CHARLES OLIVER v. PEOPLE (1981)

On September 15, 1980, a Welfare and Institutions Code section 602¹ petition was filed alleging that petitioner had violated Penal Code section 459 (burglary) on July 31, 1980, and had violated Penal Code section 496 (receiving stolen property) on July 31 and August 12, 1980. At his arraignment, petitioner requested that the matter be referred back to the probation officer for an investigation of his suitability for voluntary informal probation pursuant to section 654.

In a report filed with respondent court on October 15, 1980, the probation officer stated that “the minor and his family are eminently suitable for probation supervision, voluntary or otherwise. However, in light of the seriousness of the present offense and the huge amount of restitution outstanding, approximately $2,500, it is certain that the probation officer will need more than six months and a court order in order to collect restitution and to make the victim whole.

“The minor was intended for 654 Welfare and Institutions Code (voluntary probation supervision), and, in fact, a preliminary contract was drafted on September 23, 1980. However, it has been determined that this minor is owing of about $833 and it was revealed that the minor's mother would be unable to pay this amount within a six-month period of time. The probation officer asked for some ‘good faith’ monies, in advance, in the amount of $250, but the minor's parents were unable to comply with this request.

“The probation officer will need 602 Welfare and Institutions Code jurisdiction and a court order for restitution in order to meet the needs of this case.” It was recommended that the matter be continued for trial setting.

On January 6, 1981, respondent sent the matter back to the probation department for further investigation. In a report filed January 20, 1981, the probation officer reported that there had been no change in circumstances since the earlier report and that petitioner remained an unacceptable candidate for section 654 probation supervision.

At a hearing in respondent court on January 20, 1981, the probation officer testified that except for their inability to make restitution, petitioner and his family qualified for section 654 probation. He explained that petitioner's sibling had also participated in the offense which led to the filing of the section 602 petition, that the sibling was on formal probation and that the family was making restitution payments on the sibling's behalf. The officer had wanted some assurance of “a reasonable collection” from petitioner during the six-month voluntary probation period, but could not get such assurance. After interviewing petitioner, the officer concluded that he was working steadily and that he could make substantial restitution over a period of a year. The probation officer wanted an initial restitution payment to institute informal probation. After that he would have set up a schedule of monthly payments-probably $50 a month-based on ability to pay. The family was in “dire financial straits” and despite good faith efforts to raise the money, was unable to make the $250 initial payment.

The probation officer further testified that the department did not have a policy that full restitution be made in section 654 situations. Restitution was determined based on the department's assessment of its responsibility to the community, on the minor's ability to pay and on the department's ability to collect the amount within the six months.

Petitioner's mother testified that petitioner was employed in the family's custom furniture business, that he worked 40 hours a week and earned $10 a week. Business was slow and was not “paying its own way.” Petitioner, who had turned 16 on December 1, 1980, was not attending school. He was scheduled to take the “GED” test in March 1981. By working in the business petitioner was learning a trade in preparation for someday taking over the business. Petitioner's mother also testified that she had tried unsuccessfully to borrow the $250 good faith money the probation department wanted.

Petitioner argued at the January 20th hearing that the probation officer had abused the discretion vested in him by section 654 by denying him informal supervision based on his inability to make restitution. He also argued that he disputed the amount of restitution computed by the probation officer and that allowing the probation officer to fix the amount denied him his day in court as to the extent of his liability.

Respondent court questioned whether it had the authority to return the matter to the probation department, but ruled that even if it did have such authority it would not send the matter back because it concluded that the probation officer had not abused his discretion. Respondent expressed concern over the fact that petitioner was not in school and about his basically nonremunerative work situation.

Petitioner seeks a writ of mandate directing respondent court to place petitioner on informal probation. We issued an alternative writ at the direction of the Supreme Court.

Petitioner first asserts that respondent court has the power to order the probation department to place petitioner on probation. Real party in interest concedes the point. The Court of Appeal in the past has expressed surprise that respondent would doubt its powers over the probation department. (In re Dennis H., 19 Cal.App.3d 350, 355, n. 7, 96 Cal.Rptr. 791.) Respondent's Juvenile Court Judicial Manual, prepared in 1979 by Judge Richard P. Byrne, presiding judge of respondent's juvenile court division, recognizes respondent's powers to correct abuses by the probation department. Respondent's misconception of its own powers in the instant case is immaterial, however, as respondent concluded that the probation officer had not abused his discretion and that the matter would not be referred back to the probation department even if respondent had the power to do so.

Petitioner next advances the somewhat ingenious argument that allowing the probation officer to require restitution deprives petitioner of the right to jury trial on the issue of his liability to the victim and also denies him due process and equal protection. The constitutional guarantees which petitioner cites are ones which the courts have sought scrupulously to preserve over the years. By invoking them petitioner diverts attention from the true issue at bar: the language and purpose of section 654.

That statute provides, in pertinent part, “In any case in which a probation officer, after investigation ... concludes that a minor is within the jurisdiction of the juvenile court ... he 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 or subsequent to dismissal of a petition already filed, and with consent of the minor and the minor's parent ... delineate specific programs of supervision for the minor, for not to exceed six months, and attempt thereby to adjust the situation which brings the minor within the jurisdiction of the court.... (W)hen in the judgment of the probation officer the interest of the minor and the community can be protected, the probation officer shall make a diligent effort to proceed under this section.” (Emphasis added.)

The statute by its terms requires the consent of the minor and his parent to the supervisory program worked out by the probation officer. Clearly, if the minor, or his parent, disputes liability to a purported victim of the minor's conduct, or if they dispute the amount of restitution, they may withhold consent to the voluntary supervisory program and litigate the matter in a section 602 adjudication hearing. They may, by refusing to make any restitution payments, force the victim to file a civil action to recover his losses in which the minor could demand a jury trial.² If a minor is willing to make restitution, but disputes the amount of restitution, he may seek to establish that his estimate of the loss is more accurate than the probation officer's, by adducing evidence to that effect at a hearing, such as was held below, on the question of whether the probation officer has abused his discretion. Petitioner made no effort to present such evidence below.

No minor has a vested right to informal probation. Section 654, in addition to requiring the consent of the minor and his parent, also requires that the interest of the community be protected under the probation officer's supervisory program. The statute was not designed to accommodate a case in which a minor causes serious financial loss to an innocent third party and then disputes the probation officer's determination that he should make restitution as part of the probationary program. The statute does not deprive the minor of his rights to a jury trial, to due process or to equal protection. What it does deny him is his right to have his cake and eat it too, when he claims suitability for section 654 probation, but withholds consent to the supervisory program worked out by the probation officer.

Petitioner's most serious contention is that the probation officer abused his discretion by requiring, as a condition of informal probation, an amount of restitution which exceeded petitioner's ability to pay. It is recognized that requiring a minor to make restitution to his victim serves a rehabilitative function. (In re Ricardo M., 52 Cal.App.3d 744, 748, 125 Cal.Rptr. 291.) When a minor is adjudicated a ward of the court pursuant to section 602 and placed under the supervision of the probation officer, the court may require that he go to work to earn money to make restitution. (s 730.) The probation officer testified, in the instant matter, that department policy did not call for full restitution in all section 654 cases, that the minor's ability to pay was taken into consideration, and that he would have worked out a monthly payment schedule commensurate with petitioner's ability to pay had the initial good faith payment been made. This testimony, together with the other evidence before respondent court, permits several conclusions, to wit: that the probation officer reasonably concluded that restitution was an essential rehabilitative factor in this case; that petitioner's nonremunerative employment in the family business was a barrier to his ability to make restitution which he and his family voluntarily erected; that since petitioner was not attending school he was available to work full time; that no showing was made that petitioner could not have obtained gainful employment elsewhere which would have enabled him at least to raise the $250 good faith money which the probation officer required as a condition of informal probation; and that petitioner's failure to make any efforts to obtain such employment, or to make or even offer to make any token payments from his earnings during the pendency of the proceedings below, rendered him unsuitable for section 654 probation. Respondent did not err in declining to find that the probation officer had abused his discretion.

The passage of time since respondent issued the order here under review may have caused some alterations in petitioner's financial circumstances. If petitioner is now in a position to make substantial restitution or is willing to obtain employment which would enable him to do so, respondent may wish to allow him the opportunity to do so and to reapply for section 654 probation. Nothing herein is intended to preclude respondent's discretion in this regard.

The alternative writ is hereby discharged. The peremptory writ is denied.

FOOTNOTES

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

2.  Such an action may be filed by the victim even if the minor does consent to the probation officer's plan of restitution.

ASHBY, Associate Justice.

STEPHENS, Acting P. J., and HASTINGS, J., concur.