In re Deanna I.

Filed 6/21/07 In re Deanna I. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Deanna I. (Deanna) appeals from a juvenile court dispositional order in a wardship proceeding under Welfare and Institutions Code section 602. She contends the juvenile court abused its discretion in ordering out-of-home placement instead of continued residence in her mothers home while on supervised probation. She also contends that the court erred because the placement was for an indefinite term. We will modify the dispositional order to state a maximum period of confinement (Welf. & Inst. Code,  726, subd. (c)) and, as so modified, affirm the order.

I. FACTS AND PROCEDURAL HISTORY

Deanna was charged in an original wardship petition under Welfare and Institutions Code section 602, alleging four misdemeanor violations: unlawfully causing a fire (Pen. Code,  452, subd. (d)), vandalism (Pen. Code,  594, subd. (b)(2)(A)), battery (Pen. Code,  242), and possession of marijuana (Health & Saf. Code,  11357, subd. (b)).

At the June 19, 2006, hearing on the petition, Deanna admitted the misdemeanor battery charge, and the prosecutor dismissed the other three charges subject to a waiver under People v. Harvey (1979) 25 Cal.3d 754 (Harvey). Deanna stipulated to the factual basis for the battery charge.

A. Underlying Offenses

The probation departments disposition report described the incidents underlying the petition as follows.^[1]

1. Causing a Fire and Vandalism (Counts I and II)

On March 3, 2006, Deanna and her sister, Angelica, were observed standing near a garbage can at their Novato middle school. Angelica removed a food wrapper from the garbage can, used a lighter to set the wrapper on fire, and dropped it into the can, causing the contents to catch fire. The girls walked away. School personnel extinguished the fire.

The assistant-principal interviewed the girls separately in the presence of a police officer. Angelica denied any involvement but could not explain why she had two lighters. Deannas demeanor was defiant and obstinate. She acknowledged that she had been near the garbage can but refused to name the person who started the fire because she did not want to be a rat. Through her body language and voice, the officer perceived, Deanna tried to act hard as if above the law. She told the officer that she had been bored and told her sister to light the fire, and although Deanna didnt have the balls to do it herself, she knew that her sister would. Deanna stated that she helped her sister and acted proud of it. When Officer Howard advised her of the consequences to her sister, Deanna responded Fuck the law! and I hate this school anyway.

2. Battery and Possession of Marijuana (Counts III and IV)

On the evening of March 17, 2006, Deanna, Angelica, and some friends entered a Target store in Novato. Because the juveniles were loud and causing a disturbance, the store supervisor, Mr. Lewis, asked them to leave. The minors began fighting, the Novato Police Department was called, and Officer DeBernardi arrived at the scene. Because the incident started quickly and involved several minors, Lewis could not be specific about the circumstances of the altercation. He observed Angelica punching and kicking one of the victims, Melissa. He also recalled that Deanna was involved in the incident, but he did not specifically recall her hitting anyone. Videotape from the stores security camera showed Angelica and another girl, Makala, repeatedly punching Melissa, but it did not show Deanna hitting Melissa.

Officer Welch contacted Deanna at the scene. Deanna was yelling profanities at the victims, Melissa and Lauren. She screamed that she was going to kick their ass. When the officer tried to ask Deanna what had happened, she continued to yell at the victims and told them they were going to get it. Deanna eventually told Officer Welch that Angelica had gotten into a fight with the Fucks standing by the door to Target. She told the officer, Go ahead and arrest me, I am going to kick their fucking ass. She admitted that she had marijuana in her sweatshirt and that she had punched Melissa.

Melissa told Officer Welch that Deanna, as well as Angelica and Makala, punched and kicked her while she was on the ground. Officer Welch observed injuries to Melissa consistent with her statement. Melissas sister Lauren and Laurens friend confirmed Melissas version of the events.

Deanna later explained to the probation officer that she, Angelica, and a friend (Makala) went to Target and bought Air-Duster so they could huff (inhale). Deanna stated they had never tried this drug before, and it put her in a bad mood. They got into a confrontation with the victims, and one of the victims pushed Angelica to the ground. The victims left, and Deanna, Angelica, and Makala followed them. One of the victims disrespect[ed] them, so they hit her. Deanna believed she was defending Angelica.

B. Probation Report and Recommendation

The probation report advised that Deanna was 13 at the time of the charged offense. She has five younger siblings from relationships her mother has had, and her biological father is deceased. According to Deannas mother, all of the men with whom she had a relationship were alcoholics and physically abusive.

Deanna and her younger sister Angelica were removed from their mothers home in June 2002 and placed in foster care by Child Protective Services based on sexual abuse by their mothers boyfriend. After a time in foster care, the girls went to live with their father in Ohio, as the court considered permanently removing the girls from the mothers home. In May 2004, Deanna was removed from her fathers home when she disclosed that he was physically and emotionally abusing her. At some point, she was placed in a foster home. Angelica was removed from her fathers home as well, because of physical abuse. After Deanna ran away from her foster home placement, she and Angelica were returned to their mothers home in December 2005. The mother was receiving services though the Marin County Probation Department after being placed on probation following a misdemeanor forgery conviction.

Deannas mother stated in an interview with the probation officer that for the first several weeks, her daughters did well in her home. However, in January 2006 their behavior deteriorated and had been out of control. In addition to her daughters habitual truancy, both were abusing drugs, engaging in unprotected sex, associating with older males and gang members, and refusing to participate in counseling or treatment. They had run away from home a number or times, come and go . . . as they please, and have stayed out all night on numerous occasions. Many of their friends were members of the 18th Street Gang. Further, the mother noted, the incidents before the court were just examples of her daughters poor behavior, and she was seriously frightened that her daughters may end up overdosing on drugs or becoming pregnant, if they continue on their current path.

Deanna and Angelica told the probation officer that they were angry at their mother at times, but are still open with her and agree they communicate well. The girls admitted, however, that they do what they want and do not follow her directives.

Deanna had poor school attendance and was suspended twice for poor behavior and defiance. After the garbage can fire, she was suspended or expelled. In April she was referred to County Community School but quickly stopped attending. The probation officer repeatedly talked to Deanna about the importance of going to school, but despite Deannas promises she had yet to attend one day of school since her last court appearance.

Deanna admitted to the probation officer that she did not attend school regularly and used alcohol and illicit drugs. Her drug of choice is marijuana, which she was smoking several times a week and previously smoked on a daily basis. She had used cocaine two months previous for one to two weeks. Despite hospitalization after taking Ecstasy for the first time about two months earlier, Deanna continued to use the drug. Deanna indicated she had last smoked marijuana five days before the probation interview and said she did not need treatment because she believed she could stop on her own. She volunteered to take a drug test in June 2006, and the results were negative for alcohol or illicit drugs. Deanna was participating in counseling for victims of sexual abuse until the program she was attending was closed.

Deanna associated with members of the 18th St[reet] Gang. Despite her mothers attempts to discourage it, Deanna associated primarily with older male 18th Street Gang members (her uncles had been members also) and she was taking steps to get jumped in. Deanna had gang tattoos, which she acquired after the charged offenses. Despite intervention by the probation department, she still intended to get jumped in to the gang.

Deanna had no prior referrals to the probation department, and the probation officer believed Deanna had communicated honestly about her behavior.

The probation department recommended that Deanna be declared a ward of the court and be placed on supervised probation for one year. The probation department did not recommend removing her from her mothers home.

C. The Dispositional Order

At the July 5, 2006, dispositional hearing, the juvenile court told Deanna: You have been engaged in a course of conduct that you should find frightening and certainly the rest of us do which led to violent behavior and its leading you to more and more violent behavior and your determination to jump into the 18th Street Gang. And notwithstanding all that has gone on before, which is incomprehensible, its almost as if you say you want to kill yourself slowly and painfully, because that is where thats going to lead.

The court then rejected the effectiveness of probation. And to imagine that somehow or another a year of intensive supervised probation is going to get to the heart of you and of your problems is just unfortunate in my opinion and unrealistic. The court explained: Youve formed close relationships with people who are deeply involved in criminal street gang activities. And youve engaged in dangerous sexual activities. And you have inflicted serious harm on total strangers. Because we want to try to make up for lost time here, and Im not telling you that Im sending you to prison, but what Im telling you is were going to remove you from your home and placing you somewhere where you can get education and information that youll need to be a better adjusted citizen and to be a happier person. [] You didnt look very happy when you came in here and you look much less happy as Im giving you this news. But the whole plan here is to find out what it is that is underlying this and treat it and understand you and treat it and return you to society a better adjusted happier person who has some realistic hopes for success in the future. But given the course of conduct now, there would be no realistic hope. And we need to stop that.

When defense counsel stated that this was Deannas first offense in this county, the court noted that Deanna had obtained her gang tattoos after the juvenile court proceedings had begun. Defense counsel characterized her behavior as a cry for help, to which the court replied: And were trying to give her the help that we think she really needs. And I dont think shes going to get that help outside. It hasnt happened before. And as Ive acknowledged, the dependency system failed her. And we are most regretful. And to the extent that I can speak for the Court Im very sorry the dependency system failed her. [] Clearly she was a child in need of help and didnt get the kind of help she needed. But instead was taken from the frying pan and thrown into the fire. That doesnt mean we should look the other way now. And we cant let her life get worse simply as an accommodation to the fact that this system hasnt done as well as it should have previously. The court emphasized: the whole goal of wherever it is youre going to be placed will be to address your particular needs and to turn you around if possible as soon as is possible so that you wont be the very, very unhappy child that you are before the Court today.

The court concluded: Its a matter of immediate urgent necessity for the protection of Deanna and the protection of other persons and property that she be detained. Continuance in the home of the legal guardian is contrary to Deannas welfare. . . . [] Temporary placement and care is vested with the probation officer. And Deanna will be declared a ward of the court limited to supervised probation for a term of -- an indefinite term. As a condition of probation the court ordered, among other things, that Deanna attend school, not commit criminal acts, not contact the battery victims, participate in individual family counseling and alcohol and drug treatment as directed, be evaluated by a psychologist, abstain from use of alcoholic beverages and illicit drugs, complete an anger management program, not associate with gang members, and make restitution.

This appeal followed.

II. DISCUSSION
Deanna contends that the juvenile court abused its discretion in ordering out-of-home placement rather than a home disposition on probation. She also contends that the court erred in placing her for an indefinite term. We address each contention in turn.

A. Out-of-Home Placement

Deanna argues that the dispositional order should be reversed because the court failed to assess the benefit of alternative dispositions and the possible detriments of out-of-home placement. She is incorrect.

1. Applicable Law

At a delinquency disposition, the juvenile court should act consistent with the legislative purpose of the juvenile law, as expressed in [Welfare and Institutions Code] section 202: The purpose of the juvenile delinquency laws is twofold: (1) to serve the best interests of the delinquent ward by providing care, treatment, and guidance to rehabilitate the ward and enable him or her to be a law-abiding and productive member of his or her family and the community, and (2) to provide for the protection and safety of the public . . . . (In re Schmidt (2006) 143 Cal.App.4th 694, 716; see Welf. & Inst. Code,  202, subds. (a), (b), (d).)

Welfare and Institutions Code section 202, subdivision (e) sets forth a range of sanctions for juvenile offenders, including payment of a fine, community service, probation, commitment to a local detention center or treatment facility such as juvenile hall, and commitment to the California Youth Authority (CYA).

Although the juvenile court should consider less restrictive alternative sanctions, it is not required to begin with the least restrictive alternative. In appropriate circumstances the juvenile court may properly exercise its discretion by declining to order a less restrictive option (such as probation), even though the less restrictive option has not been tried before. (John L. v. Superior Court (2004) 33 Cal.4th 158, 184-185 & fn. 10 (John L.).)

In making a dispositional order under Welfare and Institutions Code section 602, the court shall consider, in addition to other relevant and material evidence: (1) the age of the minor; (2) the circumstances and gravity of the minors offense; and (3) the minors previous delinquent history. (Welf. & Inst. Code,  725.5.)

A juvenile courts commitment order may be reversed on appeal only upon a showing the court abused its discretion. [Citation.] We 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. [Citation.] (Robert H., supra, 96 Cal.App.4th at pp. 1329-1330.)

2. Juvenile Courts Exercise of Discretion

The juvenile court found that continuance in the mothers home would be contrary to Deannas welfare and ordered Deanna placed in the care of the probation department for the purpose of an appropriate placement. Substantial evidence supports the courts factual finding, and the disposition was not an abuse of discretion.

Starting with the factors listed in Welfare and Institutions Code section 725.5, Deanna was 13 years and 11 months old at the time of the dispositional hearing. A minors young age may mitigate against commitment to a facility that also houses older, criminally-sophisticated wards. (See In re Tyrone O. (1989) 209 Cal.App.3d 145, 152 (Tyrone O.) [alternatives to placement in the CYA should be explored to avoid committing young, unsophisticated youths with individuals who are experienced, sophisticated, and criminally oriented].) Here, however, the court did not order Deanna to the CYA or a facility for experienced criminals. Rather, the court directed the probation department to locate a suitable facility in order to steer Deanna away from future criminality, antisocial behavior, and self-destructive acts such as unprotected sex and substance abuse. Under the circumstances, the courts intervention in Deannas life while she was still relatively young was reasonable and appropriate.

As to the circumstances and gravity of the offenses, the delinquency petition was sustained on a charge of battery. Deanna argues that the offense was not serious. However, the victim Melissa asserted that she was repeatedly kicked and punched while on the ground, and the investigating police officer observed that her injuries were consistent with this statement. Deanna admitted that she hit the victim after she disrespected her. As the juvenile court found, Deanna perpetrated a violent act inflicting serious physical harm on a total stranger.

As to Deannas previous delinquent history, this was her first sustained delinquency petition. However, as the court noted when defense counsel mentioned that it was Deannas first offense in this county, Deanna obtained her gang tattoos after formal delinquency proceedings had commenced, suggesting her brush with law enforcement, the probation department, and the juvenile court did nothing to dissuade her from pursuing membership in a gang. In addition, Deanna ran away from her foster care placement in November 2005, believed she needed no further counseling or treatment, and failed to uphold her promises to the probation officer that she would attend school. Thus, although there were no prior formal attempts to rehabilitate Deanna, it was reasonable to conclude that supervised probation while at home would be ineffective.

Moreover, the overarching circumstance was that Deanna was undisputedly out of her mothers control. Deannas mother explained that Deannas behavior had been out of control and that, while in her custody, Deanna was habitually truant, used drugs, had unprotected sex, ran away, stayed out all night, and associated with older male gang members. Deanna admitted that she did not obey her mothers directives and did whatever she wanted to do. Not only was she involved in the battery of Melissa, she coaxed her younger sister to start a fire that led to Deannas suspension or expulsion from school. Her refusal to attend school thereafter, as well as her involvement with drugs and unprotected sexual activity, association with a gang, and aspiration to become one of its members while living with her mother, support the conclusion that continuance in her mothers home was contrary to Deannas welfare and placement in a residential treatment facility was appropriate. Given the mothers inability to provide the necessary structure for Deanna, it was not an abuse of discretion to provide her with an environment more conducive to rehabilitation.

Deannas arguments are without merit. She asserts primarily that the juvenile court did not adequately consider the less restrictive alternatives of supervised probation. To the contrary, the court reviewed the probation report and recommendation and concluded that the recommendation of supervised probation alone was inappropriate. Specifically, the court determined that probation (by itself) offered no realistic hope of rehabilitation. The court further noted: to imagine that somehow or another a year of intensive supervised probation is going to get to the heart of you and of your problems is just unfortunate in my opinion and unrealistic. The fact that the court disagreed with the probation departments recommendation does not mean that the court did not consider it. (See also Robert H., supra, 96 Cal.App.4th at p. 1329 [juvenile court not obligated to follow probation officers recommendation].)

Deanna argues that ordinarily before a minor is removed from a parents physical custody, the alternative of probation must be pursued and fail. For this proposition she cites In re Kazuo G. (1994) 22 Cal.App.4th 1, 6 (Kazuo), which in turn relied on Welfare and Institutions Code section 726, subdivision (b). In a footnote, however, the Kazuo court advised: This rule is subject to exception, if the parent is incapable of caring for the minor or if the welfare of the minor requires removal from parental custody. ( 726, subds. (a) & (c).) (Kazuo, supra, at p. 6, fn. 3, italics added.) Here, the juvenile court found upon substantial evidence that Deannas welfare required removal from her mothers custody.

Lastly, Deanna argues that the out-of-home placement was an abuse of discretion because it was based almost entirely on the perceived seriousness of uncharged conduct, it failed to consider the probable benefit to Deanna of probation, and was thus based on retribution rather than rehabilitation. Deannas premise is incorrect: as we explained above, the courts consideration of Deannas uncharged conduct (such as the fire incident at school and other behavior) is entirely appropriate, and the court considered and rejected the likely benefits of probation.

Moreover, the idea that the juvenile court based the disposition on retribution rather than rehabilitation is entirely inconsistent with the record. Deanna refers us in this regard to the juvenile courts statement that Deanna had been engaged in a course of conduct that [she] should find frightening and certainly the rest of us do which led to violent behavior and its leading [her] to more and more violent behavior and [her] determination to jump into the 18th Street Gang. And notwithstanding all that has gone on before, which is incomprehensible, its almost as if [Deanna says she wants to kill herself] slowly and painfully, because that is where thats going to lead. Far from showing a punitive intent, the juvenile court was expressing in this statement a rehabilitative purpose in attempting to intervene in Deannas life in a meaningful and positive way, before something even more serious occurred.

Other comments by the court confirm that the court plainly had a rehabilitative purpose in mind in arriving at the disposition. The judge explained that an out-of-home placement was necessary so that Deanna may attend school and become a better adjusted citizen and . . . a happier person. He explained to Deanna that an evaluation would be done to determine why she feels and acts as she does and to try to find the best location where you can be meaningfully treated. (Italics added.) Further, the court noted, the whole plan here is to find out what it is that is underlying this and treat it and understand you and treat it and return you to society a better adjusted happier person who has some realistic hopes for success in the future. But given the course of conduct now, there would be no realistic hope. And we need to stop that. The court told defense counsel: And were trying to give her the help that we think she really needs. . . . [] . . . And we cant let her life get worse simply as an accommodation to the fact that this system hasnt done as well as it should have previously. (Italics added.) In summary, the court emphasized: the whole goal of wherever it is youre going to be placed will be to address your particular needs and to turn you around if possible as soon as is possible so that you wont be the very, very unhappy child that you are before the Court today. (Italics added.)

The court did not abuse its discretion.

B. Indefinite Term

Deanna contends that the court ordered out-of-home placement for an indefinite term in contravention of Welfare and Institutions Code section 726, subdivision (c).

Welfare and Institutions Code section 726, subdivision (c) provides: If the minor is removed from the physical custody of . . . her parent . . . as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court. [] . . . [] If the charged offense is a misdemeanor . . . the maximum term of imprisonment is the longest term of imprisonment prescribed by law. (Italics added.)

The juvenile court did not include a maximum confinement time (MCT) in the dispositional order. The MCT in Deannas case is six months, because that is the maximum term of incarceration an adult would receive for misdemeanor battery. (Pen. Code,  243, subd. (a).) Although not included in the dispositional order, the six-month MCT was set forth in the section 602 petition as to the battery count, expressed by the juvenile court judge before accepting Deannas admission of the offense, and contained in the probation officers report. Furthermore, Deanna agrees in her reply brief that the maximum term is six months and the order should be amended accordingly. We will modify the July 5, 2006 dispositional order to reflect a MCT of six months.

Respondent contends that the MCT does not apply to Trinity House, where Deanna was eventually placed, because there is no indication in the record that this facility constitutes [p]hysical confinement under Welfare and Institutions Code section 726, subdivision (c). Physical confinement means placement in a juvenile hall, ranch, camp, forestry camp or secure juvenile home pursuant to [Welfare and Institutions Code] Section 730, or in any institution operated by the Youth Authority. (See In re Randy J. (1994) 22 Cal.App.4th 1497, 1505 [Welf. & Inst. Code,  726 defines physical confinement as excluding time not spent in a secure facility].)

Based on the record before us, we cannot determine whether Trinity House is a secure facility or whether the MCT applies. If Trinity House falls within the definition of physical confinement under Welfare and Institutions Code section 726, subdivision (c), the MCT applies; otherwise, it does not.

III. DISPOSITION

The order is modified to recite that appellants maximum term of confinement pursuant to Welfare and Institutions Code section 726, subdivision (c) is six months. As so modified, the order is affirmed.

NEEDHAM, J.

We concur.

JONES, P. J.

GEMELLO, J.

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^[1] By agreeing to the Harveywaiver, the parties anticipated that the facts underlying counts I and II could be considered by the court in deciding the appropriate disposition, even though the counts themselves were dismissed. In any event, the Harveyrequirement that facts underlying other crimes cannot be considered has no application in juvenile court proceedings, because it would contravene the courts statutory obligation to take into account all relevant evidence at disposition. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329 (Robert H.); see Welf. & Inst. Code,  725.5.)