People v. Southern (In re Southern)
| Decision Date | 01 October 2014 |
| Docket Number | D064181 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re DILLON S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. DILLON S., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Browder A. Willis, Judge. Reversed and remanded with directions.
Kleven McGann Law and Sarah Kleven McGann, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Alastair J. Agcaoili, Deputy Attorneys General, for Plaintiff and Respondent.
Dillon S., a minor, appeals from a judgment finding him a person described in Welfare and Institutions Code1 section 602, issuing a civil judgment for $567.26 in restitution, and terminating Dillon's wardship. Before entering judgment, the juvenile court denied Dillon's request to dismiss the People's section 602 petition (the 602 petition), ruling Dillon had not successfully completed his program of informal supervision under section 654 because he had not fulfilled the condition that he pay $567.26 in victim restitution. Proceedings on the 602 petition resumed, and Dillon admitted to one misdemeanor count of defacing property under Penal Code section 594.
Dillon asks this court to extend the reasoning of Charles S. v. Superior Court (1982) 32 Cal.3d 741 (Charles S.) to his dismissal request under section 654.2 and conclude his inability to pay restitution should not be grounds to deprive him of the benefits of informal probation. He further argues that under G.C. v. Superior Court (2010) 183 Cal.App.4th 371, the juvenile court should have determined and made a finding of his ability to pay the restitution order under section 742.16. Finally, Dillon contends the juvenile court's refusal to dismiss his petition violated his right to equal protection of the law under the United States and California Constitutions.
Though we conclude section 742.16 does not apply in the informal supervision context, we nevertheless reverse the judgment and remand the matter for the juvenile court to reconsider Dillon's motion. We agree that when Dillon raised an issue as to his financial ability to pay the restitution condition and counsel made an offer of proof on theissue, Charles S. required the juvenile court to take evidence as to Dillon's present financial ability and efforts to meet the condition—if any—and the court then had discretion to rule that Dillon had successfully completed his program of informal supervision notwithstanding his failure to pay any amount toward restitution. Because the record suggests the court believed full payment of restitution was mandatory for Dillon to successfully complete informal supervision, it did not make its ruling informed of the full measure of its discretion. Further, because the court declined to take evidence on Dillon's financial ability and efforts, it had no basis to conclude he had not made a good faith effort to pay. Under the circumstances, we remand the matter for the juvenile court to reconsider Dillon's motion to dismiss, cognizant of the full extent of its discretion.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2012, the People filed a section 602 juvenile delinquency petition alleging that Dillon had committed three misdemeanor offenses of defacing or destroying property belonging to the San Diego Metropolitan Transit Service (MTS) (Pen. Code, § 594) and one misdemeanor offense of possessing an item with the intent to commit vandalism. (Pen. Code, § 594.2.)
Dillon petitioned to continue the proceedings for six months and be placed on informal supervision under sections 654 and 654.2. The People did not oppose the petition, but asked for specific conditions of informal probation. In August 2012, Superior Court Judge Browder Willis granted Dillon's petition and without objection (with the exception of a request for a later curfew, which the court denied) orderedvarious terms and conditions of informal supervision, including that Dillon pay MTS $567.26 in restitution, jointly and severally with his parents. During the hearing, Judge Willis asked Dillon: "Did you have the opportunity to go over the terms and conditions of this agreement?" Dillon responded, "Yes." Judge Willis ordered Dillon to return for a review hearing, telling him, Dillon responded, "Okay," and the hearing concluded.
In February 2013, Dillon appeared for an informal supervision review hearing, this time before Judge Carlos Armour. Judge Armour granted Dillon a fee waiver for a graffiti class, deleted a requirement that he complete a work project, and continued the matter so that Dillon could complete the graffiti class and make restitution payments, which Dillon had not done. At that hearing, Dillon's counsel advised the court that Dillon was "currently looking for a job so he can make payments toward the restitution that's owed as finances are very tight for the family right now." Counsel asked for a 30-daycontinuance so that Dillon could "finish that graffiti class and make some payments toward restitution."2
Dillon did not return for his next review hearing until June 20, 2013. During that hearing, over which Judge David Oberholtzer presided, Dillon asked the court to dismiss his petition under section 654.2. Though Dillon told the court, "I haven't paid anything [on restitution] yet," his counsel represented that Dillon was "more than willing to pay the restitution" and eventually would pay it, but had no money and was not yet able. Ultimately, after some discussion about whether the court could enter a "JV 790" [order for restitution and abstract of judgment (see In re Timothy N. (2013) 216 Cal.App.4th 725, 732, fn. 5)] and then dismiss the case, Judge Oberholtzer continued the matter to July 2, 2013, and ordered Dillon to appear. Dillon's counsel asked to appear for Dillon, advising the court that he and his family
A few days later, Dillon filed a motion to dismiss his petition under section 654.2. Stating he had met all of his conditions of informal probation with the exception of his obligation to pay restitution, Dillon argued he had nonetheless successfully completed his program of supervision under section 654, and under those circumstances the juvenile court had no discretion but to grant his request for dismissal. He argued the court could not deny dismissal as a benefit of informal probation based on his poverty. He also argued that an order denying his dismissal request based on financial status and his inability to pay would violate his Fourteenth Amendment right to equal protection. The People responded by asking the court to deny his request, revoke the grant of informal supervision and resume criminal proceedings on the 602 petition. In part, they argued Dillon waived the issue by failing to raise his inability to pay when the juvenile court imposed the restitution condition.
On July 2, 2013, Judge Willis held the review hearing, during which he considered Dillon's motion to dismiss. At the outset, Judge Willis stated he was inclined to deny the motion, explaining Dillon had entered into a contract to avoid the consequence of having his petition considered; that informal supervision Dillon's counsel advised the court that every dollar earned by Dillon and his parents went toward the homeless shelter where they lived, and he argued it would be unjust and unequaltreatment to deny dismissal based on his inability to pay restitution.3 The court stated he understood Dillon's and his family's poor financial situation and was not trying to worsen it: Judge Willis continued: ...
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