Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Lawrence Kapiloff and Federico Castro, Judges, No. J213488
BENKE, Acting P. J.
In this juvenile delinquency case, the juvenile court put appellant on informal probation under the terms of Welfare and Institutions Code section 654.2. Later, the trial court revoked the probation and, following appellant's admission to the allegations of an amended petition, ordered that appellant and his parents make restitution in the amount of $5,483.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
Appellant argues the juvenile court acted improperly in revoking his informal probation and in imposing the restitution order. He also argues that the punishment he received was disproportionate to the punishment imposed on an accomplice. We affirm.
In light of the amount of damage appellant and an accomplice did when they defaced appellant's middle school bathroom with graffiti, appellant was eligible for probation under section 654.2 only on a finding the case was unusual and the interests of justice would best be served with a program of supervision. The juvenile court made the required finding before imposing informal probation. However, the court could consider the amount of damage to school property and the circumstances which caused it to believe appellant presented an unusual case in considering whether appellant successfully completed the informal probation. Here, appellant did not complete the graffiti class required by the juvenile court's order, made no substantial effort to provide the school with the restitution required by the order and did not perform the community service required by the terms of the order imposing probation. These failures could lead the juvenile court to reasonably conclude that, notwithstanding the exceptional circumstances the juvenile court found in initially permitting informal probation, neither appellant nor his parents appreciated the seriousness of appellant's offense and hence informal probation had not been successful. Thus the trial court acted well within its discretion in revoking appellant's probation.
Contrary to appellant's contention, the juvenile court acted properly in determining the amount of restitution. Appellant and his mother were both given notice of the hearing at which the amount of restitution would be determined and hence the trial court acted well within its discretion in declining to continue the hearing so that they could be present. At the restitution hearing, respondent presented ample evidence of the cost of repairing the bathroom.
Finally, although appellant had initially been charged with misdemeanor vandalism, because he did not initially admit the allegations of the original petition but instead asked for informal probation, respondent had the right to amend the petition and allege appellant was guilty of a felony. The fact appellant's accomplice admitted the allegations of the initial misdemeanor petition did not prevent respondent from filing an amended petition with respect to appellant.
FACTUAL AND PROCEDRUAL BACKGROUND
On the afternoon of March 27, 2006, appellant Israel L. and companion Nathan P. defaced the inside of a recently remodeled bathroom at Mar Vista Middle School. They used "Sharpie" markers to write, among other things, "SKS" on multiple surfaces in the recently constructed bathroom; "SKS" stands for Southern Kali Soldiers.
On November 8, 2006, the district attorney filed a delinquency petition which alleged appellant had committed less than $400 in damage to property in violation of Penal Code section 594, subdivisions (a), (b)(2)(A). In response to the petition, appellant filed a motion pursuant to section 654 in which he asked to be placed on informal probation and that proceedings be continued for six months. The district attorney opposed the motion and argued that since the filing of the delinquency petition the school district had discovered that it would in fact cost $5,483 to repair the damage caused by appellant and Nathan. The district attorney explained that the stalls and tiles in the new bathroom that had been defaced in fact had to be entirely replaced. The district attorney argued that in light of the fact the damage exceeded $1,000, appellant was not eligible for informal probation under section 654.3, subdivision (g).
Notwithstanding the district attorney's opposition, the juvenile court granted appellant informal probation. The juvenile court stated: "I think I have a tendency not to grant the motion. This is the first time around. Because of the damage, the extensive damage, I'm going to go ahead and grant the motion. These are unusual circumstances." The juvenile court directed that appellant perform 60 hours of community service at a non-profit agency, attend a graffiti education class and, along with his parents, Nathan and Nathan's parents, pay restitution in the amount of $5,483.
Six months later, on August 6, 2007, appellant appeared before the juvenile court and asked for a two-month continuance. At that point appellant had not completed 60 hours of community service with a nonprofit agency. According to appellant's attorney, appellant had completed 60 hours of work but not at a nonprofit agency. In addition, because his parents could not afford the cost, appellant had not attended the graffiti education class. Appellant's parents had not paid any portion of the restitution; however, appellant's counsel stated she contacted a supervisor at the school district who was looking into the cost of repair. The district attorney opposed any continuance and argued informal probation should not have been granted in the first place because the cost of repairing the damage exceeded $1,000.
The trial court revoked appellant's probation and stated: "I made a mistake in granting it. I'm going to revoke 654 on the basis he has not complied with most of the recommendations that were set forth."
On August 31, 2007, the district attorney filed an amended petition which alleged appellant had committed a felony by causing more than $400 in damage to the bathroom. (Pen. Code, § 594, subds. (a), (b)(1).) On October 29, 2007, appellant admitted the allegations of the amended petition and a disposition and an evidentiary hearing on the amount of damage was set for December 13, 2007.
A probation report recommended appellant be placed with his mother, that he complete 60 hours of graffiti removal in the community, not have contact with Nathan, and pay $5,483 in restitution to the school district. Counsel only objected to the amount of restitution and the juvenile court set an evidentiary hearing on the amount of restitution for January 30, 2008.
Appellant did not appear personally at the evidentiary hearing, but instead appeared through counsel. Counsel asked to continue the hearing so appellant and his mother could be present. Because the prosecution's damage witness was present and because the appearance of appellant had been excused, the trial court denied the request for a continuance. The prosecution then called the vice-principal of the middle school, who testified that the bathroom had been recently remodeled, that it was not possible to remove the Sharpie ink from the new stall partitions or from the grout in the newly installed tile, and that the contractor who had done the remodeling gave the district a bid of $5,483 to repair the damage appellant and Nathan had committed.
The court ordered that, in addition to other terms of its disposition, appellant and appellant's parents would jointly and severally, with Nathan and Nathan's parents, pay the district $5,483 in restitution. Appellant filed a timely notice of appeal.
DISCUSSION
I
In his first argument, appellant contends the juvenile court erred in revoking his informal probation. We find no error.
A. Statutory Background
The informal probation provided by section 654.2 provides a juvenile court with the discretion to give an alleged delinquent an opportunity to demonstrate an ability to reform before any delinquency is adjudicated. (See In re Armondo A. (1992) 3 Cal.App.4th 1185, 1188-1190.) "[T]he purpose of the section 654 informal supervision program is to avoid a true finding on criminal culpability which would result in a criminal record for the minor. If the informal supervision program is satisfactorily completed by the minor, the petition must be dismissed." (In re Adam R. (1997) 57 Cal.App.4th 348, 352.) On the other hand, "[i]f the minor does not satisfactorily complete the program, there is no statutory provision for dismissal of the petition; rather, the proceedings on the petition continue." (In re Adam D. (1997) 56 Cal.App.4th 100, 103; § 654.2.) Because section 654.2 provides the juvenile court with the discretion to impose informal probation, implicit in the statutory scheme is the requirement the juvenile court also exercise discretion in determining whether the juvenile has successfully completed the terms of supervision. (See § 654.2.) We review the juvenile court's order revoking probation to determine whether there is substantial evidence which supports the manner in which the juvenile court exercised its discretion. (See In re Alex U. (2007) 158 Cal.App.4th 259, 265; People v. Johnson (1980) 26 Cal.3d 557, 578.)
B. Informal Probation was Lawful
First we take up respondent's contention that the juvenile court acted unlawfully in initially ordering informal probation. As respondent points out, section 654.3 provides in pertinent part: "No minor shall be eligible for the program of supervision set forth in Section 654 or 654.2 in the following cases, except 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: [¶]... [¶]
"(g) A petition alleges that the minor has violated an offense in which the restitution owed to the victim exceeds one thousand dollars ($1,000). For purposes of this subdivision, the definition of 'victim' in paragraph (1) of subdivision (a) of Section 730.6 and 'restitution' in subdivision (h) of Section 730.6 shall apply."
Because the damage to the bathroom exceeded $1,000, probation under section 654.2 was not permissible in the absence of an express finding appellant's case was unusual and that the interests of justice would be best served by imposing informal probation. Although the juvenile court did not provide a full statement, in ruling on appellant's motion for probation, the juvenile court did state that this was the juvenile's first offense and that the case was unusual. This satisfied the requirements of the statute.
We also note that at the time probation was ordered, respondent did not request a more detailed statement from the juvenile court.
C. Revocation of Probation was Proper
The fact the juvenile court acted lawfully in ordering probation in the first instance did not prevent the juvenile court from considering the circumstances which led it to order probation in determining whether appellant had been successful in completing the program of supervision required by section 654.2. Our review of the record suggests that in ordering probation the juvenile court carefully weighed the substantial damage caused by appellant and his accomplice against appellant's youth and lack of a prior record and in the end gave appellant and his parents the benefit of the doubt and afforded appellant the opportunity to avoid a criminal record. Indeed, we note that in arguing that informal probation should be ordered, appellant's counsel stated: "Your honor, just that it seemed to me in my conversation with mother and conversation with him his light has come on and he knows what has to be done. They don't agree with the restitution. Understand they have to pay it. Most importantly, the minor's attending school, doing what he has to. Seems to me to be a one-time incident. Now we have him on the right track. I'd like to see him afforded the opportunity to have this case dismissed via 654, restitution, various programs he has to do."
It is in the context of the leniency the juvenile court initially exhibited that six months later the juvenile court had to consider that, although appellant did not get into any further trouble while he was on probation, appellant did not complete the graffiti class ordered by the court and did not ask for financial assistance to complete the class until the six-month probation period was over. We also note that although the court had ordered restitution in the amount of $5,483 at the time it ordered probation and appellant and his mother agreed to pay it, six months later appellant's counsel was attempting to relitigate the amount of the restitution. Finally, we note that appellant did not properly comply with the community service requirement of the order. These defects in performance were significant here because taken together they suggest appellant and his family did not acknowledge or appreciate either the seriousness of the alleged offense or the fact that in permitting probation the juvenile court had made an exception to the rule which would otherwise have barred informal probation. Stated another way, the juvenile court could have concluded that, given the deficiencies in appellant's performance on probation, in fact appellant's "light" had not "come on." Thus the juvenile court was fully warranted in concluding that, in light of appellant's performance on probation, it had been a mistake to order probation in this case and that probation should therefore be revoked.
We also note that section 654.2, subdivision (a), allows that on recommendation of the minor's probation officer a continuance may be granted to complete a program of informal probation. No such recommendation appears in the record.
II
Appellant next challenges the restitution order imposed by the juvenile court. We review the order for abuse of discretion. (People v. Fortune (2005) 129 Cal.App.4th 790, 794.)
A. Request for Continuance and Right to be Present
At the disposition hearing on the amended petition, at which both appellant and his mother were present, the juvenile court set the restitution hearing for January 30, 2008. By minute order the juvenile court excused appellant's presence at the restitution hearing. When the restitution hearing was called, appellant's counsel asked for a continuance because neither appellant nor his mother was present. Although counsel argued appellant and his mother wanted to vigorously contest the amount of restitution, counsel offered no excuse for their failure to attend. Under those circumstances and in light of the fact that respondent's restitution witness was available to testify, the trial court did not abuse its discretion in denying the request for a continuance. While it is true appellant had the right to appear and assist counsel at the hearing (see section 730.6, subdivision (h)), he also could and apparently did waive that right. (See In re Sidney M. (1984) 162 Cal.App.3d 39, 48.)
B. Sufficiency of the Evidence as to Appellant
As we have noted, at the restitution hearing the vice-principal of the middle school testified the cost of repairing the graffiti damage to the newly remodeled bathroom was $5,483. He also testified about the permanent damage done, and how attempts to remove the graffiti had failed. The vice-principal's testimony, supported by a written estimate from the contractor who had remodeled the bathroom, was sufficient to support the trial court's order. Moreover, the estimate of repairs was completed nearly a year before the restitution hearing, ample opportunity existed to demonstrate a different restitution amount was proper. The fact appellant contends he was not responsible for a good deal of the damage done when he and Nathan went into the bathroom is unavailing. There is no dispute in the record he participated with Nathan and is therefore jointly and severally liable for the damage he and Nathan together committed. (See People v. Madrana (1997) 55 Cal.App.4th 1044, 1051, citing People v. Zito (1992) 8 Cal.App.4th 736, 746.) This is not a case where appellant's criminal acts were separate in time and place from the acts of others who caused distinct damage to the victim. (See e.g. In re Maxwell C. (1984) 159 Cal.App.3d 263, 266-267 [juvenile who admitted receiving stolen car stereo equipment not liable for damage to victim's car committed when car burgled by others].)
In sum the juvenile court's restitution order is fully supported by the record.
III
Finally, we reject appellant's contention that he was subjected to disproportionate prosecution and sentencing.
As appellant notes, instead of asking for informal probation, Nathan admitted the allegations of the misdemeanor petition filed against him. Appellant on the other hand was subjected to a felony petition after he failed to perform under the terms of the informal probation. We note that, like appellant, Nathan was placed on probation, required to do community service, remanded to the custody of his parents and made jointly and severally liable for the damage the two committed. The only difference in their disposition is that appellant has a felony conviction on his record and Nathan has a misdemeanor on his record.
Although we do not wish to diminish the impact of a felony conviction on appellant, under the circumstances presented here we find no constitutionally disproportionate treatment of appellant. Appellant could have avoided a felony petition by either pleading to the initial misdemeanor petition, as Nathan chose to do, or by successfully completing the informal probation initially ordered by the juvenile court. Since the disparate treatment which occurred here was largely a result of choices appellant made, he may not complain that he was treated unfairly.
Judgment affirmed.
WE CONCUR: NARES, J., McINTYRE, J.