In re J.M.

Filed 2/10/10 In re J.M. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Minor J.M. appeals from a juvenile court order continuing him on probation following his successful completion of the Juvenile Treatment Courts (hereafter JTC) substance abuse program, due to an outstanding victim restitution balance. The minor contends that, despite the outstanding balance, he was entitled to dismissal of his probation pursuant to the agreement he signed in order to participate in the JTC program. We agree. We will therefore reverse the courts order and remand the matter to the juvenile court with directions to enter an order of dismissal.

FACTUAL BACKGROUND[1]

On December 26, 2007, the minor was driving southbound on Fenton Street in San Jose, when he accidentally hit the gas pedal instead of the brake and failed to negotiate a right turn onto Lucien Avenue. He hit the side of the house located at 3396 Lucien and struck a person who was inside the residence at the time. The minor was stopped and cited two blocks away from the scene of the collision and was then released to his mother. The victim suffered injuries and was transported to the hospital.

On March 22, 2008, the minor was drinking alcohol in a roadway with three friends. Based on his appearance and demeanor (watery eyes, slurred speech, strong odor of alcohol), and the presence of two empty 40-ounce bottles of malt liquor in his vicinity, the minor was arrested for being drunk in public. When he was searched, police discovered a sharpened screwdriver in his pocket and cited him for possession of a concealed dirk or dagger.

PROCEDURAL HISTORY

On July 8, 2008, a juvenile wardship petition under Welfare and Institutions Code section 602 was filed in the Santa Clara County Juvenile Court charging the minor with a hit and run causing injury and with carrying a concealed dirk or dagger on his person. (Veh. Code 20001, subds. (a)/(b)(1); Pen. Code 12020, subd. (a)(4).) On September 2, 2008, the minor admitted both counts of the petition. That same day, the probation department notified the court by memorandum that the minor was eligible and suitable for the Juvenile Treatment Court substance abuse program, and the minors attorney informed the court at that time that the minor intends to participate in Drug Treatment Court. The Court indicated that was its intention as well, and set the matter for JTC report and disposition on September 18, 2008.

In the supplemental probation report prepared for the September 18 hearing, the probation officer noted that the minor had been accepted into the JTC substance abuse program. The probation officer recommended, among other things, that the minor be made a ward of the court, attend counseling, comply with the standard conditions of probation, and be ordered to pay restitution to R. Kaloti, the specific amount and terms of payment to be determined at a future hearing.

On September 18, 2008, the court adopted the probation officers recommendations, with certain amendments not relevant here. The court also set the restitution hearing for October 23, 2008. It was anticipated that the amount of restitution was going to be quite substantial for driving through a house, and an itemized estimate was already available.

The court signed the JTC contract dated today . . . which will make his phase one date today. The court welcomed the minor into the JTC program and set the maximum commitment period at three years, eight months. That same day, the minor, his mother, and his attorney also signed the contract, entitled State of California Santa Clara County Superior Court Juvenile Drug Treatment Court Disposition Agreement.

In relevant part, that agreement provides: (1) The minors Terms and Conditions of Probation are attached and made part of this Dispositional Agreement; (2) the minor understand[s] that the Court will be staying time in Juvenile Hall or the Juvenile rehabilitation Facility (the Ranch) as an incentive for me to graduate from JTC; (3) the minor also understand[s] that the court will be staying other terms of my probation such as fines and fees. If I graduate from JTC, my probation will be terminated and the stayed portions of my probation will not be imposed. I will not have to serve the stayed custody time. (Italics added.)

Three conditions of probation related to restitution. The first states: [I]f restitution and/or fines have been ordered, you must make payment as promptly as possible and as directed by your Probation Officer. The second states: That said minor be ordered to pay R. Kaloti restitution for losses sustained; the specific amount and terms of payment to be ordered at a Parte Restitution Hearing. The third states: That the Court set a Restitution Setting Hearing on 10/23/08.

The agreement also states that the minor understand[s] that participation in JTC is voluntary, but that the Terms and Conditions of Probation may change during the course of my JTC participation. I also understand that my treatment plan may change during the course of my JTC participation. I agree to comply with any changes.

On October 23, 2008, the probation officer reported in the Juvenile Treatment Program Court Review that the victim was requesting restitution in the amount of $9,723.38; that the probation officer had unsuccessfully attempted to contact the victim to verify the amount; and that a receipt was attached to the review. The matter was continued for further review on November 20, 2008.

In a Restitution Setting Report, the probation officer stated that Paragon Subrogation Services was demanding that the minor and his parent pay restitution in the amount of $32,532.55 to the insurance company, but the victims out of pocket expenses were $625.00. The probation officer recommended that the court order the minor and his parent to be jointly and severally liable for the full amount of $33,157.55, but the trial court apparently declined to do so. The matter was continued to December 18, 2008. On December 29, 2008, the court filed a Juvenile Care and Maintenance Reimbursement Guide showing that as of October 17, 2008, the minor and his mother had a monthly discretionary income of negative $479.34.

The matter was continued to January 29, 2009. In the Juvenile Treatment Program Court Review for that date, the probation officer noted: On November 29, 2008, the Court received a Restitution request with regards to victim Balbir K. The Court has yet to address restitution to this victim. It is requested the Court schedule a hearing to order restitution so [J.] can begin a payment schedule as it is anticipated he will complete JTC by April of 2009.

The matter was continued to March 12, 2009. In the Juvenile Treatment Program Court review for that date, the probation officer noted: At this time, this Officer is recommending the Court make restitution orders with regards to victim Balbir K. . . . [The minor] should be graduating at his next appearance.

The matter was continued to April 9, 2009, for further review. In the Juvenile Treatment Program Court Review for that date, the probation officer noted: [J.] is recommended for graduation from JTC. [] It is noted [J.] will remain on Probation. A contested Restitution Hearing is expected to be calendared with regards to victim Balbir K.

On April 9, 2009, the court ordered restitution to Balbir Kaloti in the amount of $9,723.38. The order was memorialized in an Order for Restitution and Abstract of Judgment (JV-790-Santa Clara County - Revised) dated April 9, 2009, pursuant to Welfare and Institutions Code section 730.6, subdivisions (h) and (i), and Penal Code sections 1202(f), 1203.1(l) and 1214. The order made the minors parents jointly and severally liable for restitution.

On April 9, 2009, the court also congratulated the minor on his graduation from JTC. The court then asked for counsels comments about terminating probation versus staying open forever, regarding restitution. Defense counsel pointed out that JTC was typically completed in approximately six months and that basically the contract said that your probation will be dismissed upon completion of the program . . . [] . . . [] The incentive is your probation will be dismissed if you successfully compete the program, and [J.] has done that. The restitution amount is obviously very high, but a JV790 will be filed today by his probation officer. The prosecutor requested that the probation remain open until such time that we can at least be assured that the minor is making payments to the victim in this matter.

The court elected to leave defendant on probation so there can be a demonstration by [J.] . . . [that] [h]es making some effort to reimburse the person whos suffered. The court then handed defendant his diploma and two Target cards. The court and two JTC team members commended him for his outstanding accomplishments. The court officer stated that the minor had graduated from the program and asked that all stayed orders be dismissed, which request was granted by the court.

The minors counsel asked the court to reconsider its decision to maintain the minor on probation. He signed a contract with the court that says, your probation gets dismissed when you graduate. . . . The victim does have a remedy. They have a civil judgment. The court denied the renewed request to terminate probation at that time, but continued the matter to July 6, 2009, for probation to be terminated on that day so long as the minor paid something and made a good effort at something.

The minor filed a timely notice of appeal.

DISCUSSION

In his opening brief, the minor argues that the juvenile court violated his plea bargain by refusing to dismiss his probation after he had fulfilled his end of the bargain by successfully completing and graduating from the JTC program, and that he is entitled to specific performance of the bargain, namely, dismissal of his probation. Alternatively, in a supplemental opening brief, the minor argues that the court breached the terms of the Drug Treatment Court Disposition Agreement by refusing to dismiss his probation upon his graduation from the program, due to the outstanding restitution order.

The Attorney General argues, and we agree, that the juvenile court did not violate a plea bargain. The record contains no evidence that the minor negotiated a plea bargain for a JTC disposition with the prosecutor. On the contrary, the record shows that the minor admitted both allegations of the section 602 petition in anticipation of being accepted into the JTC program, and being placed in the JTC program by the court, but without a promise, from either the prosecutor or the court, that he would be placed in the JTC program.

However, we find that the minors alternative argument has merit. We do not share the Attorney Generals view that the juvenile courts Drug Treatment Court Disposition Agreement is nothing but a unilateral acknowledgement by the minor of the obligatory requirements for JTC participation. The agreement was signed by the court, on the one hand, and the minor, his mother, and his attorney, on the other. It obligated the minor to accept, in addition to his general orders of probation, mandatory conditions of participation such as attendance at two 12-step meetings a week, weekly drug treatment, weekly urine testing, and twice weekly journalingwhich conditions might not have been otherwise ordered as part of the minors probationary terms. The quid pro quo for the minors successful completion of the programs obligations, including compliance with the standard probation conditions, was (1) the stay of custody time, fines and fees during the program, to be made permanent upon graduation from the program, and (2) the termination of probation upon graduation from the program.

The terms and conditions of the minors probation, attached and made part of the dispositional agreement, did not require him to make restitution payments while he was in the JTC program. It required the court to order the minor to make restitution to R. Kaloti, the specific amount to be determined at a later hearing, to be set by the court for October 23, 2008. And, it required the minor, if ordered to pay restitution or fines, to make payment as promptly as possible and as directed by your Probation Officer.

However, the court did not order any restitution to be made, or set the amount to be paid, while the minor was in the JTC program. As a result, the probation officer never directed the minor to make any payments. Instead, on the very day the court graduated the minor out of the program, it ordered restitution for the first time. The court refused to terminate probation, although it agreed to do so in three months if the minor demonstrated that he was making a good faith effort to pay something towards the restitution it had already ordered as a civil judgment. This was a clear breach of the most important term of the agreement.

The trial court had a constitutional and statutory duty to order that restitution be made to the victim by the minor. (Cal. Const., art. I, 28, subd. (a); Welf. & Inst. Code,  730.6; In re Brittany L. (2002) 99 Cal.App.4th 1381, 1386-1387.) To be sure, the court had broad discretion to determine the amount of restitution, and to impose restitution as a condition of probation. (People v. Honig (1996) 48 Cal.App.4th 289, 358; People v. Carbajal (1995) 10 Cal.4th 1114, 1121-1122.) Moreover, [a] juvenile court enjoys broad discretion to fashion conditions of probation for the purpose of rehabilitation . . . so long as it is tailored to specifically meet the needs of the juvenile. [Citations.] That discretion will not be disturbed in the absence of manifest abuse. (In re Tanya B. (1996) 43 Cal.App.4th 1, 7, overruled on another point by In re Justin S. (2001) 93 Cal.App.4th 811, 812.) Also, all juvenile court orders may be modified as the judge deems meet and proper. (Welf. & Inst. Code, 775.) Thus, the court has discretion to modify dispositional orders that have not succeeded in rehabilitating the affected minor. (Welf. & Inst. Code, 777-779; In reEddie M. (2003) 31 Cal.4th 480, 489.)

However, in this case, although the court could have modified the minors probation by ordering that restitution be made to the victim while the minor was on probation, the court did not exercise its discretion to order restitution, or determine its amount during the minors probation which, the court had agreed, would be coterminous with the duration of his JTC program, as long as the minor fulfilled his obligations and graduated from the program. It chose instead to order restitution by way of enforceable civil judgment upon the minors graduation from the JTC program. This was proper. It was not proper, however, for the court to breach its agreement with the minor, his parent and his attorney by maintaining him on probation, after he graduated from the JTC program, while he made a good faith effort to make payments on a civil judgment of restitution. In our view, the courts failure to keep its promise to terminate probation upon the minors graduation from the JTC program constituted an abuse of discretion.

CONCLUSION

The trial court abused its discretion by failing to keep its promise to terminate the minors probation upon his graduation from the JTC program.

DISPOSITION

The juvenile courts order continuing the minor on probation is reversed. The cause is remanded to the juvenile court with directions to terminate the minors probation in this matter forthwith.

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McAdams, J.

WE CONCUR:

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Elia, Acting P.J.

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Mihara, J.

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[1] The facts are drawn from the probation officers report filed September 18, 2008.