People v. Laura P. (In re Laura P.), A134867

Decision Date06 March 2013
Docket NumberA134867
PartiesIn re LAURA P., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. LAURA P., Defendant and Appellant.
CourtCalifornia Court of Appeals Court of Appeals

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Mendocino County

Super. Ct. No. SCUK-JDSQ-11-15991)

Laura P. (minor) appeals an order of the juvenile court directing her to pay restitution to the victim of burglaries she admitted committing and which she had previously agreed to pay. We reluctantly conclude that under the unusual circumstances of this case, the failure of the juvenile authorities to timely pursue enforcement of her commitment to pay restitution, made 15 months before in the course of informal probation proceedings, deprived the court of authority to enter the order under review.

FACTS AND PROCEDURAL HISTORY

Minor, then a 12-year-old girl, along with two other juveniles, burglarized a residence in December 2009 and January 2010. At a citation hearing before a juvenile probation officer of the Mendocino County Probation Department on July 28, 2010, minor admitted to committing residential burglary in violation of Penal Code section 459 and agreed, in lieu of the filing of a wardship petition, to a program of supervision asauthorized by Welfare and Institutions Code1 section 654. The probation department imposed several conditions on minor, including paying restitution to the victim by October 2010.2

Minor (as well as the two other juveniles) apparently failed to make any restitution payments to the victim, but no steps were taken to enforce the restitution commitment for some 15 months, until the minor was again brought before the juvenile authorities for another offense. On September 16, 2011, minor was cited by the probation department for stealing several items from a department store and released to her mother.3

On October 7, 2011, the district attorney filed a wardship petition pursuant to section 602, alleging that minor committed a burglary "between the 25th day of December 2009, and the 15th day of March 2010." The petition also alleges that on September 16, 2011, minor committed petty theft (Pen. Code, §§ 488, 484, subd. (a),490.5, subd. (a)). Two weeks later, minor's counsel entered a denial on behalf of the minor and the matter was set for a hearing.

On January 13, 2012, the Mendocino County Health & Human Services Agency filed a section 300 dependency petition, alleging that minor's mother was unable to provide her children with a safe home environment, and the agency took minor into protective custody. On February 8, 2012, a dual-status hearing was held at which the social services agency and the probation department agreed that dependency, rather than delinquency, services were more appropriate for minor. The deputy district attorney then stated, "Well, the only issue I have is the restitution. I've prepared a restitution order that mirrors the order that the minor made — the minor and her mother agreed to [at the] citation hearing on 7/28/2010 because these crimes all happened in 2009 and 2010. [¶] And since there's never been a wardship found, this — the order for restitution is . . . difficult to figure out which boxes to check. I checked the box that said she was found to be a person described in . . . section 602, which entitles the victim to restitution. I think that is still true from a citation hearing. But I scratched out the box that [says] wardship is terminated because it was never officially granted. [¶] So if the court will sign the order for restitution so that collections can have the document that will protect the rights of the victim of the first-degree burglary, then I have no problem with her becoming a 300 minor."

The court asked mother's counsel whether she agreed with the new restitution order, and the attorney stated that the order "seems appropriate." Minor's counsel, however, responded, "I'm not sure . . . that's the proper vehicle if [minor's] not being declared a ward under 600. I don't know what jurisdiction the court can then order this restitution as a formal order with that case number." The following colloquy then occurred:

"The court: . . . I think I—if I have an agreement as to the restitution, I think I'd feel comfortable signing the order. [¶] The jurisdiction—when— the court never found . . . her a 602 ward, but it was handled through a citation hearing where she and her mother agreed to make the restitution. I have documents to support that.
"[Deputy district attorney]: . . . [A]pparently under—is it 730 of the Welfare and Institutions Code, that there's an intent that the restitution order outlive, you know, the minor becoming . . . an adult and that those orders are intended to remain until satisfied. [¶] . . . [¶] And this is the only vehicle I can think of to accomplish that.
"The court: Right. So [mother's counsel], your client is agreeing to the court signing the order of restitution?
"[Mother's counsel]: Your Honor, we would be in agreement to that.
"The court: [Minor's counsel]?
"[Minor's counsel]: I'm objecting for the record and stating my concerns."

The court then stated, "All right. Over the minor's [counsel's] objections on jurisdictional grounds, I am going to find that its appropriate for the court to sign the order for restitution since it was agreed upon in the juvenile proceeding. . . . [¶] Before I dismiss the 602 case, I think it's in the interest of justice that all of the parties conform to the agreement that they made. Then the recommendation is to dismiss subject to that order." The court found dependency proceedings more suitable and dismissed the section 602 petition. At the same time, the court entered an order directing minor to pay restitution to the victim of the 2009 - 2010 burglaries.4 Minor filed a timely notice of appeal from this order.

DISCUSSION

Section 654, pursuant to which the probation department handled minor's 2009-2010 burglary offenses, provides in pertinent part that "[i]n any case in which a probation officer . . . concludes that a minor is within the jurisdiction of the juvenile court or will probably soon be within that jurisdiction, the probation officer may, in lieu of . . . requesting that a petition be filed by the prosecuting attorney to declare a minor a ward of the court under . . . Section 602 and with consent of the minor and the minor's parent orguardian, delineate specific programs of supervision for the minor, for not to exceed six months. . . . 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 the six-month period or a 90-day period thereafter." Section 654 imposes a nine-month (formerly six-month) 5 limitation within which the district attorney may file a petition under section 602 based on an offense for which informal probation was granted pursuant to section 654. (In re Michael D. (1989) 211 Cal.App.3d 1280, 1283.) The Legislature sought to keep the informal probation period " 'strictly limited [in] duration' " because informal probation necessarily demands that minors "relinquish their rights to a formal adjudication under . . . Section 602." (Michael D, pp. 1283-1284.) "By including mention of this specific time period as appropriate for the abandonment of the informal probation and the filing of a formal petition, the Legislature has by implication excluded as inappropriate for filing the period beyond that limitation." (People ex rel. Kottmeier v. Superior Court (1987) 194 Cal.App.3d 1536, 1542.)

Based on the time limitation imposed by section 654, the section 602 petition filed by the district attorney in October 2011 was time barred insofar as it was based on the 2009-2010 burglaries. The petition was filed 15 months after the initiation of informal probation on July 28, 2010. In Kottmeier, the district attorney filed a section 602 petition 10 days beyond the six-month period and the court dismissed the petition with prejudice. (People ex rel. Kottmeier v. Superior Court, supra, 194 Cal.App.3d at p. 1542.) Here, the deadline was missed by seven months.

On appeal, the Attorney General does not dispute the untimeliness of the section 602 petition, but contends that minor forfeited her right to challenge the restitution order because she agreed to pay the restitution as part of the informal probationary plan.6However, although payment of restitution was part of the program of supervision to which the minor consented, if the minor did not perform her commitments under the supervisory program, section 654 gave the probation department no more than three months after the expiration of a maximum six month probationary period to file a petition under section 602. The restitution "order" included as part of the supervisory program was made by the probation department, not by the juvenile court. It was not an order reducible to an enforceable money judgment, as is a restitution order entered by the court pursuant to section 730.6 (§ 730.6, subds. (i), (r); Pen. Code, § 1214.), which the order on appeal purports to be. Although the minor may have agreed to pay the restitution, she did not agree to the entry of an order under section 730.6 and she did not agree to waive the time limit within which the district attorney is authorized to file a section 602 petition.

Since the section 602 petition was time barred, the juvenile court did not have the authority to impose a restitution order pursuant to section 730.6, upon which the Attorney General rests its argument that the challenged order was authorized. Moreover, the juvenile court...

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