracticable. Use of the term “improved” with regard to his school attendance suggested persisting truancy, albeit to a lesser degree than before, and did not establish substantial compliance. Thus, it was not outside the bounds of reason for the juvenile court to deny relief based on appellant’s failure to substantially comply with these specific terms of probation.

Appellant’s strongest argument relies on the principle that a discretionary order “based on the application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion, and is subject to reversal even though there may be substantial evidence to support that order.” (Mark T. v. Jamie Z. (2011) 194 Cal.App.4th 1115, 1124-1125.) He observes that the juvenile court cited two irrelevant factors while discussing the totality of the circumstances: his “lengthy juvenile history,” i.e., prior adjudications and violations of probation while under the jurisdiction of Ventura County, and the failure to notify his probation officer prior to leaving Fresno County (the terms of probation required only that he “not leave the State of California without written consent of [his] probation officer”). Respondent does not construe the trial court’s statements as being indicative of improper reliance on these factors.

Insofar as the juvenile court may have given consideration to improper factors, the mistake is subject to a harmless error analysis. (Cal. Const., art. VI, § 13; People v. Singh (2015) 234 Cal.App.4th 1319, 1330 [“Absent structural error, … it is not enough for an appellant to identify an error in the proceedings in the trial court without affirmatively establishing ‘how the error caused a miscarriage of justice.’ ”].) Error is harmless under state law unless it is reasonably probable that a result more favorable to the appellant would have occurred absent the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) The juvenile court was clearly disinclined to grant relief under section 786, and appellant has made no showing of prejudice. It would not serve the interests of justice or judicial economy to remand this matter only to have the juvenile court identify the substance abuse counseling and school attendance issues as the exclusive basis for its ruling. (Cf. People v. Price (1991) 1 Cal.4th 324, 492 [“When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.”]; People v. Kellett (1982) 134 Cal.App.3d 949, 963 [“Since the most important of the trial court’s factors survives appellate scrutiny, it cannot be said it is reasonably probable a different sentencing choice would have been made absent the improper factor.”].)

Since appellant has cited to section 781 in his briefs, we assume he is aware that the juvenile court’s ruling does not preclude him from petitioning to seal his records under that code section. (§ 781, subd. (a)(1)(A); Cal. Rules of Court, rule 5.830.)

DISPOSITION

The order is affirmed.