In re Alejandro L.
Filed 9/4/13 In re Alejandro L. CA4/3
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opinion has not been certified for publication or ordered published for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
FOURTH
APPELLATE DISTRICT
DIVISION THREE
In re ALEJANDRO L., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
ALEJANDRO L.,
Defendant and Appellant.
G047049
(Super. Ct. No.
DL041340)
O P I
N I O N
Appeal from an order of
the Superior Court
of
County, Jacki C. Brown, Judge.
Affirmed.
Donna L. Harris, 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, A. Natasha Cortina and Ronald A. Jakob,
Deputy Attorneys General, for Plaintiff and Respondent.
* * *
The minor argues the
refusing to enforce a prior order to evaluate a specific home for
placement. At best, this argument is
premature, but in any event, the minor has failed to establish error. We therefore affirm.
I
FACTS
The
underlying facts of the case are not relevant to this appeal. Suffice to say that on October 24, 2011, the minor, Alejandro L., who
was 12 years old at the time, was charged with five counts relating to the
sexual abuse of his sister, who was three years younger. Prior to an adjudication hearing on February 9, 2012, Alejandro pled
guilty to count one, continuous sexual abuse of a child under age 14, and the
remaining counts were dismissed.
At
the disposition hearing on April 18, 2012, evidence was
presented regarding the appropriate placement for Alejandro. The defense wanted him placed with his
godfather, Fernando V., and offered several witnesses in support of this
request. Fernando V. testified, among
other things, that he wanted to help Alejandro and was able to make sure he
followed the court’s orders. He was
willing to have Alejandro placed in the home he shared with his long-term
girlfriend. Alejandro’s older sister
also testified, and stated she planned to live with Fernando V. and his
girlfriend to provide support and supervision for him.
Jennifer
Bosch, a practicing clinical psychologist, testified that placement with
relatives or a community based facility has been found to result in a greater
likelihood of successful rehabilitation than a residential facility. Based on this and a variety of other factors,
she recommended Alejandro’s placement in a community based program. She also opined he could live in a home
environment with the proper “interventions†in place.
Following
the disposition hearing, the court declared the minor a ward under Welfare and
Institutions Code section 602, and ordered him to serve 182 days in custody
with 182 days’ credit for time served.
The court found that continued residence in the home of the minor’s
parents was contrary to his welfare, and ordered custody vested with a
probation officer for suitable placement.
He was also ordered to enroll in a sex offender program and to abide by
various other terms and conditions of probation.
Defense
counsel requested that the court direct probation to consider Fernando V.’s
home for placement. The court
responded: “I actually will direct them
to consider that. I am not telling them
to consider that first, but I will order that they consider that and then
assess the home of Fernando [V.] for that purpose.†The court also ordered: “I will order that they [probation] follow
their standard practices and procedures that are statutorily mandated in
determining the least restrictive placement that still meets the primary and
probationary needs of this individual minor.â€
Two
weeks later, on May 4, 2012,
the court held a placement hearing. Defense
counsel complained that Alejandro had been placed in a treatment facility
outside the county, that the godfather and other family members had not been
contacted by probation, and that counsel had not been contacted for further
information. Defense counsel did not
believe that probation had followed the court’s order.
The
court responded: “Well, I did not order
them to either contact or evaluate the family.
I had told them as part of my placement order that they should consider
placement as requested by the family with the godfather and the long-term
girlfriend. I did not state that that
was to be a priority placement consideration, nor did I mandate that they
contact the family about it. [¶] They
have protocol that they are to follow.
Yes, I do accept that that is how they conduct their placement
consideration evaluations. I do have a
one-page statement that he was placed at CTC [Children’s Therapeutic Community]
on April 27th, which would have been Friday, the date [on] which they contacted
the father, or the father contacted them. . . .
And they are requesting that I take this off calendar because he has
been placed. [¶] Had he not arrived or
been placed by today’s date, that would have been a serious concern of what has
happened. But by all appearances, the
protocol and the court’s order has been followed within the time limits
afforded probation.â€
The
court continued: “We have a review set
for March 30th and a review set for September
17, 2012, [and for both dates] we will receive full reports. And we will review them in court. And, of course, those are dates [on] which if
it is consistent with the placement, he can be present . . . . But today’s hearing has been requested [to]
be taken off calendar simply because he has been placed by probation at CTC . .
. . [¶] This wasn’t a case where they
placed him at a facility and then were silent for numbers of days
thereafter. Like I say, I did not order
them to interview the family before they make a placement selection. I told them to consider in their placement
selection the godfather and his girlfriend, as requested by the family, but
that was all I ordered in my order to them.â€
Minor’s
counsel again expressed her concern that the godfather had not been contacted,
then added: “So to the extent . . . my offer of proof does not give the court
cause for concern, then I will bring a motion and handle it that way.†The court responded: “Yes, please.â€
The
minor subsequently filed the instant appeal.
II
DISCUSSION
“The
appellate court reviews a commitment decision for abuse
of discretion, indulging all reasonable
inferences to support the juvenile court’s decision.
[Citations.]†(
1392, 1396.) Further, it is a
“fundamental rule of appellate law is that the judgment challenged on appeal is
presumed correct, and it is the appellant’s burden to affirmatively demonstrate
error.†(People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
This
is not a close case. At the disposition
hearing, the court ordered probation “to consider†Fernando V.’s home for
placement, and not necessarily as the first option, but in the course of their
ordinary “standard practices and procedures that are statutorily mandated in
determining the least restrictive placement that still meets the primary and
probationary needs of this individual minor.â€
Less than 15 days passed, the minor was placed at a treatment facility
rather than with Fernando V., and Fernando V. and his girlfriend had,
apparently, not been contacted or had their home evaluated at that point.
The
court was nonetheless satisfied that its order had not been violated at that
point, stating, “I had told them as part of my placement order that they should
consider placement as requested by the family with the godfather and the
long-term girlfriend. I did not state
that that was to be a priority placement consideration, nor did I mandate that
they contact the family about it.â€
The
court is the best judge of whether its own order has been violated, and we find
no abuse of discretion in the court’s conclusion that no such violation had
occurred. Further, we agree that the
court’s order was merely “to consider†Fernando V.’s residence, and it was not
given a higher priority than any other potential placement. Only 15 days had passed at the time of the
placement, and probation could have had any number of reasons why it could not
properly evaluate and place Alejandro there before the review hearing. Among other things, it is possible that some
information could have arisen that would disqualify Fernando V.’s home during
that period — it is impossible to tell
on this record.
The
minor’s counsel stated she intended to bring a separate motion on this issue,
which, frankly, would have been the subject of a more meaningful review than is
possible here. Such a motion,
presumably, would have included evidence that would have shed more light on the
facts surrounding Alejandro’s placement that are simply not present here, such
as why probation placed Alejandro as it did, whether it intended to evaluate
Fernando V.’s home further, and if not, why not. No such facts are present in the record here,
and we cannot conclude on the record before us that the trial court violated
its own order. The minor has simply not
met his burden to establish error.
III
DISPOSITION
The order
is affirmed.
MOORE,
J.
WE CONCUR:
O’LEARY, P. J.
IKOLA, J.
