Abdirahman S., In re, D028122

• Court: California Court of Appeals
• Citation: 68 Cal.Rptr.2d 402,58 Cal.App.4th 963
• Decision Date: 24 October 1997
• Docket Number: No. D028122,D028122
• Parties: , 97 Cal. Daily Op. Serv. 8278, 97 Daily Journal D.A.R. 13,355 In re ABDIRAHMAN S., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. ABDIRAHMAN S., Defendant and Appellant.

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68 Cal.Rptr.2d 402 58 Cal.App.4th 963, 97 Cal. Daily Op. Serv. 8278, 97 Daily Journal D.A.R. 13,355 In re ABDIRAHMAN S., a Person Coming Under the Juvenile Court Law.
The PEOPLE, Plaintiff and Respondent,
v.
ABDIRAHMAN S., Defendant and Appellant. No. D028122. Court of Appeal, Fourth District, Division 1, California. Oct. 24, 1997.
Rehearing Denied Nov. 17, 1997.
Review Denied Feb. 3, 1998.

Page 403

[58 Cal.App.4th 966] Mary C. Hibbs, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Janelle M. Boustany and Patti W.

Page 404

Ranger, Deputy Attorneys General, for Plaintiff and Respondent.

KREMER, Presiding Justice.

Abdirahman S. appeals from a dispositional order of the juvenile court placing him under the supervision of a probation officer for one year. Abdirahman contends the court (1) erred in failing to make an independent determination of his eligibility for informal supervision under WELFARE AND INSTITUTIONS CODE, SECTION 654.2¹, subdivision (a), and (2) abused its discretion in including warrantless searches and random alcohol and drug testing as conditions of probation. We affirm.

I

FACTUAL AND PROCEDURAL BACKGROUND

Abdirahman, Keak L. and Mohamed A. were middle school classmates. During an argument between the latter two, Mohamed warned Keak, "I am [58 Cal.App.4th 967] going to get you after school." Abdirahman and Mohamed later confronted Keak in the school yard. Abdirahman handed a chunk of asphalt to Mohamed, who struck Keak with it, injuring his eye and cheek. Consequently, a petition was filed in juvenile court alleging Abdirahman came within the provisions of section 602 in that he committed a felonious assault with a deadly weapon. (Pen.Code, § 245, subd. (a)(1).) At the adjudication hearing, the court reduced the count to a misdemeanor, determined the maximum term was one year, and sustained the petition.

At the disposition hearing, the court reviewed the probation officer's social study, which recommended that Abdirahman be placed on formal probation. While this was Abdirahman's first offense, the officer believed he would have difficulty complying with informal supervision because his native language was not English. Abdirahman's counsel agreed with the probation recommendation but objected to certain conditions. The court declared Abdirahman to be a ward of the court and placed him on formal probation in the custody of his mother.

II DISCUSSION A

Section 654.2

Abdirahman contends the court erred in failing to make an independent determination at the disposition hearing of his eligibility for informal supervision under section 654.2, subdivision (a). ² Instead, the court ostensibly relied solely upon the probation officer's formal probation recommendation. As we recently explained:

"... Section 654 authorizes an informal supervision program for a minor who in the opinion of a probation officer is, or will probably soon be, within the jurisdiction of the juvenile court. The purpose of the informal supervision program is to provide assistance and services to the minor and the minor's family to 'adjust the situation' and avoid further involvement in the formal juvenile criminal justice system. If the minor satisfactorily completes the informal supervision program designed by the probation officer, no section 602 petition is filed. If the minor does not satisfactorily complete the program, the probation officer or the [58 Cal.App.4th 968] prosecuting attorney may file the section 602 petition. [p] In 1989 section 654.2 was enacted to permit the court to order a section 654 informal supervision program for a minor after a section 602 petition has been filed...." (In re Adam R. (1997) 57 Cal.App.4th 348, 351-352, 67 Cal.Rptr.2d 76.)

Preliminarily, we note Abdirahman never raised the issue in the juvenile court and therefore waived appellate review. In

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any event, the trial court did not err. While a section 654.2 informal supervision program is available postpetition, it is to be implemented before adjudication of the charges alleged in the petition. (In re Adam R., supra, 57 Cal.App.4th at p. 352, 67 Cal.Rptr.2d 76; In re Adam D. (1997) 56 Cal.App.4th 100, 103, 65 Cal.Rptr.2d 15.) "In fact the 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.... [p] The court cannot make true findings on allegations in the petition and then order an informal supervision program under section 654.2; the findings and the orders are inherently inconsistent...." (In re Adam R., supra, 57 Cal.App.4th at pp. 352-353, 67 Cal.Rptr.2d 76.)

Because Abdirahman failed to request informal supervision under section 654.2 preadjudication, the court was not required to consider the issue at the disposition hearing at all. ³ Informal supervision was no longer a viable alternative, and thus the probation officer's consideration of the issue was unnecessary.

Abdirahman relies on In re Armondo A. (1992) 3 Cal.App.4th 1185, 1189-1190, 5 Cal.Rptr.2d 101, in which the juvenile court was found to have erred in refusing to independently determine whether informal supervision under section 654.2 was appropriate. There, however, the minor requested and received a hearing on the section 654.2...