Opinion
E070010
10-01-2018
In re D.K., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.K., Defendant and Appellant.
Dawn S. Mortazavi, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette C. Cavalier, and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J266326) OPINION APPEAL from the Superior Court of San Bernardino County. Winston Keh, Judge. Affirmed. Dawn S. Mortazavi, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette C. Cavalier, and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
In July 2016, defendant and appellant D.K. (minor) admitted that he committed an assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) and that he received stolen property exceeding $950 (Pen. Code, § 496, subd. (a)). In return, minor was declared a ward of the court and placed on formal probation on various terms and conditions of probation in the custody of his mother. Throughout his probation period, minor committed new offenses and violated several probationary terms and conditions. Minor eventually abided by the terms and conditions of his probation, and in February 2018, minor requested that his formal probation be dismissed and his records be sealed pursuant to Welfare and Institutions Code section 786, arguing he had substantially complied with his probationary terms. The juvenile court denied minor's request, and minor appealed.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
On appeal, minor argues that the juvenile court abused its discretion in denying his request to dismiss his formal probation and seal his records because he substantially complied with his probationary terms and perfect compliance was not necessary. For the reasons explained, we find no abuse and affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
The factual background of the underlying offense is taken from the probation report.
On June 2, 2016, Riverside police officers responded to a report of a robbery near Orange and Third Streets in the City of Riverside. A felony stop of the suspects' truck was conducted after a Riverside police helicopter assisted in locating the vehicle involved in the robbery. The driver of the truck was identified as minor's brother, C.K., the front passenger was identified as minor. In the rear seat of the truck were two additional minors, J.H. and J.S. All four of the suspects were taken into custody.
The victim's mother (and witness of the incident) reported that she had accompanied her son in attempting to sell his cellular phone. While the transaction was taking place, the victim's mother watched from a distance and took pictures with her own cellular phone. She saw minor get out of the front passenger seat of the truck and start talking to her son. As minor spoke to her son, her son handed his cellular phone to J.S. A scuffle ensued between minor, J.S., and her son. Minor got back inside the truck, and the victim's mother positioned her vehicle in front of the truck to stop it from fleeing the area. Minor's brother, C.K., rammed the front bumper of the victim's mother's car to escape. The victim's mother believed C.K. was going to run her over, and she feared for her life. The suspects fled in the truck, and the victim's mother followed the truck in her vehicle. As the suspects fled, the truck passengers threw several items out of the windows, hitting the victim's mother's vehicle. The objects included two beer bottles, a backpack, and the handle of a floor jack.
On June 6, 2016, the Riverside County District Attorney's Office filed a petition charging then 15-year-old minor with robbery (Pen. Code, § 211).
On July 6, 2016, the Riverside County District Attorney's Office filed an amended petition alleging that minor committed assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) and that minor received stolen property (Pen. Code, § 496, subd. (a)). That same day, minor admitted, and the Riverside County Superior Court found true, the allegations in the amended petition. The Riverside County Superior Court thereafter transferred the matter for disposition to San Bernardino County Superior Court, where minor resided.
The San Bernardino County Superior Court held the dispositional hearing on July 20, 2016. At that time, the San Bernardino County Superior Court declared minor a ward of the court and placed minor on formal probation under various terms and conditions of probation in the custody of his mother.
B. Minor's Subsequent Conduct
On February 28, 2017, minor and another juvenile stole $200 worth of marijuana from an individual. Minor and his companion then fled the scene in a vehicle as the victim was holding onto the driver's window. After minor and his companion were apprehended, the victim positively identified both suspects during an infield lineup. Minor admitted that he and his companion had preplanned an appointment with the victim and that they had agreed to take the marijuana from the victim.
On March 1, 2017, the San Bernardino County District Attorney's Office filed a subsequent petition charging minor with second degree robbery (Pen. Code, § 211), assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), and assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)).
On March 3, 2017, the San Bernardino County District Attorney's Office also filed a probation violation petition. The petition alleged that minor had violated numerous terms and conditions of his probation, in that he failed to obey all laws when he was arrested for robbery (term 1), failed to obey his parents, adults, and probation officer, and cooperate in his rehabilitation when he did not return home on February 23, 2017 (term 2), failed to obey curfew (term 7), used marijuana (term 9), and missed school (term 22).
On March 16, 2017, minor admitted violating term 7, failing to obey curfew. The juvenile court accepted minor's admission and found true the admission. The court dismissed the subsequent petition filed on March 1, 2017, and the remaining allegations in the March 3, 2017 probation violation petition.
The dispositional hearing was held on March 30, 2017. The court added five new probationary terms and continued minor as a ward of the court. The court also removed minor from his mother's custody and placed minor in an out-of-home placement with a goal of reunifying minor with his mother.
On April 14, 2017, minor was placed at Boys Republic. On July 18, 2017, staff at Boys Republic reported that minor had absconded from his placement the prior evening at 9:35 p.m. and had not returned. Minor's current whereabouts were unknown. Staff also reported that minor was suspected of being under the influence of a controlled substance on July 17, 2017. Minor reportedly felt ill, and at one point, began vomiting. As a result, minor was taken to the emergency room at Chino Valley Medical Center where he tested positive for a stomach virus, as well as for marijuana and Xanax. Minor eventually admitted to taking four Xanax pills. On his way back to the placement and upon arrival, minor was very disrespectful towards all staff he encountered, displayed defiance, used profanity, and was in noncompliance with staff directives.
On July 20, 2017, the San Bernardino County District Attorney's Office filed a probation violation petition alleging that minor violated the terms and conditions of his probation by absconding from his placement (term 26) and testing positive for marijuana and Xanax (term 27).
On July 24, 2017, minor admitted violating his probation by absconding from his placement. The court accepted and found true the admission and dismissed the remaining allegation. The court continued minor as a ward of the court and continued to remove him from his mother's custody. The court placed minor in another out-of-home placement. Minor was transferred to a youth facility in Los Angeles on July 27, 2017.
On November 6, 2017, at a permanent plan review, the juvenile court terminated the out-of-home placement, placed minor back at home with his mother, and continued minor on formal probation.
On January 29, 2018, the probation officer informed the court that since minor's last court hearing on November 6, 2017, minor had consistently checked in with his probation officer and had attended all scheduled office appointments. Minor had enrolled in anger management classes and was required to attend six sessions between February 6 and February 22, 2018. Minor's mother reported that minor "struggle[d] with finding proper coping mechanisms to deal with his anger and frustration." The probation officer also noted that on November 22, 2017, minor tested positive for THC and PCP, and on December 14, 2017, minor tested positive for THC only. Minor was admonished about his drug use and tested negative for all illicit substances on January 17, 2018. On January 24, 2018, minor had successfully completed Drug and Alcohol Level 1 classes. The probation officer stated that minor was currently attending all his classes and counseling sessions, following his mother's household rules, and treating his mother respectfully. The probation officer also asserted that visits to minor's residence and school verified minor was in compliance with his probationary terms and cooperative with probation. The probation officer, therefore, recommended that minor be discharged as a ward and the matter be dismissed.
An appearance review hearing was held on February 5, 2018. At that time, the juvenile court declined to dismiss the case and seal minor's record. The court continued minor on formal probation, and continued to monitor minor's drug testing, over minor's counsel's objections. The court explained: "The Court is still watching over you [minor] to see how you progress. So I know that it is your desire, as well as your counsel's desire, to follow probation's recommendation, have the petition dismissed, and be on your way. It does not quite work that way. If I see a clean test, then this is a non-issue. But the drug test triggered an objection from the D.A., which in my view is valid. You're still very young. You are only 16 years old. And given my concern for the reasons stated, the Court is going to continue this appearance for 60 days. . . . [¶] And probation will report to the Court how you progressed with the drug issue. If you stay clean, if you continue to respect your mom and follow orders, don't violate any law, at that point, I will consider discharging you from [probation] aftercare. . . ."
Thereafter, minor's counsel objected for the record, noting "substantial compliance is good enough for dismissal." Relying on In re A.V. (2017) 11 Cal.App.5th 697 (A.V.), counsel pointed out that in this case, minor had "met all of his other terms, despite his positive drug test" and that "[s]ubstantial completion is not 100 compliant." Counsel stated that minor did not have to meet "every single term of probation in order to get the case dismissed." The prosecutor responded that there was not substantial compliance based on his probation violations.
Responding to minor's counsel's arguments, the court clarified: "First of all, you mentioned that under In re A.V., [supra, 11 Cal.App.5th 697], the minor need not comply fully with the terms and conditions of his probation, I think is misguided. It's not the law. Also in this case, don't forget this minor has an underlying [section] 707[, subdivision] (b) offense. That's a distinguishing factor from In re A.V. [¶] Also, I want to dispelled [sic] any notion that the minor can pick and choose what terms and conditions he or she wishes to comply with. The Court, especially this Court, expects the minor to comply 100 percent with terms and conditions of his probation. There are certain circumstances when the minor comes back and says, Well, I have done nine out of ten, but these are the reasons why I could not do ten. That would give rise to the concept of substantial compliance. [¶] To say that the minor need not, as a matter of policy, not comply with every single one and expect the Court to dismiss the petition and have the record sealed, I think is heading down the wrong path and sending out the wrong message to minors who come before our system. These minors are here for a reason. They did something, not the Court, not the attorneys, not probation, the minors, themselves, did something that brought them before the juvenile court system. [¶] Once they are in the system, the Court has a duty to watch out for their best interest. This is a 608 court. Meaning, probation, counsel, and the Court must work together in the best interest of the minor and to protect the community. And in that spirit and in that vein, I don't believe it's appropriate to let minors—say, oh, you can comply with eight out of ten, and you can expect to have your records sealed. [¶] That's not my reading of In re A.V., nor my interpretation of the Welfare and Institutions Code. I expect the minor to comply 100 percent with his terms and conditions. There may be exceptions. Maybe you missed one hour of your community service, maybe you missed an office visit. That may be acceptable. But there is no blanket policy. Every case is taken on a case by case basis. [¶] In [minor's] case, the Court is taking the time to explain this because I want mom and [minor] to understand where I'm coming from. [Minor] tested positive for drugs, specifically, THC, a.k.a, marijuana. Marijuana while legal for adults, is illegal for minors. Furthermore, minors who use marijuana typically go on to use heavier, deadlier drugs. [¶] I see an opportunity here to nudge [minor] towards a life of righteousness and cleanness, drug-free life, as opposed to a life of crime. And in that vein, I'm going to exercise my discretion and continue the matter for 60 days. . . ."
On February 7, 2018, minor filed a timely notice of appeal from the order denying dismissal of probation.
III
DISCUSSION
Minor contends that the juvenile court erred in declining to dismiss his case and seal his records pursuant to section 786 because he was in substantial compliance with his probationary terms. He maintains that the court abused its discretion in requiring full compliance with probationary terms before dismissing a case.
Under section 786, subdivision (a), if a ward of the court "satisfactorily completes (1) an informal program of supervision pursuant to Section 654.2, (2) probation under Section 725, or (3) a term of probation for any offense," then the court must dismiss the petition and "order sealed all records pertaining to the dismissed petition." (§ 786, subd. (a).) A minor satisfactorily completes a term of supervision or probation if "[1] the person has no new findings of wardship or conviction for a felony offense or a misdemeanor involving moral turpitude during the period of supervision or probation and [2] 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." (§ 786, subd. (c)(1).)
However, under subdivision (d) of section 786, "A court shall not seal a record or dismiss a petition pursuant to this section if the petition was sustained based on the commission of an offense listed in subdivision (b) of Section 707 that was committed when the individual was 14 years of age or older unless the finding on that offense was dismissed or was reduced to a misdemeanor or to a lesser offense that is not listed in subdivision (b) of Section 707."
In this case, one of minor's underlying offenses in the sustained petition, committed when he was 15 years old, was assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4).) That offense is listed in Welfare and Institutions Code section 707, subdivision (b)(14). Thus, section 786 does not apply in this case.
In any event, even if we assume, for the sake of argument, that section 786 applies in the present case, we find the juvenile court properly exercised its discretion in declining to dismiss minor's case and seal his records.
A.V., supra, 11 Cal.App.5th at p. 706, states that a juvenile court has discretion to determine whether a ward of the court " 'failed to substantially comply' " with his probation. Both parties argue that the abuse of discretion is the appropriate standard of review, as it is in the review of a juvenile court's decision not to seal records pursuant to section 781. (See In re J.W. (2015) 236 Cal.App.4th 663, 668, 670.) We agree and review the juvenile court's ruling for abuse of discretion.
Under that standard, "a reviewing court will disturb the trial court's decision . . . only if, under all the circumstances, that choice is arbitrary and capricious and is wholly unreasonable. [Citation.]" (People v. Moran (2016) 1 Cal.5th 398, 403.) "Generally, the moving party bears the burden to put the supporting evidence before the court." (People v. Ochoa (2016) 248 Cal.App.4th 15, 29, fn. 3.) An appellant cannot succeed by showing that the trial court's ruling is "merely debatable." (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390.) Rather, "the appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered. [Citations.]" (In re Marriage of Connolly (1979) 23 Cal.3d 590, 598.) "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. [Citations.]" (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.)
"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 a contract) that satisfies its purpose or objective even though its formal requirements are not complied with.' [Citation.]" (A.V., supra, 11 Cal.App.5th at p. 709; cf. People v. Jacobs (1987) 43 Cal.3d 472, 483 [describing substantial compliance with statutory requirements].)
Section 202 declares the purposes underlying juvenile law: "The purpose of this chapter is to provide for the protection and safety of the public and each minor under the jurisdiction of the juvenile court . . . ." (§ 202, subd. (a).) "Minors under the jurisdiction of the juvenile court as a consequence of delinquent conduct shall, in conformity with the interests of public safety and protection, receive care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate under the circumstances." (§ 202, subd. (b).) Probation itself "guides reform, promotes accountability, and protects the public. [Citation.]" (In re Eddie M. (2003) 31 Cal.4th 480, 487-488.) "A juvenile court enjoys broad discretion to fashion conditions of probation for the purpose of rehabilitation . . . ." (In re Josh W. (1997) 55 Cal.App.4th 1, 5.) Probation conditions related to drug use are reasonable probation conditions for a minor who has issues with substance abuse. Likewise, those orders are central to the rehabilitative purpose of a minor's probation.
Minor argues that he "successfully completed drug and alcohol training, declined his drug usage until he tested negative, he attended school, and listened to his mother and probation officer without new violations." He further asserts that the juvenile court abused its discretion when it determined 100 percent compliance was required, rather than substantial compliance under section 786, prior to dismissal of his case. Minor's achievements are commendable, but do not negate his shortfalls while on probation, which the juvenile court properly found were within his capacity to avoid. Furthermore, a thorough analysis of the juvenile court's statements show that the court was not requiring minor to be 100 percent compliant. Rather, the court's comments demonstrate that under the circumstances of this case, it was not in minor's best interest to dismiss the case and no longer have supervision.
Minor had an ongoing and significant history of failing drug tests. He also had a significant history of committing serious felonies, one involving a marijuana robbery. From August 2016 to March 2017, he failed four of seven drug tests. Shortly before his February 5, 2018 review hearing, although testing negative for drugs on January 17, 2018, minor tested positive for THC and PCP on November 22, 2017, and tested positive for THC on December 14, 2017. Minor's mother also reported that minor "struggle[d] with finding proper coping mechanisms to deal with his anger and frustration," and minor still had remaining anger management sessions to complete. Moreover, minor had previously been given leniency on the March 1, 2017 subsequent petition, which included a robbery charge, a section 707, subdivision (b) offense. The remaining allegations in the March 3, 2017 probation violation petition, which included minor's use of marijuana and Xanax, were dismissed as part of an agreement. These defaults, central to the rehabilitative purpose of minor's probation, were far from technical or insignificant under the circumstances.
In light of minor's continued failure to comply with the reasonable orders of his supervision, which were central to the rehabilitative purpose of minor's probation and within his capacity to perform, the juvenile court did not abuse its discretion in finding that, based on recent positive drug tests, continued monitoring of minor's drug use was necessary. The court's finding that minor did not substantially comply with his probation supervision was well within the bounds of reason. Thus, the juvenile court did not abuse its discretion when it declined to dismiss minor's case and seal his records under section 786.
Minor contends the circumstances of his case are similar to A.V., supra, 11 Cal.App.5th 697, where the Court of Appeal ordered a juvenile court to seal a minor's records pursuant to section 786. There, the prosecutor filed a section 602 petition against the minor, charging him with possession of marijuana for sale, a felony, and possession of concentrated cannabis, a misdemeanor. (Id. at p. 701) The minor initially was placed on deferred entry of judgment probation with terms and conditions. (Ibid.) While on probation, the minor failed two drug tests. (Id. at p. 702) Because of this, the juvenile court vacated the minor's deferred entry of judgment probation, declared him a ward of the court, and placed him on probation. (Ibid.) The minor initially struggled to comply with the terms and conditions of his probation. Within the first month of his probation, the probation department filed a notice alleging that the minor violated his probation by smoking marijuana and disobeying his curfew. (Ibid.) The minor admitted the violation and the juvenile court reinstated probation with a condition that he spend 30-45 days in juvenile hall. (Id. at p. 702) Six months later, the minor violated probation a second time by possessing marijuana on school grounds. (Ibid.) After the second violation, the minor's compliance with the terms and conditions of his probation improved considerably. The minor tested negative for drugs, his parents reported " 'exceptional' " behavior at home, he worked part-time, he had no behavioral referrals or unexcused absences from school, and he completed the remaining conditions of his probation. (Id. at pp. 703-704) The minor's grades dipped temporarily and the juvenile court continued probation but commended his progress. (Id. at p. 703) The minor improved his grades, and six months after his second violation, the probation department submitted a report recommending that the juvenile court dismiss the minor's petition because he had completed all of the conditions of his probation. (Id. at 704) The juvenile court commended minor's performance on probation, terminated jurisdiction over him, and dismissed the minor's petition, but declined to seal the minor's records, citing his earlier violations. (Ibid.)
On appeal, the appellate court addressed a question of statutory interpretation: "whether, under section 786, a ward's compliance with his or her probation can be satisfactory for dismissal purposes, and yet unsatisfactory for record-sealing purposes." (A.V., supra, 11 Cal.App.5th at p. 704, italics omitted.) It answered that question in the negative, holding: "The court has the discretion under section 786 to find the ward has or has not substantially complied with his probation so as to be deemed to have satisfactorily completed it; but if the court finds the ward in substantial compliance so that he or she has satisfactorily completed probation, the court must dismiss the petition and seal the ward's records in accordance with the statute." (Id. at p. 701) After reviewing the record, the Court of Appeal concluded that the juvenile court's dismissal of the minor's petition reflected its "discretionary estimation" that the minor substantially complied with the conditions of his probation. (Id. at pp. 711-712) Accordingly, the Court of Appeal reversed the juvenile court's order and remanded the matter, ordering the juvenile court to issue an order dismissing the minor's petition and sealing his records under section 786. (Ibid.)
Pointing to the similarities between the minor's compliance in A.V. and minor's compliance here, minor argues that he likewise substantially complied with the conditions of his probation and thus qualifies for dismissal of his case and automatic sealing under section 786. This argument ignores the Court of Appeal's reasoning. It was not the minor's performance on probation that led the Court of Appeal in A.V. to order his records sealed. Rather, the A.V. court ordered the minor's records sealed because it concluded, based on the juvenile court's dismissal of the minor's petition and its statements at the hearing, that the minor had substantially complied with the terms and conditions of his probation. (A.V., supra, 11 Cal.App.5th at p. 711.)
Here, there was no such dismissal or termination of jurisdiction over the minor, and nothing in the record suggests that in the juvenile court's "discretionary estimation," minor had substantially complied with the terms and conditions of his probation. On the contrary, here, the juvenile court's finding was that minor failed to substantially comply with the orders of his probation supervision. Whether a minor has failed to substantially comply with the probation terms is a factual matter reviewed for substantial evidence. (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 694.) The essential requirement and objective of the drug term was for minor not to knowingly possess or use any controlled substance. It is undisputed that refraining from the use of illegal drugs was a key probation condition. The juvenile court could reasonably find that minor's use of illegal drugs resulting in six failed drug tests, including two failed tests close in time to the February 5, 2018 appearance hearing at issue, did not constitute substantial compliance with essential requirements of the probation terms satisfying the purpose or objective of the probation conditions. As we have already discussed, this finding was not an abuse of discretion. Moreover, as the juvenile court observed, A.V., supra, 11 Cal.App.5th 697, unlike the instant matter, did not involve an underlying section 707, subdivision (b) offense. Thus, unlike in A.V., the juvenile court was not required to automatically seal minor's records. Accordingly, the juvenile court correctly found that A.V. is distinguishable from the present case.
A juvenile court may terminate jurisdiction over a ward of the court "when it is satisfied that further supervision is unnecessary. [Citations.]" (In re W.R.W. (1971) 17 Cal.App.3d 1029, 1037, fn. omitted; see § 775 ["Any order made by the court in the case of any person subject to its jurisdiction may at any time be changed, modified, or set aside, as the judge deems meet and proper . . . ."].) A juvenile court may terminate jurisdiction over a ward of the court without dismissing the petition that led to wardship. (See § 782 [allowing the juvenile court where a petition was filed against a minor to dismiss the petition after wardship is terminated].) Here, the juvenile court did not terminate jurisdiction over minor on account of his recent positive drug tests and in consideration of his best interest. Minor does not contend this was improper. Rather, he argues that the juvenile court erred by finding 100 percent compliance was required to dismiss his case and seal his records and that he substantially complied with the orders of his probation. --------
Based on the foregoing, we conclude the juvenile court did not abuse its discretion in declining to dismiss minor's case and seal his records under section 786.
IV
DISPOSITION
The juvenile court's order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. MILLER
J.