Opinion
G054243
03-29-2018
In re RAYMOND C, a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. RAYMOND C., Defendant and Appellant.
Susan L. Ferguson, 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, A. Natasha Cortina and Meagan J. Beale, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DL051251-001) OPINION Appeal from an order of the Superior Court of Orange County, Lewis W. Clapp, Judge. Reversed and remanded with directions. Susan L. Ferguson, 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, A. Natasha Cortina and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
In November 2015, then 13-year-old Raymond C. entered a plea admitting that he had committed battery against his father. Raymond entered into a disposition agreement whereby he would serve 12 months on supervised probation, perform community service, and complete an anger management program. The agreement provided he could return to court in one year and request to withdraw his plea. The juvenile court accepted Raymond's plea, placed him on probation, and set a wardship review hearing and a hearing on a motion to withdraw his plea and dismiss the case.
In January 2016, the court granted Raymond's request for permission to leave the country to live with his mother in Costa Rica; Raymond has since remained in Costa Rica with no plan to return to the United States to live or visit. At the time of the November 2016 wardship review hearing and hearing on the motion to withdraw the plea and dismiss the case, it is undisputed that Raymond had completed all the terms of the disposition agreement, including community service and an anger management program. Nevertheless, the court ordered Raymond to continue as a ward of the court and further ordered the hearing on the motion to withdraw the plea continued for 90 days, effectively denying Raymond's motion to withdraw his plea. The court did so on the ground Raymond had not been supervised by probation for a full year given his relocation to Costa Rica.
We reverse the juvenile court's order denying the motion to withdraw Raymond's guilty plea and direct the court on remand to order the juvenile delinquency petition dismissed and the related records sealed. (See Welf. & Inst. Code, § 786, subd. (a).) The record shows the juvenile court effectively modified Raymond's probation to be unsupervised when the court permitted Raymond to live with his mother in Costa Rica and relieved the probation department from a duty to supervise him.
BACKGROUND
A juvenile delinquency petition, filed in the Orange County Juvenile Court, alleged that in October 2015, Raymond committed a battery in violation of Penal Code section 243, subdivision (e)(1), against his father. In November 2015, Raymond admitted he committed the alleged offense and signed a disposition agreement in which he agreed to be placed on supervised probation with terms and conditions that included he spend six days in a juvenile facility, complete 80 hours of community service, and enroll in and complete a 10-week anger management program. The disposition agreement, which was also signed by Raymond's counsel and the prosecutor, provided that Raymond "may return in 1 year and request a plea withdrawal, subject to the Court's discretion."
At a hearing on November 3, 2015, the juvenile court found a factual basis for Raymond's plea and found the allegations of the petition true beyond a reasonable doubt. The court declared Raymond a ward of the juvenile court and placed Raymond on supervised probation with terms and conditions. After the court confirmed that Raymond understood the terms and conditions of probation, the following colloquy ensued:
"The Court: In one year if you've done everything that we've asked you to do, you can return to this court, you can withdraw your plea, we'll dismiss the case and seal the record, but you have to make sure that you do everything that it says on this form; okay?
"[Raymond]: Yes, sir. [¶] . . . [¶]
"The Court: It is just—it is just a matter of you doing it. There is—that one year date is going to be 11-3-16 and that's for plea withdrawal and dismissal. And you'll be released today back to the custody of your parent or guardian, your father.
"[Raymond]: Yes."
The court scheduled the hearing on the motion for plea withdrawal and dismissal for November 3, 2016.
On December 9, 2015, Raymond and his father appeared in juvenile court to request permission for Raymond to travel to Costa Rica to visit his mother; his trip was tentatively scheduled from December 18 through January 3. The prosecutor did not oppose the request.
Raymond's father asked whether they needed to return to court if Raymond was unable to travel on those specific dates. The court responded: "No. I'm going to allow him to travel." The court stated that Raymond was required to report to his probation officer as soon as he returned from his trip. The court ordered Raymond to continue as a ward of the juvenile court and further ordered that all prior terms and conditions of his probation would remain in effect.
At a January 5, 2016 review hearing, the court was informed that Raymond had not travelled to Costa Rica as scheduled, and had been doing well. The court confirmed the November 3, 2016 date for wardship review and motion to withdraw the plea.
On January 27, 2016, Raymond's counsel appeared in court because Raymond's father planned on having Raymond "live back home with his mother in Costa Rica." Raymond's counsel asked "if it is okay if probation could relieve supervision and we could still come back for wardship status review. If he comes back to the United States, he would be ordered to report to probation within 48 hours." The court asked for documentation proving Raymond was going to Costa Rica and verification that "he's done everything else he needs to do" so that probation could be relieved of supervision once Raymond traveled to Costa Rica to live with his mother.
Two days later, the court received proof of Raymond's airline ticket. The probation officer also informed the court that Raymond was in compliance with the terms and conditions of probation. The probation officer requested that the court order Raymond to continue as a ward of the court on the prior terms and conditions of probation and also requested the court to order "probation to be relieved of supervision." On January 29, 2016, the juvenile court ordered that Raymond continue as a ward of the juvenile court, with all prior orders to remain in full force and effect, and that probation was relieved of supervision. The court further ordered the hearing scheduled for November 3, 2016 "to remain."
In a report entitled "Information for Court Officer" dated November 3, 2016, the probation officer stated: "[Raymond]'s case last appeared in court on January 29, 2016 for a Further Proceedings hearing. [Raymond] was continued as a ward and Probation was relieved of supervision due to [Raymond] moving to Costa Rica to live with his mother. The matter was continued to today's date for a Progress Review/Motion to Withdraw Plea hearing. [¶] On October 12, 2016, a record check revealed no new violations or pending actions. All Court orders have been met, including completion of 80 hours of volunteer community service and a ten week anger management program. The undersigned last contacted [Raymond]'s father by telephone on October 28, 2016. He states [Raymond] is still living with his mother in Costa Rica and there are no plans for him to return to California. [Raymond] is going to school and playing on the school soccer team. He states [Raymond] appears to be doing well there with no problems to note."
The probation officer's report further stated: "A recommendation for continuation is offered below for the Court's consideration due to the fact that the youth was only supervised by Orange County Probation for approximately two months prior to his move to Costa Rica and it is unknown if he will return to the United States, although his father has stated that there are no current plans for him to return."
At the November 3, 2016 hearing, the court stated: "My notes from January of this year indicate that [Raymond] had proof of doing nine V.C.S. [voluntary community service] and therapy and he had proof of a flight to Costa Rica and so we relieved probation of supervision and that was on January the 29th because [Raymond] was living in Costa Rica. [¶] It was set for a motion to withdraw plea for today's date and a wardship status review and on today's date I'm not going to do this yet because he's—how long has he been—for two reasons, one is I want more time—I want to see him on probation for a little bit longer, and I'm not sure whether he's going to return from Costa Rica. I know the report says that the dad, I think, is saying that he's not going to be coming back but—"
Raymond's counsel asked: "Should I advise my client when they set a plea withdrawal date that if they follow all the conditions the court can still not grant that offer?" The court responded, "Yes" explaining "[b]ecause at the time of the plea part of the plea wasn't that he go to Costa Rica, was it?" The court further explained: "When he entered into the plea, the idea was that he was going to be supervised by the probation department for a certain amount of time and he hasn't been supervised by our probation officer." The court acknowledged that Raymond "has to go where his parents tell him to go" but the court was "not ready to terminate wardship" and ordered Raymond to continue as a ward with the same probation terms and conditions.
The court continued the hearing for wardship review and the hearing on the motion to withdraw the plea for 90 days (to February 3, 2017) and asked the probation department for additional information on where Raymond performed his community service. The court confirmed that probation remained relieved of the supervision of Raymond's probation, as previously ordered. Raymond appealed from the court's November 3 order.
The appellate record was augmented by the Attorney General to include the probation department's report filed February 3, 2017, stating that Raymond continued to live with his mother in Costa Rica without plans for him to return to the United States. The report reiterated that Raymond had complied with all court orders and completed "80 hours of volunteer community service at the Fullerton Arboretum and the First Southern Baptist Church of Buena Park." The report included the probation department's recommendation that wardship continue.
At the February 3, 2017 hearing scheduled to review wardship and the motion to withdraw Raymond's guilty plea, Raymond's counsel requested termination of wardship. The court ordered that Raymond continue as a ward of the juvenile court and set a hearing for wardship review and a motion to withdraw Raymond's plea for August 3, 2017.
DISCUSSION
Raymond argues the juvenile court erred by denying his motion to withdraw his plea one year after he entered the plea agreement because he had satisfied all of the terms and conditions of his probation. We agree.
In In re A.V. (2017) 11 Cal.App.5th 697, 705, the appellate court stated: "Section 786 [of the Welfare and Institutions Code] authorizes the juvenile court to employ a streamlined, court-initiated procedure for dismissing juvenile delinquency petitions and sealing juvenile records in the custody of the juvenile court, law enforcement agencies, the probation department, and the Department of Justice, when a ward 'satisfactorily completes' probation or supervision, as long as the offense is not one listed in section 707, subdivision (b). (§ 786, subds. (a), (d).) Upon the court's order dismissing the petition, the ward's arrest and other proceedings in the case 'shall be deemed not to have occurred,' allowing him or her to inform employers, educational institutions, or other persons that he or she has had no arrests or delinquency proceedings. (§ 786, subd. (b).) '[S]atisfactory completion' of probation or supervision has occurred if the person has no new findings of wardship, or a felony conviction, or a misdemeanor conviction involving moral turpitude, and 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).) Failure to pay restitution or restitution fines does not constitute 'unsatisfactory completion.' (§ 786, subd. (c)(2), italics added.)" The juvenile court has discretion to determine whether or not a ward has satisfactorily completed his probation. (Id. at pp. 701, 711.)
It is undisputed that as of the time of the November 3, 2016 wardship review and hearing on the motion to withdraw Raymond's guilty plea, Raymond had completed 80 hours of community service and a 10-week anger management program. A records check revealed no new violations or pending actions involving Raymond. His counsel sought and obtained the prior permission of the juvenile court for Raymond to leave the country and live with his mother in Costa Rica.
After approving Raymond's move to Costa Rica, the juvenile court effectively modified Raymond's probation to no longer be supervised by the probation department. The court did not advise Raymond or his counsel that he would be unable to have his guilty plea withdrawn after one year because of his time spent out of the country and unsupervised by probation. In fact, the November 3, 2016 wardship review and hearing on the motion to withdraw the plea remained on calendar after the court granted Raymond permission to move to Costa Rica and relieved the probation department of supervisory responsibilities. The bottom line is that Raymond did everything he promised to do. The denial of the motion leaves him without the applicable statutory remedy, ignores the modification of probation, and is unjust. Therefore, on this record, the court erred by refusing to allow Raymond to withdraw his guilty plea.
DISPOSITION
The order denying the motion to withdraw the guilty plea is reversed. We remand the matter to the juvenile court with directions to enter a new order granting the motion to withdraw Raymond's guilty plea and dismissing the action and to further order that all records pertaining to the juvenile delinquency petition be sealed as required by law.
FYBEL, J. WE CONCUR: O'LEARY, P. J. IKOLA, J.