In re Michael P.















Filed 3/22/13 In re Michael P. CA3











NOT TO BE PUBLISHED







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opinion has not been certified for publication or ordered published for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.









IN THE COURT OF APPEAL OF THE STATE OF >CALIFORNIA>

THIRD APPELLATE DISTRICT

(San Joaquin>)

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>

In re MICHAEL P., a Person Coming Under the Juvenile Court Law.	C070807 (Super. Ct. No. 67781)
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL P., Defendant and Appellant.

This
appeal arises from two juvenile wardship petitions against appellant Michael P. (Welf. & Inst. Code, § 602.)href="#_ftn1" name="_ftnref1" title="">[1] In a combined href="http://www.fearnotlaw.com/">jurisdictional proceeding, the juvenile
court sustained a felony vandalism charge (Pen. Code, § 594, subd. (a))
and terminated deferred entry of judgment (hereafter DEJ) (Welf. & Inst.
Code, § 790 et seq.) as to the first petition; and sustained two felony
counts of firearm possession (Pen. Code, § 29610) and two misdemeanor
counts of ammunition possession (Pen.
Code, § 29650) as to the second petition.


On
appeal, Michael P. contends the juvenile court (1) imposed an overbroad
probation condition prohibiting his possession of marker pens, (2) denied him
equal protection by refusing to end DEJ until full restitution had been paid,
(3) failed to determine his ability to pay restitution, (4) failed to exercise
its discretion over whether the vandalism offense constituted a felony or a
misdemeanor, and (5) failed to hold a hearing regarding DEJ as to the second
petition. We find merit in Michael’s
last two points (the People concede the last point), and shall reverse and
remand on those two bases. In all other
respects, we shall affirm the adjudication.

FACTUAL AND PROCEDURAL BACKGROUND

Michael
P. admitted the charge in the first Welfare and Institutions Code section 602
petition, filed November 12, 2009, alleging felony vandalism for
graffiti-tagging an elementary school (Pen. Code, § 594, subd. (a)); and
the juvenile court ordered entry of judgment deferred subject to the probation
condition, among others, that Michael pay $1,185.77 in restitution to the
victim, the Stockton Unified School District (Welf. & Inst. Code,
§ 790 et seq.). Upon the successful
completion of DEJ probation conditions, and with certain affirmations, the
arrest upon which judgment is deferred is deemed never to have occurred, and
the juvenile records are sealed. (>Martha C. v. Superior Court (2003)
108 Cal.App.4th 556, 558.)

Pursuant
to the second section 602 petition, filed February 2, 2012, the juvenile court,
in a combined jurisdictional proceeding
on March 5, 2012, sustained two felony charges of firearm possession and two
misdemeanor charges of ammunition possession (these items were found in Michael’s
bedroom during a probation search); and, based on these adjudications, found
that Michael had failed DEJ regarding his first section 602 petition and
sustained that petition as well. Upon
the People’s motion, the juvenile court also dismissed, for insufficient
evidence, the four remaining charges in the second petition (carrying loaded
firearm; receiving stolen property; possessing a silencer; and street
terrorism) .

In a
combined dispositional hearing on March 26, 2012, the juvenile court adjudged
Michael P. a ward, suspended a 360-day camp commitment, imposed a 90-day
term in juvenile hall (and 30 days on electronic monitoring), and set a maximum
period of confinement of four years eight months.

We will
set forth facts relevant to each contention in our discussion of them.

DISCUSSION

I. The Probation
Condition Is Not Overbroad

The
juvenile court imposed the following probation condition at the combined
dispositional hearing: “The minor shall
not possess any graffiti materials, including, but not limited to, spray paint
cans, marker pens, and liquid shoe polish.”


Michael P.
contends the inclusion of marker pens is impermissibly overbroad, as he attends
school and will likely need to possess such items to pursue his state
constitutional right to an education.

We
certainly do not intend to get between anyone and their right to an
education. “A probation condition should
be given ‘the meaning that would appear to a reasonable, objective
reader.’ ” (People v. Olguin (2008) 45 Cal.4th 375, 382, quoting >People v. Bravo (1987) 43 Cal.3d
600, 606.)

A
reasonable interpretation of this probation condition is that Michael may
possess marker pens as necessary to do his school work, but may not do so to
undertake graffiti. Interpreted in this way,
the probation condition is not overbroad.

II. & III.
The Juvenile Court Properly Terminated DEJ, and Its Failure to Consider
Michael P.’s Ability to Pay Victim Restitution Was Harmless

Pursuant
to Michael P.’s first section 602 petition, which charged felony
vandalism, the juvenile court granted Michael DEJ (§ 790 et seq.), subject
to certain probation conditions, including that he pay the Stockton Unified
School District $1,185.77 in victim restitution. DEJ contemplates, indeed often requires, as part
of its goal of wiping the slate clean, that victim restitution be paid. (§ 794; G.C. v. Superior Court (2010) 183 Cal.App.4th 371, 377.) And, DEJ may last up to 36 months. (§ 791, subd. (a)(3).)

Through
periodic payments, Michael steadily whittled down this restitution amount, so
that, by the time of the combined jurisdictional proceeding in March 2012, he
owed only $18.77. At this combined
proceeding, as noted, the juvenile court, regarding the first petition,
terminated DEJ and sustained the vandalism charge.

Michael
argues that his equal protection rights
were violated by the juvenile court’s failure to end DEJ and dismiss the
vandalism charge at an earlier DEJ review hearing on January 12, 2012 (Michael’s
restitution balance at that point was $193.77).
Had the juvenile court done so, Michael argues, there would have been no
extant vandalism charge to sustain at the combined jurisdictional proceeding on
March 5, 2012; and it is only because Michael was too poor to pay off the
restitution amount quicker that he incurred the vandalism adjudication, thereby
violating his equal protection rights.

The
juvenile court, however, did not terminate DEJ on the basis of Michael’s
failure to pay full victim restitution, but on the basis of Michael’s
commission of four new offenses on January 31, 2012 (as charged in the second
section 602 petition), while DEJ was still ongoing as to his first
petition.

Again,
though, Michael’s point is that had he been able to pay off the victim
restitution order before January 31, 2012, he would have been deemed to have
successfully completed his DEJ conditions and there would have been no
vandalism charge to sustain thereafter; in short, his lack of finances led to
the vandalism charge being sustained, in violation of equal protection.

This is
where we pivot to Michael’s related third contention that the juvenile court
erroneously failed to determine Michael’s ability to pay prior to ordering him
to pay victim restitution as a condition of probation regarding his first
petition (on which DEJ was initially entered).
If Michael did actually incur a more severe punishment solely because of
financial incapacity, he could make an equal protection claim. (See, e.g., In re Antazo (1970) 3 Cal.3d 100, 115 [the defendant’s
incarceration violated equal protection because it was based solely on his
indigent inability to pay a fine imposed as a condition of probation].) That incurrence did not happen here, however.

The
record shows that any error on the juvenile court’s part in failing to assess
Michael’s ability to pay victim restitution (see § 742.16, subd. (a),
requiring this assessment here), was harmless.
Michael’s ability to pay the court-ordered $1,185.77 in victim
restitution was demonstrated in two ways:
(1) that amount was all but paid; and (2) Michael agreed, without
objection or concern, to pay victim restitution in the then estimated amount of
$3,000 when DEJ was imposed. (See also People
v. Campbell (1994) 21 Cal.App.4th 825, 831 [the defendant had the
opportunity to show an inability to pay restitution, but did not do so; a
timely objection would have allowed the trial court to modify or delete an
unreasonable condition].)

In the
end, then, it was not Michael’s financial inability to pay the victim
restitution that ended his DEJ; it was his commission of new offenses while on
DEJ that sealed his fate.

IV. The Trial
Court Failed to Indicate That It Had Discretion to Declare

the Penal Code Section 594 Vandalism Offense a Felony or a

Misdemeanor, Necessitating Remand

Section
702 requires the juvenile court to declare whether a so-called “wobbler”
offense is a felony or a misdemeanor.
This declaration must be “express.”
(In re Manzy W. (1997)
14 Cal.4th 1199, 1201 (Manzy W.);
see also In re Cesar V. (2011)
192 Cal.App.4th 989, 1000.)

The
reason for this requirement of explicitness is that such a declaration
determines the minor’s maximum period of confinement and much about his or her
future. (See Manzy W., supra,> 14 Cal.4th at
pp. 1208-1209.)

Our state
high court, in Manzy W., held that a
remand is required where the juvenile court does not make the requisite express
felony/misdemeanor declaration of a wobbler offense, and nothing in the record
indicates that the juvenile court considered whether the offense was a felony
or a misdemeanor. (Manzy W., supra,> 14 Cal.4th at p. 1209.) Given the stakes at issue, the presumption
under Evidence Code section 664—in a silent record case, the juvenile court is
presumed to have performed its official duty—does not apply. (Manzy
W., at p. 1209> [the Manzy court erroneously cited this presumption as Evidence Code
section 665].)

Here, the
record shows the juvenile court, at the combined jurisdictional hearing on
March 5, 2012, expressly declared the two firearm possession offenses, which
are wobbler offenses (Pen. Code, §§ 29610, 29700), to be felonies.

But the
juvenile court did not expressly declare the Penal Code section 594 vandalism
offense, which is a wobbler offense
(Pen. Code, § 594, subd. (b)(1)), to be a felony or a misdemeanor, and
there is nothing in the record to indicate that the juvenile court >considered whether this offense was a
felony or a misdemeanor. At the combined
dispositional hearing on March 26, 2012, the juvenile court stated: “The Court declares the offense to be a
felony.” The record does not indicate >which offense the juvenile court, with
this remark, declared to be a felony.
The first section 602 petition charging the vandalism offense, Michael’s
admission of that offense at the DEJ hearing on January 12, 2010, the
probation officer’s report, and the setting of the maximum period of physical
confinement, all label the vandalism offense as a felony. But, as noted in Manzy W., such labeling may not substitute for a juvenile court’s
express declaration as to whether the offense was a misdemeanor or a felony,
because they do not show the juvenile court knew it had discretion to declare
the offense a misdemeanor rather than a felony.
(Manzy W., supra, 14 Cal.4th
at p. 1208.)

Consequently,
we will reverse the juvenile court’s adjudication on this basis, and remand to
the juvenile court to exercise its discretion and declare whether Michael’s
Penal Code section 594 vandalism offense is a misdemeanor or a felony.

V. Remand Is
Also Necessary for the Juvenile Court to Determine Michael P.’s Suitability for
DEJ on His Second Section 602 Petition

If the
prosecuting attorney finds the minor eligible for DEJ, as the prosecutor did
here with respect to Michael P.’s second section 602 petition, it is “the
mandatory duty of the juvenile court to either grant DEJ summarily or examine
the record, conduct a hearing, and determine whether the minor is suitable for
DEJ, based upon whether the minor will derive benefit from ‘education,
treatment, and rehabilitation.’ ” (>In re D.L. (2012) 206 Cal.App.4th
1240, 1243-1244; §§ 790, 791, subd. (b).)


As the
People concede here: “The juvenile court
did not determine [Michael P.’s] suitability for DEJ [regarding the second
petition]. Thus, the matter should be
remanded to the juvenile court to do so now.”
We agree.

DISPOSITION

The
juvenile court’s adjudication is reversed and remanded to that court on the
following two issues: (1) to exercise
its discretion and declare whether Michael P.’s vandalism offense (Pen.
Code, § 594, subd. (a)) is a misdemeanor or a felony (and to recalculate,
if necessary, the maximum period of physical confinement); and (2) to determine
Michael P.’s suitability for DEJ regarding his second Welfare and
Institutions Code section 602 petition.
In all other respects, the juvenile court’s adjudication is
affirmed.







BUTZ , Acting P. J.







We concur:







MURRAY , J.







DUARTE , J.