Opinion
F074610
09-27-2017
In re E.P., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. E.P., Defendant and Appellant.
Candice L. Christensen, 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, Kathleen A. McKenna and John W. Powell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14CEJ600414-2)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Gregory T. Fain, Judge. Candice L. Christensen, 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, Kathleen A. McKenna and John W. Powell, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
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INTRODUCTION
Welfare and Institutions Code section 786 provides that upon successful completion of probation by a juvenile, the petition shall be dismissed and all records sealed. Appellant E.P. challenges the juvenile court's order determining him to be ineligible for relief pursuant to section 786 as premature because he still is on probation. We affirm.
References to code sections are to the Welfare and Institutions Code unless otherwise specified. --------
FACTUAL AND PROCEDURAL SUMMARY
A juvenile wardship petition pursuant to section 602 was filed on June 29, 2015 alleging E.P. had committed two offenses. At a jurisdictional hearing on August 24, 2015, E.P. admitted to the offense of possession of a firearm by a minor, a violation of Penal Code section 29610, in exchange for dismissal of another count alleging assault with a firearm. The juvenile court considered whether the offense admitted by E.P. should be deemed a felony or misdemeanor, ultimately deeming it a felony.
At the September 8, 2015 disposition hearing, E.P. was adjudged a ward of the juvenile court and placed on probation until October 8, 2016, while remaining in the physical custody of his parents. Terms and conditions of his probation included serving 60 days on an electronic monitor, obeying all laws, refraining from the use of illegal narcotics or controlled substances, and attending psychological and substance abuse counseling or treatment as directed by the probation department. The juvenile court set three years as the maximum period of confinement.
On July 29, 2016, a supplemental petition for modification was filed, alleging probation violations and seeking to remove E.P. from the physical custody of his parents. It was alleged that E.P. tested positive for cocaine on January 14, 2016; tested positive for marijuana and presumptively positive for cocaine on July 14, 2016; and failed on three occasions to report to his probation officer.
A probation violation hearing was held on August 17, 2016. E.P. admitted violating his probation by testing positive for drugs. The juvenile court found that E.P. had violated the terms of his probation and revoked probation.
The probation officer's report and recommendation addressed section 786. The probation officer opined that E.P. had not satisfactorily completed the terms and conditions of probation and recommended that section 786 "consideration not be given at this time."
At the September 22, 2016, disposition hearing, the juvenile court began by asking the parties if they had any additions or corrections to the probation report. Counsel for E.P. objected to section 786 relief being denied. The juvenile court found that E.P. had not satisfactorily complied with the terms of probation in that he had tested positive multiple times for drugs and had not completed substance abuse counseling. The juvenile court found E.P. ineligible for section 786 relief. The juvenile court revoked, but then reinstated probation, until September 22, 2017. E.P. also was committed to juvenile hall for 30 days, followed by release on electronic monitoring for a period not to exceed 30 days.
A timely notice of appeal was filed October 28, 2016.
DISCUSSION
E.P.'s sole contention on appeal is that the juvenile court acted prematurely in finding him ineligible for section 786 relief because he had another year on probation.
Standard of Review
An order under section 786 is reviewable for abuse of discretion. (See In re A.V. (2017) 11 Cal.App.5th 697, 711 (A.V.); In re J.W. (2015) 236 Cal.App.4th 663, 667-668 [§ 781 orders].) "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.)
Analysis
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.' " (A.V., supra, 11 Cal.App.5th at p. 709.)
E.P. was placed on one year's probation on September 8, 2015. Approximately four months later, on January 14, 2016, he tested positive for cocaine. He then tested positive for marijuana and presumptively positive for cocaine on July 14, 2016. At the September 22, 2016 hearing on the probation violations, E.P. admitted he still "struggled" with substance abuse and to maintain sobriety. E.P. also had not completed the required substance abuse counseling as of September 22, 2016.
Here, the juvenile court found that E.P. was in violation of the terms and conditions of his probation and revoked probation, although it was reinstated. E.P.'s current term of probation is due to expire September 22, 2017, and he contends any determination of section 786 eligibility is premature.
Section 786, subdivision (a) addresses satisfactory completion of a term of probation for an offense. A probationer may at any time during the period of probation engage in conduct that would preclude a finding of substantial compliance. (§ 786, subd. (c)(1).) We find nothing in the language of section 786 that precludes a juvenile court from making a finding of ineligibility when a probationer had demonstrated a failure to substantially comply before the term of probation ends. Appellate courts may not add provisions to a statute or rewrite it "to conform to an assumed intent that does not appear from its plain language." (People v. Connor (2004) 115 Cal.App.4th 669, 692.) E.P.'s initial term of probation was for one year; he failed substantially to comply because he did not complete substance abuse counseling within the required time period and continued to use illegal substances, testing positive.
We acknowledge that perfect compliance is not required, only "substantial compliance." (A.V., supra, 11 Cal.App.5th at p. 709.) Substantial compliance is a determination to be made by the juvenile court in an exercise of its discretion. (Id. at p. 711.) We find no abuse of discretion. (In re Joey G., supra, 206 Cal.App.4th at p. 346.)
Even though E.P. has been determined to be ineligible for section 786 relief, the juvenile court's ruling does not preclude him from petitioning to seal his records under section 781. (§ 781, subd. (a)(1)(A); Cal. Rules of Court, rule 5.830.)
DISPOSITION
The order filed September 23, 2016, deeming E.P. ineligible for section 786 relief is affirmed.