Opinion
A148770 A149300 A149994
11-03-2017
In re A.W., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.W., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. Nos. JV26142B, JV26142C, JV26142F)
A.W. (minor) appeals from the juvenile court's order deeming his probation unsatisfactory under Welfare and Institutions Code section 786 and finding him not rehabilitated under section 781 and from the court's subsequent order that minor pay one of his victims a determined amount of restitution. Minor contends, first, that the juvenile court breached its contract with him in not finding he satisfactorily completed probation and, second, that the court lacked jurisdiction to determine the amount of restitution after probation was terminated.
Further undesignated statutory references are to the Welfare and Institutions Code.
Minor's second contention has merit. We reverse the order of restitution that post-dated termination of probation. Otherwise, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Petition A
In October 2014, a high school staff member smelled marijuana, searched minor's backpack, and found four grams of marijuana. In April 2015, a 17-year-old boy reported that minor had pushed him in the chest and punched him in the face two or three times, causing visible swelling and injury. As a result of these incidents, the Marin County District Attorney filed a section 602 wardship petition in June 2015, charging minor with misdemeanor battery (Pen. Code, § 242; count 1) and misdemeanor possession of marijuana on school grounds (Health & Saf. Code, § 11357, subd (e); count 2). The next month, minor admitted count 1. The court declared him a ward of the court, placed him on probation for one year, and dismissed count 2.
Petition B
In May 2015, California Highway Patrol officers in Yolo County conducted a traffic stop of minor because he was driving erratically. There were three juvenile passengers, one of whom was extremely intoxicated, and the car minor was driving had been reported stolen in Marin County. Minor told the officers that he found the car. Minor was searched, and officers found credit and debit cards that belonged to the owner of the stolen car, as well as a debit card that belonged to a second person and insurance, debit, and identification cards that belonged to a third person.
In October 2015, the prosecution filed a supplemental petition charging minor with taking a vehicle without the owner's consent (Veh. Code, § 10851, subd. (a); count 1), receiving a stolen vehicle (Pen. Code, § 496d, subd. (a); count 2), misdemeanor receiving stolen property (Pen. Code, § 496, subd (a); count 3), and misdemeanor driving without a valid license (Veh. Code, § 12500, subd. (a); count 4).
In December 2015, the parties agreed to dismiss Petition B, with the facts of Petition B to be considered in the disposition of Petition C (see below).
Petition C
In November 2015, Hercules police officers stopped minor while he was driving a car that had been stolen in San Francisco. Minor told the officers that he bought the car from "Joe" for $1,000. The Contra Costa County District Attorney filed an original wardship petition charging minor with unlawful taking or driving of a vehicle (Veh. Code, § 10851, subd. (a); count 1), a felony. Minor entered a plea of no contest to count 1. The Contra Costa County juvenile court then transferred the case to Marin County, which designated the matter Petition C.
In December 2015, the Marin County juvenile court held a disposition hearing and found minor unsuitable for deferred entry of judgment as to Petition C. The court continued minor as a ward and placed him on probation for an indefinite period.
Petition D
Between January 4 and February 1, 2016, minor missed 10 days of school without excuse. In January 2016, Novato police officers detained minor after he was observed in a Target store concealing merchandise in two backpacks and trying to leave the store without paying. The officers released minor with a citation.
In February 2016, the Probation Department filed a notice of violation of probation alleging minor committed petty theft and missed school for 10 days. Minor admitted violating probation as alleged. The court continued minor as a ward, reinstated probation for an indefinite period, and ordered him to serve 15 days in juvenile hall with credit for two days in custody.
Among other conditions of probation, minor was required to lead a law-abiding life and attend school without absence unless excused by a parent or school authorities.
Petition E
In February 2016, minor shoved a high school campus supervisor and said, "get the fuck off me." The prosecution filed a notice of violation of probation/court order. Minor admitted violating probation as alleged, and the court continued him as a ward, reinstated probation, and ordered him to serve four days in juvenile hall with credit for two days in custody.
Petition F
In March 2016, a San Rafael police officer was dispatched to a parking lot on a report that a group of men were standing around a vehicle with guns in their waistbands. Upon arriving at the parking lot, the officer observed minor get out of the driver's seat of a parked car. Two others got out of the car, and three people stood outside the car. All subjects attempted to flee, but officers detained them. The parked car had been stolen in Richmond, and one of the subjects (not minor) admitting to stealing the car. Minor admitted that he drove the car to San Francisco to buy marijuana but denied knowing the car was stolen.
The prosecution filed a supplemental wardship petition charging minor with receiving a stolen vehicle (Pen. Code, § 496d, subd. (a); count 1) and driving without a valid driver's license (Veh. Code, § 12500, subd. (a); count 2), a misdemeanor. Minor admitted count 1 as a misdemeanor, and the court dismissed count 2.
At a disposition hearing held the next month, the juvenile court (Honorable Faye D'Opal) reinstated probation with the prior conditions, plus new conditions that minor was to remain in juvenile hall, complete his GED, obtain a driver's permit or license, seek employment under the guidance of Dan Daniels of the Youth Working for Change program, and enroll in College of Marin with help from Robert Flynn. Minor was ordered detained at juvenile hall until his 18th birthday, which amounted to 94 days in custody with 24 days of credit for time served.
In June 2016, the court (Honorable Beverly Wood) held a status conference. Minor was about to turn 18 and be released from juvenile hall. The court terminated probation upon minor's release from custody and deemed probation "unsatisfactory without prejudice."
Minor requested a contested hearing on whether probation was completed satisfactorily, which the court granted. In July 2016, the contested hearing was held before Judge D'Opal.
Whether probation was deemed satisfactorily completed is significant to minor because, under section 786, when a ward "satisfactorily completes" a term of probation, "the court shall order the petition dismissed" and "shall order sealed all records pertaining to the dismissed petition . . . ." (See In re A.V. (2017) 11 Cal.App.5th 697, 705.)
On August 3, 2016, Judge D'Opal deemed minor's probation unsatisfactory for purposes of section 786.
On November 17, 2016, the court ordered minor to pay restitution of $1,968 to the identified victim in Petition C whose car was stolen.
DISCUSSION
A. Unsatisfactory Completion of Probation and Failure to Establish Rehabilitation
Minor contends the juvenile court entered into a contract with him at the April 7, 2016, hearing, in which it promised to order all of his juvenile records sealed if he met certain goals, minor then met those goals, but the court breached its contract with him by refusing to deem his probation satisfactory so that his records could be sealed. He claims he is entitled to specific performance in the form of an order from the court that he satisfactorily completed probation. This claim lacks merit.
1. Background
In anticipation of the disposition hearing for Petition F, the Probation Department filed a memo to the juvenile court in April 2016, recommending that minor remain detained in juvenile hall until his 18th birthday and that his probation be dismissed as unsuccessful. The Probation Department found that minor had not taken any of his conditions of probation seriously. In addition to the serious charges of law violations, the memo detailed that minor failed to attend school, failed to participate in counseling on a consistent basis, and admitted to smoking marijuana regularly. Further, minor had been referred to Dan Daniels at the Youth Working for Change program about employment opportunities, so minor could start working and begin paying his restitution. Daniels attempted to set several meetings with minor, but minor never followed up.
We note that the parties and the court appear to use the term "successful" and variants interchangeably with "satisfactory." The relevant question for sealing the record under section 786 is whether minor's completion of probation was "satisfactory."
In conclusion, the Probation Department recommended that minor be detained in juvenile hall in "the hope this last detention will aid in the minor finding something he has never found before in detention, which is a desire to change his life choices." More concretely, the department hoped that, while in juvenile hall, minor would participate in counseling, study for his GED, meet with Daniels to plan for a job search, and meet with Flynn about enrolling in College of Marin upon his release.
Minor wrote a letter to the court "begging" for "this last chance to do better and be successful." He claimed the circumstances of the most recent petition were not his fault, he was trying to get his life together, but he was "at the wrong place at the wrong time." He wrote that he wanted to stay on probation and show the court and his family that he could finish probation successfully and "start my adult life off of [sic] a clean slate."
On April 7, 2016, the court held the disposition hearing. At that time, minor's 18th birthday was less than three months away. Judge D'Opal agreed with the Probation Department's recommendation to detain minor until he turned 18. Addressing minor, the judge explained the court would "plac[e] you in the Hall with very specific objectives, one, get your GED completely done; two, work with Dan Daniels, get a job. . . . And with regard to college, community college, . . . work[] with Mr. Flynn . . . ."
The prosecutor asked whether the court was also making a finding of termination of probation as unsuccessful as recommended by the Probation Department. Judge D'Opal responded, "The Court will reserve that. The idea here is that [minor] is going to go through these key elements that have been described and if he completes all of these key elements the Court will consider him rehabilitated and at that point in time his juvenile records will be sealed. And I don't think this is a strange language to [minor] in terms of the expectations and meaning. From my point of view he is quite capable of achieving these things. . . . [T]o actually get the GED completed, driver's license, jobs, . . . [to get] in the College of Marin, it's going to take real almost day-to-day, week to week, work with experts to help you get there and everybody wants you to do it and I do not believe that you would be able to do it without th[e] kind of structure" provided by juvenile hall.
It appears that Judge D'Opal meant by this that if minor completed these tasks, she would find probation had been completed satisfactorily, given that satisfactory completion of probation would mean the minor's records would be sealed under section 786. Alternatively, the judge may have meant that she would find minor had attained "rehabilitation" and would seal his records under section 781.
As we have described, Judge D'Opal ordered minor detained in juvenile hall until he turned 18. The court reinstated probation with the prior conditions and added the new conditions that minor was to complete his GED, obtain a driver's permit or license, seek employment with help from Daniels, and enroll in College of Marin with help from Flynn.
On July 25, 2016, the contested hearing before Judge D'Opal was held on whether minor had completed probation satisfactorily or established he had been rehabilitated. Minor called Frank Peterson from the Probation Department as a witness, and minor testified on his own behalf.
At the start of the hearing, minor's attorney stated that the contested issues were whether minor was "entitled to sealings under [sections] 786 and/or 781." In other words, did minor complete probation satisfactorily (which would entitle him to sealed records under section 786) and can minor establish that he has attained rehabilitation (which would entitle him to sealed records under section 781)?
Peterson testified that, while minor was in juvenile hall, he completed his high school credits, he studied for the driver's license test (but was unable to take the test), but he did not enroll in College of Marin, and he did not work with Daniels to find a job. When Peterson talked to him about College of Marin, minor said it was more important for him to work, and he would pursue community college at a later time. Minor was released from juvenile hall in June 2016. Peterson spoke to minor's mother on July 20, 2016. At that time, minor had a job, but he had not seen Daniels, and his mother did not know whether he had obtained his driver's license. Peterson explained that, in considering whether probation was successful, the Probation Department looked at the last three months of minor's probation term to see whether he was in compliance. Minor was not in compliance prior to his confinement in juvenile hall. (Recall he was detained for less than three months.) Before confinement, minor was not attending school, he was not meeting curfew, and he was regularly using illicit drugs. Based on these considerations, the Probation Department stood by its original recommendation that probation was unsuccessfully completed. In addition, Peterson did not recommend sealing minor's record under section 781.
Peterson testified that Daniels had met with minor previously and Daniels felt that minor was not motivated. As a result, Daniels wanted minor to demonstrate he was motivated by making the effort to go see Daniels after he was released from juvenile hall.
On cross-examination, Peterson testified that minor missed some days of school while he was in juvenile hall because he was removed from class for being disruptive. Minor did not ask for any job applications or seek advice on job hunting while he was in juvenile hall.
Minor testified that, after he was released from juvenile hall, he took a driver's license test and did not pass. He had a job as a full-time babysitter for his sister's children and was paid through the government. On cross-examination, minor admitted he smoked marijuana regularly throughout the course of probation. When he was placed on probation for Petition A, minor was required to do 20 hours of community service, but that requirement was deleted in the disposition for Petition C so he could work and start making restitution payments. Minor had not completed his community service and made no restitution payments. Minor never talked to Flynn about enrolling in College of Marin. There was no evidence minor ever made contact with Daniels after minor was released from juvenile hall.
The prosecutor took the position that minor did not complete the tasks set forth by the court in the April 7 hearing—he did not obtain a driver's license or permit, he did not contact Flynn or enroll in the College of Marin, and he did not contact Daniels about employment. She argued that minor's probation should not be deemed satisfactory under section 786 because his record on probation was "dismal" except the last few weeks of probation while he was in juvenile hall, and "he was only successful [then] because there was nowhere to hide, nowhere to run." She further argued that minor was not entitled to sealing of his record under section 781 because there was insufficient evidence that he had attained rehabilitation.
Minor's attorney responded that minor finished school, got a job, and "in fact, he cooperated in everything that he needed to do at juvenile hall . . . ." He stated that minor had done everything within his power to meet the key elements the court imposed at the April 7 hearing, and urged the court to "be an example to [minor] that when someone gives their word, that they follow through with regard to their word."
The court took the matter under submission.
On August 3, 2016, Judge D'Opal issued her decision "regarding if there was a successful or unsuccessful termination of supervised probation for [minor] and whether the juvenile records, per Welfare and Institutions Code 786 or 781, would be sealed or unsealed." She found that minor received his GED and had a job, but (1) he did not pass a driver's test, (2) while in juvenile hall and after he got out, minor did not contact Daniels regarding employment, (3) when he was in juvenile hall, minor did not attend school every day, and (4) he made no contact with Flynn or College of Marin. Further, he smoked marijuana throughout probation and he never started making payments in restitution. The court concluded, "[Minor] did not complete the required objectives while in custody pursuant to the F Petition, in custody at Juvenile Hall, or since his release from Juvenile Hall custody."
The court found and ordered that minor had "not been rehabilitated in the context of Petition F. His supervised probation is deemed unsuccessful and there is insufficient information to support sealing pursuant to [section] 786."
2. Analysis
Minor offers no case law supporting his proposition that a court's statements when imposing probation terms can create a contract enforceable under civil contract law, and he acknowledges that juvenile court orders are not generally construed by resort to civil contract principles. Nonetheless, minor argues the juvenile court offered him a contract on April 7, 2016, promising to seal his records if he did certain things, minor accepted, and the court breached the contract.
"[T]here are four essential elements of a contract: parties capable of contracting, their consent, a lawful object, and a sufficient cause or consideration." (Schaefer v. Williams (1993) 15 Cal.App.4th 1243, 1246 [citing Civil Code section 1550].) We reject minor's contract claim for lack of consideration. As the Attorney General points out, minor "negotiated nothing; he gave up nothing in exchange for the court's leniency." The juvenile court had full authority to impose reasonable probation terms regardless of whether minor accepted them, and minor was obliged to comply with those terms regardless of whether he promised to do so. Minor's asserted "promise" to comply with the probation terms was not adequate consideration to support a contract because minor already had a duty to act within the law. (See US Ecology, Inc. v. State of California (2001) 92 Cal.App.4th 113, 128-129 ["A promise to perform a preexisting legal duty is not supported by consideration."]; Schaefer v. Williams, supra, 15 Cal.App.4th at pp. 1246-1247.)
Moreover, even if we accept the premise of minor's claim (that the parties formed a contract at the April 7, 2016 hearing), we see no error in the court's ruling. Judge D'Opal expected minor to contact Daniels about employment, enroll in community college with the help of Flynn, and obtain a driver's license or permit. The judge indicated that if minor accomplished those tasks, then she would consider him rehabilitated. But minor did not accomplish those tasks. He did not contact Daniels about employment even after he was released from juvenile hall, he never contacted Flynn, he made no any effort or take any steps to enroll in community college, and as of July 25, 2016, he still did not have a driver's license or permit. Assuming for the sake of argument that Judge D'Opal's "promise" to minor created an enforceable contract (it did not), minor did not meet the terms of that contract, and the court was under no obligation to seal minor's records. B. Restitution
Minor argues he sufficiently met the terms set by Judge D'Opal because he got a babysitting job and he unilaterally decided that community college could wait. (He asserts he "prioritized obtaining employment over entering the College of Marin . . ., which is a reasonable choice consistent with his rehabilitation and consistent with the court's instruction to get a job.") But Judge D'Opal clearly viewed working with Daniels and Flynn specifically as key to minor's rehabilitation. At the April 7, 2016 hearing, the court said to minor: "And for those of you who know Dan Daniels you will get a job, a real good job, and then Mr. Daniels will apply himself and work with you as long as you are interested. And with regard to college, community college, and working with Mr. Flynn, Mr. Flynn has almost 100 percent success in working with juveniles that he helps get into College of Marin. Supports them through their classes, and they move on to other learning centers, or they get full-time jobs." Given the court's emphasis on working with Daniels and Flynn, we reject minor's position that he complied with the alleged "contract" despite never meeting with either Daniels or Flynn. --------
Under section 730.6, subdivision (a)(1), when a person is declared a ward of the court under section 602 and his or her victim "incurs an economic loss as a result of the minor's conduct," the court may order the ward to pay restitution directly to the victim. Section 730.6, subdivision (h)(1), provides, in relevant part, that restitution "shall be imposed in the amount of [the victim's] losses, as determined. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court at any time during the term of the commitment or probation." (Italics added.)
Minor contends the court had no jurisdiction on November 17, 2016, to determine the amount of restitution to be paid to the victim in Petition C because probation terminated in June 2016. The Attorney General concedes that the juvenile court could not determine the amount of restitution after the termination of probation. He argues, however, that the court set the restitution amount during the probation period on December 15, 2015.
The question, therefore, is whether the juvenile court, in fact, determined the amount of restitution to be paid to the Petition C victim at the December 15, 2015, hearing. The record demonstrates it did not.
On December 15, 2015, the Probation Department filed a memorandum with the court in anticipation of the disposition hearing on Petition C; it listed the victim's claimed losses from having his car (and the contents of the car) stolen. At the disposition hearing held the same date, however, the court did not determine that the amount of restitution was the precise amount the victim claimed. To the contrary, the court stated, "There's restitution that I won't place on the record here, in terms of restitution to [Petition C victim] Jeremy Kharrazi, and the amount of that restitution has yet to be determined." (Italics added.) Thus, the court did not believe it was determining the amount of restitution owed to Kharrazi at the December 15, 2015, hearing.
Nor did the Probation Department believe the amount of restitution owed to the victim was determined at the December 15, 2015, hearing. Subsequently, in March 2016, there was a hearing on determination of the restitution amount for the victim in Petition B (whose car was stolen and recovered in Yolo County). At that time, Tony Raitano from the Probation Department submitted an itemized expense list from the victim, receipts, and a letter from the victim. The hearing was only about the victim in Petition B. Raitano told the court the Probation Department had not yet heard from the victim in Petition A (who was punched) or from Kharrazi, the victim in Petition C, so "we're requesting that that matter be continued until June, just to give the victim one more attempt to reach out to us." Thus, the Probation Department understood, after December 15, 2015, that the amount of restitution owed to Kharrazi was yet to be determined.
The record demonstrates the juvenile court did not determine the amount of restitution to be paid to Kharrazi at the December 15, 2015, hearing. Minor's probation term ended in June 2016. By statute, the court could not determine the amount of restitution to be paid to Kharrazi after minor's probation term ended. Consequently, the court's November 17, 2016, order that minor to pay Kharrazi restitution of $1,968 is reversed.
DISPOSITION
The juvenile court's order of November 17, 2016, ordering minor to pay Jeremy Kharrazi restitution of $1,968 and the restitution judgment for Kharrazi issued in December 2016, are reversed. In all other respects, the judgment is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Richman, J.