In re A.A.

Filed 12/22/09 In re A.A. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Hugo J. Loza, Judge.

Elaine Forrester, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant, A.A., contends that the juvenile court erred in committing him to the Tulare County Youth Facility Program for one year. We disagree and will affirm the juvenile courts commitment order.

STATEMENT OF CASE

In May 2006, appellant had misdemeanor adjudications pursuant to Welfare and Institutions Code section 602^[1]for petty theft (Pen. Code,  484, subd. (a)) and disturbing the peace (Pen. Code,  415). In January 2007, appellant had misdemeanor adjudications for vandalism (Pen. Code,  594, subd. (a)) and disturbing the peace (Pen. Code,  415). Appellant was placed on probation. On February 20, 2007, appellant waived his right to a hearing and admitted violating the conditions of his probation. The court referred the matter to probation for a recommendation.

On February 20, 2007, appellant was in the Pod 5 Classroom of the Tulare County Juvenile Facility. A correctional officer, responding to a security alarm, observed appellant and a second minor, C.W., kicking J.G. The victim was lying on the ground on his left side in the fetal position as appellant kicked him in the head and face with his right foot. J.G. was trying to cover his face. Appellant and C.W. ignored the officers order to move into a security position on the ground. The officer had to spray C.W. and appellant with pepper spray to get them to back away from the victim.

Following a contested jurisdiction hearing on March 21, 2007, the juvenile court found true an allegation that appellant committed an assault by means likely to cause great bodily injury (Pen. Code,  245, subd. (a)(1)) and found the offense to be a felony. On April 10, 2007, the juvenile court placed appellant on probation upon various terms and conditions. The court incorporated by reference the findings and orders of the probation report, including a finding that appellants offense was a felony. The court committed appellant to a short-term program.

On October 24, 2007, appellant waived his right to a hearing and admitted an allegation that he violated his probation by failing to attend school. On January 29, 2008, appellant waived his right to a hearing and admitted an allegation that he violated probation by failing to participate in an electronic monitoring program. On February 13, 2008, the court ordered appellant to complete a boot camp program.

On December 4, 2008, a new allegation was filed that appellant violated the terms of his probation by failing to attend school. Appellant waived his right to a hearing and admitted the allegation on December 5, 2008. The probation officer noted appellant had no Individual Education Plan (IEP). School records indicated appellant affiliated with a gang. Appellants attendance in school was poor. His attendance rate was only 38 percent. When appellant did attend school, he performed poorly. The probation officer recommended appellant be placed in the Tulare County Youth Facility Program and attend school every day.

Defense counsel argued at the disposition hearing on January 27, 2009 that appellant had neurological issues and needed an IEP. Counsel mentioned they did not have the Special Case Investigation Unit (SCIU) report, but appellant had significant issues. The juvenile court noted other less restrictive alternatives had been tried but did not help appellant. The court noted appellant made some disturbing comments to officials at juvenile hall. The court was concerned appellant could injure someone. The court was also concerned appellant was not willing and unable to stay out of trouble. The court noted, some of appellants relatives had been involved in shootings and one had been killed.

The court found appellant had continuously failed to comply with its orders. The court ordered that the Tulare County Mental Health Departments SCIU report be reviewed at a future hearing so it could be included in appellants case plan.^[2] The court readjudged appellant a ward of the court, placed him on probation, and committed him to the local youth facility program. !(RT 116, CT 559-561)!

COMMITMENT TO LOCAL YOUTH FACILITY

Appellant contends the juvenile court abused its discretion in committing him to the Tulare County Youth Facility Program. We disagree and will affirm the judgment of the juvenile court.

Under section 725.5, the juvenile court must consider the circumstances and gravity of the offense committed by the minor. The court must consider the broadest range of information in determining how best to rehabilitate a minor and to afford him or her adequate care. A juvenile courts order may be reversed on appeal only upon a showing the court abused its discretion. Appellate courts must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.)

The record must be viewed in light of the purposes of juvenile law. As described in section 202, those purposes include rehabilitation, treatment, guidance, punishment as a rehabilitative tool, and protection of the public. (In re Teofilio A. (1989) 210 Cal.App.3d 571, 575-576.)

The gravity of an offense, coupled with other relevant factors, is a consideration in committing a juvenile to a particular facility. (See In re Samuel B. (1986) 184 Cal.App.3d 1100, 1104, disapproved on another ground in People v. Hernandez (1988) 46 Cal.3d 194, 206, fn. 14.) Relevant considerations include the nature, duration, and context of the delinquent conduct, including the gravity of the offense. ( 725.5; In re Samuel B., supra, 184 Cal.App.3d at pp. 1103-1104.) The court may also consider the need to hold the minor accountable for his or her actions ( 202, subd. (b)), and the communitys interest in being protected from crime during rehabilitative efforts ( 202, subd. (a); In re Lorenza M. (1989) 212 Cal.App.3d 49, 57-58).

Appellant had a prior juvenile record that included several prior violations of probation. Appellant was truant and failed to comply with orders of the juvenile court. The court ordered that an SCIU evaluation that had been made be considered at a future hearing and included in appellants case plan. There is no explanation in the record as to why the report was not presented at the disposition hearing, but the juvenile court ordered it be considered at a future hearing. From the record, it appears that the juvenile court was willing to include this information and to modify appellants case plan if necessary. Having the SCIU and performing an IEP were not necessary components for the court to make its commitment order, especially when the juvenile court was willing to include such information in appellants case plan.

Appellant argues that the juvenile court inappropriately referred to matters outside the record in making its commitment order. We find the court was merely voicing concerns about appellants safety when it referred to shootings in which family members were involved. Appellants safety, his ability to reform in his family environment, and public safety are appropriate considerations for a court to make in evaluating the disposition of a wards case. Appellant had not successfully reformed. His poor performance on probation and truancy were significant factors justifying the courts commitment order. On appeal, we review placement decisions only for abuse of discretion and indulge all reasonable inferences to support the decision of the juvenile court. (In re Asean D. (1993) 14 Cal.App.4th 467, 473.) The juvenile court did not abuse its discretion in ordering appellants commitment to a local youth facility for one year.

DISPOSITION

The judgment of the juvenile court is affirmed.

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^*Before Vartabedian, A.P.J., Gomes, J., and Kane, J.

^[1] Except as otherwise indicated, statutory references are to the Welfare and Institutions Code.

^[2] A psychologist evaluated appellant on January 14, 2009. Her report was submitted on January 22, 2009, but was apparently not available for the disposition hearing. The psychologist concluded appellant was impulsive, needed mental health therapy to address problems with anger management, required substance abuse treatment, should have further assessment of his academic needs, be encouraged to participate in positive after school activities, and qualified as a seriously emotionally disturbed child. Although there was a report that appellant suffered Attention Deficit Hyperactivity Disorder, the psychologist saw no related symptomology.