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In re Timothy N.

California Court of Appeals, Fourth District, First Division

May 22, 2013

In re TIMOTHY N., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent,
TIMOTHY N., Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County No. J225395, Carlos O. Armour, Judge.

Kleven McGann Law and Sara Elizabeth Kleven, 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, Senior Assistant Deputy Attorney General, James Dutton, Meredith S. White, and Kimberley Donohue, Deputy Attorneys General, for Plaintiff and Respondent.




Timothy N., a juvenile, pled guilty to one count of burglary of an inhabited dwelling, a felony, in exchange for the dismissal of five other counts and the agreement of the prosecutor that if Timothy "successfully complete[d] probation" the prosecutor would dismiss the residential burglary allegation and reduce the charge to a misdemeanor. The parties did not further define "successfully complete probation."

Among the conditions of probation was an order that Timothy and his parents be jointly and severally liable, together with the other boys involved in the burglary scheme, for restitution to the victims for their losses. The restitution totaled more than $20, 000. After two years of probation, Timothy had fulfilled all of the other conditions of probation, and he and his parents and the other boys had paid approximately $1, 500 of the total restitution owed. At a hearing, the trial court acknowledged that Timothy had performed successfully on probation and converted the remaining restitution obligation to the multiple victims into civil judgments against Timothy and his parents. The court then said that it was "terminat[ing] jurisdiction... successfully" based on the court's finding that "Timothy has complied with all the terms and conditions and he has terminated probation entirely successfully."

Upon a defense motion for dismissal of the residential burglary allegation and reduction of the burglary charge to a misdemeanor, the prosecutor objected, arguing that Timothy had not successfully completed probation because the full amount of victim restitution had not been paid. The court denied the defense motion to enforce the plea agreement on this ground. On appeal, the parties disagree as to whether Timothy "successfully complet[ed] probation, " such that the People must honor their portion of the agreement.

Because there is no evidence that Timothy's failure to pay the full amount of the restitution was willful or that his failure to pay is attributable to any reason other than an inability to pay, and in view of the court's finding that Timothy fulfilled all of the conditions of probation with the exception of the restitution condition, which the court converted to a civil judgment, we conclude that, as a matter of law, Timothy "successfully complete[d] probation." We therefore reverse the trial court's order and remand the matter to the trial court to enforce the terms of the plea agreement.



Between September 7 through 9, 2009, Timothy and three friends broke into six different residences and stole items from each of the homes.[1]

The San Diego County District Attorney filed a complaint against Timothy alleging six counts of burglary. (Pen. Code, § 459.)[2] The complaint further alleged that the burglaries were of inhabited dwellings. (§ 460.)

On March 15, 2010, Timothy's attorney indicated to the court that Timothy was prepared to enter an admission with respect to count 1 and its corresponding allegation, "with the understanding that counts 2, 3, 4, 5, and 6 will be dismissed with a Harvey[3] waiver and restitution, " and "[a]lso with the understanding that if Timothy successfully completed probation a [section] 460 allegation will be dismissed and the [section] 459 [charge] would be reduced to a misdemeanor pursuant to [section] 17[, subd.] (b)(4)." The court confirmed with Timothy that he was agreeing to admit to the allegations supporting count 1 and also admit the inhabited dwelling allegation in exchange for the terms that Timothy's attorney had recited.

Timothy proceeded to admit the truth of the allegation in count 1, as well as the inhabited dwelling allegation. The court dismissed the remaining counts with a waiver pursuant to Harvey, supra, 25 Cal.3d 754. The trial court then said to Timothy, "And the agreement is that should you successfully complete probation that at the time that your probation is completed the allegation making this a residential burglary would be dismissed and the [section] 459 burglary charge may be reduced to a misdemeanor pursuant to [section] 17[, subdivision] (b) of the Penal Code. Is that your understanding?" Timothy responded, "Yes."

The probation officer's social study report that was submitted to the court prior to the wardship hearing included a number of suggested conditions of probation, including that Timothy be ordered to perform 40 hours of community service, complete an anti-theft class, submit to substance abuse testing, participate in individual and family counseling, write letters of apology to the victims, attend an open house at Juvenile Hall, be prohibited from associating with gang members, and that he be "held responsible for any restitution ordered." With respect to the imposition of a fine, the probation officer noted, "Due to the family's limited income, it appears to the probation officer there are insufficient financial resources that support imposing a fine pursuant to [Welfare and Institutions Code section] 730.5."[4]

The court adjudged Timothy to be a ward of the court on April 7, 2010, and placed him on probation. The court imposed a number of probation conditions, including the conditions suggested in the probation officer's report. The probation conditions included the following:

"The minor and his/her parents, [L.L.] and [H.N.] are presumed jointly and severally responsible for the payment of restitution, fines or penalty assessment.

"[¶]... [¶]

"The minor and companion(s)... are jointly and severally responsible for the payment of restitution ...

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