Charles S. v. Superior Court

• Decision Date: 22 November 1982
• Citation: 187 Cal.Rptr. 144,653 P.2d 648,32 Cal.3d 741
• Court: California Supreme Court
• Parties: , 653 P.2d 648 CHARLES S., a Minor, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; The PEOPLE, Real Party in Interest. L.A. 31524.

Page 144

187 Cal.Rptr. 144

32 Cal.3d 741, 653 P.2d 648

CHARLES S., a Minor, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent The PEOPLE, Real Party in Interest.

L.A. 31524.

Supreme Court of California In Bank.

Nov. 22, 1982.

Wilbur E. Littlefield, Public Defender, Kenneth I. Clayman, John Michael Lee and Jack T. Weedin, Deputy Public Defenders, for petitioner.

No appearance for respondent.

John K. Van De Kamp, Dist. Atty., Donald J. Kaplan and Suzanne Person, Deputy Dist. Attys., for real party in interest.

BROUSSARD, Justice.

Charles S., a minor, petitions for a writ of mandate or prohibition to compel respondent court to order that he be placed on informal probation under Welfare and Institutions Code section 654. ¹ The question presented is whether the court and a probation officer abused their discretion in refusing informal probation on the ground that Charles S. and his family were unable to make restitution to the victim of a theft.

On September 15, 1980, a petition was filed under section 602 charging that Charles had violated Penal Code sections 459 (burglary) and 496 (receiving stolen property). The charges arose out of the theft of go-carts valued at $2,500 and involved Charles, his brother and a third juvenile. ²

At his arraignment, Charles was referred to the probation officer for an investigation of his suitability for voluntary informal probation pursuant to section 654. The officer reported that Charles was an "eminently suitable" candidate for probation and that he had met all of the probation department's standards for the program, except that he was unable to pay his fair share of restitution to the victim. Due to this fact, the department recommended that formal proceedings against Charles begin.

According to the officer's testimony, department policy requires that restitution be paid as a condition of probation. Although the amount due is based on the dollar amount of loss to the victim, full restitution is not required in every case. The exact payment is set by the probation officer based on the ability to pay and the department's responsibility to the community.

During the investigation, the probation officer assigned to the case had attempted to work out a schedule of restitution for Charles and his parents. Although he believed that Charles would be able to pay his full share of restitution, $833, over the period of a year, he felt the section 654 informal probation program was inappropriate because it was limited to a six-month period. A tentative program was then set up whereby Charles would agree to pay $550 of the $833 restitution. A "good-faith" payment of $250 would be made immediately, followed by payments of $50 per month for the next six months.

Charles and his parents, however, were unable to raise funds to make the $250 good-faith payment, despite efforts to borrow the money from family and friends. The trial court sent the matter back to the probation department for further investigation.

At the next court hearing, the probation officer conceded that the family was in "dire financial straights" and had made efforts to raise the money. Charles' brother was on formal probation, and the family was making restitution on the brother's behalf. Charles was not attending school, although he planned to take the high school proficiency test within the next few months. He was working full-time at a custom furniture manufacturing business operated by his parents. Charles' mother testified that he was paid a salary of only $10 per week for his work, but that he was receiving training so that he could some day take over the business. The business was not doing well and, according to the mother, it was "not paying its own way." The probation officer concluded that except for their inability to make restitution, petitioner and his family qualified for probation under section 654.

The juvenile court expressed doubt as to whether it had authority to order the probation department to reconsider its recommendation. The court concluded that even if it had such authority, it would not send the matter back, as the department had not abused its discretion. The court expressed concern that Charles was not in school and that he was working on a volunteer basis for a marginally successful business, instead of attempting to develop useful skills for the future. It then set a date for hearing on the merits of the case. ³

1. JUVENILE COURT AUTHORITY TO DIRECT PROBATION OFFICER TO PLACE MINOR ON INFORMAL PROBATION.

Upon receipt of allegations that a minor has committed a public offense, the probation officer is required by section 653 to make an immediate investigation to determine whether juvenile court proceedings should be commenced. After investigation he has three courses of disposition: First, if he determines that proceedings should be commenced, he refers the matter to the prosecuting attorney. (§ 653.) Second, he may take no action. (Id.) Third, he may institute a program of informal probation under section 654. ⁴ (Marvin F. v. Superior Court (1977) 75 Cal.App.3d 281, 288-289, 142 Cal.Rptr. 78.)

Section 654 reads, in part: "In any case in which a probation officer, after investigation of an application for petition or other investigation he is authorized to make concludes that a minor is within the jurisdiction of the juvenile court or will probably soon be within such jurisdiction, he may, in lieu of filing a petition to declare a minor a dependent child of the court or a minor or a ward of the court under Section 601 or requesting that a petition be filed by the prosecuting attorney to declare a minor a ward of the court under Section 602 or subsequent to dismissal of a petition already filed, and with consent of the minor and the minor's parent or guardian, delineate specific programs of supervision for the minor, for not to exceed six months, and attempt thereby to adjust the situation which brings the minor within the jurisdiction of the court or creates the probability that he will soon be within such jurisdiction. Nothing in this section shall be construed to prevent the probation officer from filing a petition or requesting the prosecuting attorney to file a petition at any time within said six-month period. If the probation officer determines that the minor has not involved himself in the specific programs within 60 days, the probation officer shall immediately file a petition or request that a petition be filed by the prosecuting attorney. However, when in the judgment of the probation officer the interest of the minor and the community can be protected, the probation officer shall make a diligent effort to proceed under this section...."

Although the section is silent as to which factors the probation officer should consider in determining eligibility for informal probation, California Rules of Court rule 1307 specifies several factors including the seriousness of the offense, the ability of the minor and his parents to resolve the matter, the attitude of the minor and his parents, and other circumstances involving the welfare and safety of the minor and the protection of the public. ⁵

Section 654 initially places the determination whether to institute informal probation or to file court proceedings in the discretion of the probation officer. The determination whether to proceed by informal probation or to seek court proceedings may not be delegated to the prosecuting attorney. (Raymond B. v. Superior Court (1980) 102 Cal.App.3d 372, 375, 162 Cal.Rptr. 506; Marvin F. v. Superior Court, supra, 75 Cal.App.3d 281, 288, 142 Cal.Rptr. 78 et seq.)

While it is apparent from the statutory scheme that only the probation officer initially may place the juvenile on informal probation, it is equally apparent from the provisions of section 654 that once a petition under section 602 is filed, institution of informal probation is no longer solely the province of the probation officer, but that informal probation will be instituted on the basis of court action. The section provides for informal probation in lieu of seeking a section 602 petition "or subsequent to dismissal of a petition already filed." The quoted provision makes clear that after court proceedings are commenced, informal probation is to be based on a court determination. Only the court may dismiss the section 602 petition, and neither the district attorney, the minor's counsel nor the probation officer can interfere with the exercise of judicial power. (Raymond B. v. Superior Court, supra, 102 Cal.App.3d 372, 378-379, 162 Cal.Rptr. 506.)

Under the statutory scheme, it is further apparent that after the section 602 petition is filed, the probation officer may not be permitted to reject the judge's determination to dismiss and initiate informal probation. Section 654 provides that the probation officer shall make a "diligent effort" to proceed under the section when in his judgment the interest of the minor and the community can be protected. When the judge determines to dismiss the section 602 petition in favor of informal probation, he obviously has determined that the dismissal is in the interest of the minor and the community can be protected, and the probation officer, an officer of the court, may not impeach the court's judgment.

The Juvenile Court Judicial Manual, prepared in 1979 by Judge Richard P. Bryne, recognizes the powers of the court to correct probation department abuses. The trial court's concern that it could not order informal probation is unfounded. If, in its judgment, formal proceedings are not appropriate, it may dismiss the 602 proceedings based on its findings of appropriate informal probation. The probation officer must, of course, comply with those findings.

2. RESTITUTION AS PART OF INFORMAL PROBATION.

The principle that an offender can be required, in proper cases, to make restitution to his victim is an accepted one. Not only is restitution...