Filed 12/21/17 In re A.M. CA5


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re A.M., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,
Plaintiff and Respondent,
v.
A.M.,
Defendant and Appellant.
F075225
(Super. Ct. No. 14CEJ600769-1)

OPINION
THE COURT*
APPEAL from orders of the Superior Court of Fresno County. Michael G. Idiart, Judge.
Charles M. Bonneau III, 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, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Minor A.M. contends on appeal that the juvenile court abused its discretion in refusing to dismiss her petition and seal her record pursuant to Welfare and Institutions Code section 786. We affirm.
BACKGROUND
On November 6, 2014, a section 602 juvenile petition was filed alleging 14-year-old minor committed misdemeanor battery (Pen. Code, § 242). The court placed minor on informal probation with conditions, including that she complete individual and family counseling programs.
In June 2015, minor had still not attended family counseling or completed her community service.
On January 5, 2017, the juvenile court held a hearing to consider minor’s motion under section 786. The probation officer recommended against granting the motion because minor had had a positive drug test and had failed to complete her anger management and family counseling as ordered by the court. The People concurred with the probation officer. Defense counsel explained that minor had completed most of her requirements, but had not completed some of the counseling because mother could not afford the cost. Minor was placed on a waiting list. Counsel explained that mother had not been supportive and minor was now living with father. Counsel believed the failure to complete the counseling was not in minor’s control. Counsel requested a continuance to collect more information, which the court granted.
On January 31, 2017, the People filed a section 777 petition alleging minor violated probation by failing to obey directives of her parents and probation by running away, failing to complete anger management and family counseling, and failing to refrain from using force or violence. The next day, the People filed a supplemental section 777 petition alleging minor fought with a fellow student, ran away again, and failed to complete anger management and family counseling.
The probation officer’s report prepared for the February 27, 2017 hearing stated that mother initially said she could not afford the cost of the counseling; then she found a free program, but this had an extended waiting period and minor had not yet enrolled.
On February 27, 2017, a hearing was held on the two section 777 violation of probation petitions (-1V and -1V2) and on minor’s section 786 motion to dismiss the original November 2014 petition (-1) and seal the records. The juvenile court agreed to dismiss the two section 777 violation of probation petitions, but not the original November 2014 petition, as follows:
“THE COURT: All right. This is, what, a—we have—we have a [section] 786 review, but we’re also trailing a potential [violation of probation hearing]; is that correct?
“[DEFENSE COUNSEL]: That’s correct, Your Honor. Today was set for not only [section] 786 review of the dash 1 petition, but we had set this for a contested hearing today on both the dash 1V and dash 1V2 [petitions]. And I’d like to be heard with respect to both the [section] 786 but I think Probation—I’ll defer to Probation first given our conversation before we got on the record.
“[PROBATION OFFICER]: Yes, Your Honor. I met with the officer who filed the [section] 777 petition, and he indicated the only reason the petition was filed was due to her leaving the mother’s home and refusing to return home. And so now that the family issue has been resolved, we’re fine with dismissing the petition and terminating probation.
“THE COURT: District Attorney?
“[DISTRICT ATTORNEY]: I have no objections to that.
“THE COURT: All right. That request or that indication is—I’ll grant that. So we’re dismissing which petition?
“[PROBATION OFFICER]: The dash 1V [petition].
“THE COURT: 1V [petition] is dismissed. And you care to be heard further? And the 1V2 [petition] as well?
“[PROBATION OFFICER]: And the 1V2 [petition], yes. [¶] … [¶]
“[DEFENSE COUNSEL]: Yes, Your Honor.
“THE COURT: You want to be heard on?
“[DEFENSE COUNSEL]: Yes, Your Honor. And that’s—I know that we’re not in agreement with. I would ask the Court to dismiss and seal the dash 1 petition pursuant to [section] 786.
“Your Honor, [minor] has been on formal probation since January 5th, 2016. This case—it’s a misdemeanor [Penal Code section] 242. It’s been going on since 2014, so it’s a two and a half year old case, almost three-year-old case, Your Honor. The underlying contact is [minor] throwing an empty water bottle at her mother. [¶] … [¶] In addition to that, … defense counsel’s had an investigator from our office interview both mother and father, and mother isn’t here today. According to [minor], mother couldn’t get a baby-sitter which is why she isn’t here, but she stated to our investigator that she attempted to sign [minor] up for counseling at Comprehensive Youth Services but she could not afford to pay for the counseling so didn’t go through with it. [Minor] was still covered by the father’s insurance, but he refused to help. Grandparents also have information with respect to this. [¶] In addition to that, I have e-mails previously from mother just stating that—I believe Behavioral Health Court was considered at one time and mother stated she didn’t want to do Behavioral Health Court because it was, quote, ‘too much.’
“And so I don’t believe, one—I believe [minor] would be deserving of [section] 786 [relief] simply because these are family dynamics that are the reason for these alleged violations, not—they’re not willful violations. If anything, the counseling and services that the family needs is more appropriately suitable for being done through family court, not here in criminal court. So we believe it would be in the interest of justice based on the information I just stated to the Court—I’m happy to elaborate if the Court wants more—but we’d ask that this petition be dismissed and sealed pursuant to [section] 786.”
The court turned to the district attorney, who argued that the section 786 motion should be denied, or at least continued to allow minor time to complete the counseling she was originally ordered to complete.
Lastly, the court turned to the probation officer, who explained that his report of January 5, 2017, stated that minor not only failed to complete her counseling, but also had a positive drug test. The only reason for the section 777 petition was her failure to return home, and when that was resolved, he agreed the violation of probation petition should be dismissed, “but we’re not in support of granting [section] 786 due to the non compliance.”
Defense counsel told the court that things with minor were currently going well, to which the court responded: “Well, we’ll see how well they go between now and when she turns 18, but all right. Matter submitted?” The parties answered in the affirmative.
The court ruled as follows:
“All right. I’m not going to grant [section] 786 [relief]. [¶] The Court finds the … minor has failed to substantially comply with the reasonable orders and terms of probation that were within her capacity to perform and did not complete family counseling or anger management. [¶] … [¶] The minor’s former probation is terminated in all respects. You’re no longer on probation. [¶] When you turn 18, find out where you’re going to choose to live whether it’s with your mother or grandparents or on your own, but there’s another way to get your records sealed and you can pursue that, okay? Good luck.”
DISCUSSION
Minor argues the court abused its discretion in concluding she had not substantially complied with her probation and thus should not be granted section 786 relief. We see no abuse of discretion.
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)(1), italics added.)
“Substantial 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.)
A decision to grant or deny section 786 relief is reviewed for abuse of discretion. (In re A.V., supra, 11 Cal.App.5th at p. 701 [“court has discretion under section 786 to find the ward has or has not substantially complied with … probation so as to be deemed to have satisfactorily completed it”].) Under this standard, “ ‘a trial court’s ruling will not be disturbed, and reversal of the judgment [or order] is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” (People v. Hovarter (2008) 44 Cal.4th 983, 1004; see People v. Kipp (1998) 18 Cal.4th 349, 371 [“[a] court abuses its discretion when its ruling ‘falls outside the bounds of reason’ ”].)
Here, the juvenile court expressly found that minor had not substantially complied with her probation requirements. Substantial evidence supports that finding: minor had not completed the required counseling. She argues that the counseling requirements fell under the category of orders that were not within her capacity to perform because her family was unwilling or unable to afford the counseling. According to the record, however, mother found a free program, but it had a waiting list. This factor did not render minor incapable of participating in the counseling. Minor was capable of waiting and attending the counseling when her name came up. As for the sealing of her records, minor is not without a remedy. She may petition the juvenile court to seal her records when she turns 18 years old. (§ 781, subd. (a)(1)(A).)
DISPOSITION
The juvenile court’s order denying minor A.M. relief under Welfare and Institutions Code section 786 is affirmed.