Filed 6/10/13 In re Devon R. CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


In re DEVON R., a Person Coming Under
the Juvenile Court Law.

THE PEOPLE,
                                                                       G045776
     Plaintiff and Respondent,
                                                                       (Super. Ct. No. DL037806)
         v.
                                                                       OPINION
DEVON R.,

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, David A.
Hoffer and Jacki C. Brown, Judges. Affirmed.
                   Suzanne G. Wrubel, 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, Steve Oetting and
Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and Respondent.
                                  *          *           *


              Minor Devon M. appeals a true finding in juvenile court of misdemeanor
battery (Pen. Code, § 242), which resulted in the court placing Devon on probation for six
months. Devon claims he successfully completed a six-month period of informal
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supervision under Welfare and Institutions Code sections 654 and 654.2. According to
Devon, this fact necessitated the dismissal of the pending section 602 petition prior to his
trial. We disagree with Devon’s characterization of the record and affirm the judgment.
Devon did not successfully complete his six-month supervision period and the court
therefore was not obligated to dismiss the petition.


                                          FACTS


              The underlying incident occurred aboard a bus on February 11, 2010. Jane
Doe, 15 at the time of the incident, was returning home from school. She was sitting next
to a classmate named Ricardo. Devon, 14 at the time of the incident, was also on board
the bus. Devon had previously harassed Jane Doe at school (i.e., calling her derogatory
names, using sexually explicit language). Devon grabbed Ricardo’s hand. According to
Jane Doe, Devon placed Ricardo’s hand on Jane Doe’s breast and at the same time
squeezed Jane Doe’s breast. According to Devon, he pulled on Ricardo’s hand such that
when Ricardo struggled to get free his hand made contact with Jane Doe’s breast. Devon
denied touching or squeezing Jane Doe’s breast.




1
              All statutory references are to the Welfare and Institutions Code, unless
specified otherwise.

                                             2
              A petition to declare Devon a ward of the court was filed in August 2010.
The petition included only one count — sexual battery pursuant to Penal Code section
243.4, subdivision (e)(1).
              On August 17, 2010, the court (acting pursuant to the authority of § 654.2
and with the consent of Devon) placed Devon on a program of informal probation
pursuant to section 654 for a period not to exceed six months. The court described its
order to Devon as “a diversion program” that “will give you a chance to earn dismissal in
six months.” The conditions included completion of 40 hours of community service,
completion of a legal awareness program, participation in sex awareness and boundaries
counseling, no contact with Jane Doe (other than the provision of a letter of apology to
the probation department), consistent school attendance, compliance with a curfew, not
riding the bus, and not violating any laws. The court indicated that if Devon fulfilled the
terms of probation, the petition would be dismissed. No restitution was requested at this
hearing. The court set a follow up hearing for February 17, 2011.
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              Precisely six months later, the court held the scheduled hearing. The
probation department’s report recommended dismissal of the petition and termination of
informal probation based on Devon’s compliance with “most of his court orders.” Devon
was not in compliance with at least two of his conditions, however. Devon was arrested
in January 2011 for possession of marijuana; at the time of the arrest, he was breaking
curfew. The probation report indicated “restitution has been set at zero, as there was no
response from the victim.”
              The court did not dismiss the petition on February 17, 2011. Instead, the
court continued the program of supervision until March 22, 2011. The court added a new


2
               The record includes a second petition based on pre-August 2010 conduct
(possession of marijuana and tobacco). This petition was dismissed on February 17,
2011. We ignore proceedings related to this second petition because they are irrelevant
to the issue presented.

                                             3
condition, namely that Devon pay restitution to Jane Doe as determined by the probation
department. Referencing Devon’s January 2011 marijuana arrest, the court indicated
Devon needed to “take[] care of” his “ticket” at a scheduled March 3 court date, although
the court’s comments were ambiguous as to whether this was a necessary precondition to
dismissing the petition. During an unreported conference in chambers, Devon’s attorney
objected to the continuance of the supervision period and the inclusion of an additional
term of paying restitution. Devon’s attorney also asked the court to dismiss the petition.
              On March 14, 2011, a restitution order in the amount of $1,377.88 was
entered by the court. Devon was ordered to pay this amount to Jane Doe. The order
stated this amount consisted of medical expenses and mileage reimbursements. The
order indicated that a hearing contesting the amount of restitution could be requested by
Devon prior to May 17, 2011. The probation department’s report for the March 22
hearing recommended an additional continuance of the probation period to allow Devon
time to comply with the restitution order.
              On March 22, 2011, the court continued the hearing to April 19, 2011, and
continued the program of informal probation. Counsel for Devon disputed the amount of
restitution sought by Jane Doe and requested additional information as to the basis for the
amount.
              At the April 19 hearing, Devon again argued it was improper to impose a
restitution requirement at all after Devon had already completed his six months of
informal supervision. Devon also claimed Jane Doe had not suffered any injury and she
therefore was not entitled to any restitution. The court rejected Devon’s motion to
dismiss the petition. The court stated its belief that “terms and conditions can be added”
to an informal supervision program. The court offered Devon the opportunity to
withdraw his consent to participating in the program of informal supervision. Devon
withdrew his consent and the matter was set for trial. The court vacated the restitution
order based on Devon’s withdrawal of consent to the informal supervision process.

                                             4
              After a trial, the court found beyond a reasonable doubt that “a simple
misdemeanor battery occurred” pursuant to Penal Code section 242. The court sustained
the petition for the lesser included offense but not the charged offense. The court ordered
that Devon be declared a “non ward” of the court and placed him on probation for six
months. One term of probation was the payment of restitution to Jane Doe. Devon and
Jane Doe ultimately stipulated to a restitution payment of $1,000.


                                       DISCUSSION


              “If a petition has been filed by the prosecuting attorney to declare a minor a
ward of the court under Section 602, the court may, without adjudging the minor a ward
of the court and with the consent of the minor and the minor’s parents or guardian,
continue any hearing on a petition for six months and order the minor to participate in a
program of supervision as set forth in Section 654. If the probation officer recommends
additional time to enable the minor to complete the program, the court at its discretion
may order an extension. Fifteen days prior to the final conclusion of the program of
supervision undertaken pursuant to this section, the probation officer shall submit to the
court a followup report of the minor’s participation in the program. The minor and the
minor’s parents or guardian shall be ordered to appear at the conclusion of the six-month
period and at the conclusion of each additional three-month period. If the minor
successfully completes the program of supervision, the court shall order the petition be
dismissed. If the minor has not successfully completed the program of supervision,
proceedings on the petition shall proceed no later than 12 months from the date the
petition was filed.” (§ 654.2, subd. (a), italics added.)
              Devon does not argue it was improper per se under sections 654 and 654.2
to impose a restitution requirement on a minor participating in a program of supervision.
(See § 654.6; Charles S. v. Superior Court (1982) 32 Cal.3d 741, 747-749 [restitution as

                                              5
part of § 654 probation]; In re C.W. (2007) 153 Cal.App.4th 468, 471-472 [restitution as
part of § 654.2 informal supervision].) And it is worth emphasizing that any program of
supervision requires “the consent of the minor and the minor’s parents or guardian . . . .”
(§ 654.2, subd. (a).) Devon ultimately withdrew his consent to the informal supervision
period based on the imposition of a restitution requirement.
              Instead, relying on the language of section 654.2, subdivision (a), italicized
above, Devon claims the court was required to dismiss the section 602 petition on
February 17, 2011, rather than extending the period of section 654.2 supervision and
simultaneously adding the restitution condition. (See In re Adam D. (1997) 56
Cal.App.4th 100, 103 [“if the program of informal supervision under section 654.2 is
satisfactorily completed, the petition must be dismissed”].) Had the court dismissed the
petition in February 2011, Devon would not have suffered his battery conviction, the
ensuing six months of probation, and the restitution order. (See In re Adam R. (1997) 57
Cal.App.4th 348, 352 [“the purpose of the . . . informal supervision program is to avoid a
true finding on criminal culpability which would result in a criminal record for the
minor”].)
              The primary problem with Devon’s argument is that (despite the probation
department’s recommendation to dismiss the petition) Devon had not successfully
completed his period of supervision by February 17, 2011. One month before the
February 17 hearing, Devon broke his curfew and was arrested for possession of
marijuana. “If the minor has not fulfilled the conditions by the end of the six-month
period the court may extend the period of informal probation for the minor to do so.”
(In re C.W., supra, 153 Cal.App.4th at p. 472.) Although the court was concerned with
setting restitution as an additional condition of Devon’s section 654.2 supervision at the
February 17 hearing, the court also cited Devon’s pending marijuana court date as an
issue to be taken care of (along with the new restitution condition). Devon’s failure to
successfully complete his program of supervision justified, on its own, the court’s refusal

                                             6
to dismiss the petition on February 17, 2011. For the same reason, Devon’s contention
that he detrimentally relied on the court’s promise to dismiss the petition rings hollow.
Devon did not live up to the conditions of his six-month supervision period. He was not
entitled to dismissal of the petition on February 17. Devon was provided with the
opportunity to complete his period of informal probation and obtain dismissal by paying
restitution to Jane Doe. He refused to do so.
              Given our determination that the court was not required to dismiss the
petition in February 2011, the next question is whether the court had discretion to add a
condition to the supervision period (i.e., the order to pay restitution) at the February
hearing. There is no language in sections 654 or 654.2 explicitly authorizing
modification of the terms of supervision. (Cf. Pen. Code, § 1203.1, subd. (j) [“should the
probationer violate any of the terms or conditions imposed by the court in the matter, it
shall have authority to modify and change any and all the terms and conditions”].) But,
more generally speaking, a juvenile court has broad discretion in fashioning its probation
orders, including orders changing, modifying, or setting aside previous orders. (See In re
Luis F. (2009) 177 Cal.App.4th 176, 188-190; § 775 [“Any order made by the court in
the case of any person subject to its jurisdiction may at any time be changed, modified, or
set aside, as the judge deems meet and proper, subject to such procedural requirements as
are imposed”].)
              Under the circumstances of this case, we conclude the court acted within its
discretion when it added a restitution condition to the extended section 654.2 supervision
period. The court inquired at the beginning of the case whether restitution was requested.
Because Jane Doe did not come forward with a restitution request until after the original
conditions of supervision were entered, the court did not include an order to pay
restitution among the original probation conditions. But at the earliest available
opportunity, the court added a restitution condition and order specifying the amount of
restitution owed to Jane Doe. As explained above, Devon was not entitled to dismissal of

                                              7
the petition prior to the imposition of the restitution condition. The court properly
revoked the restitution order when Devon refused to consent to its imposition as part of
the extended period of supervision. Devon then received the process due to him (i.e., a
trial on the merits of the petition). Certainly, it would have been preferable had
                                                                                           3
restitution issues been settled earlier in the process, but we find no reversible error.


                                       DISPOSITION


              The judgment is affirmed.




                                                   IKOLA, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



MOORE, J.


3
               We reject the Attorney General’s argument that the amount of restitution
sought by Jane Doe in March 2011 retroactively resulted in the presumptive ineligibility
of Devon for a program of supervision. “No minor shall be eligible for the program of
supervision set forth in Section 654 or 654.2 in the following cases, except in an unusual
case where the interests of justice would best be served and the court specified on the
record the reasons for its decision: [¶] . . . [¶] (g) A petition alleges that the minor has
violated an offense in which the restitution owed to the victim exceeds one thousand
dollars ($1,000).” (§ 654.3, italics added.) The petition in this case did not allege that
restitution exceeded $1,000. It would be nonsensical to allow a request for more than
$1,000 in restitution that occurred more than six months after the filing of the petition to
affect the presumptive eligibility of Devon for supervision under section 654.2, a
determination that was made shortly after the filing of the petition in August 2010.

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