Filed 3/12/18 In re I.V. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



In re I.V., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

I.V.,

Defendant and Appellant.
D072720


(Super. Ct. No. J236560)

APPEAL from an order of the Superior Court of San Diego County, Aaron Katz, Judge. Affirmed.
Ashley N. Johndro, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
I.V. (minor) appeals an August 9, 2017 order of the juvenile court requiring him to participate in the Reflections Day Treatment Program (Reflections or program) as a condition of probation. Minor proceeds in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende). Affirmed.
BACKGROUND
In June 2016, a petition was filed alleging that on May 24, 2016, minor unlawfully and maliciously defaced, damaged, and/or destroyed real and personal property of another, causing damage of $400 or more (Pen. Code, § 594, subds. (a), (b)(1)).
An adjudication hearing on the petition was held on June 16, 2016. Minor's mother, D.V. (mother), testified that on the day of the incident, minor became mad when she refused to give him money. Minor went into his room and locked the door with a special electronic lock minor had purchased. Mother heard banging noises coming from his room. At some point, minor left the house. Mother went into minor's room and saw there were holes in the walls, the mattress was "cut up," and the door would not close because the wood frame had been damaged. Mother estimated she had not been in minor's room for about a year. Later that same day, the police were called. Mother testified minor purchased all the personal property inside his bedroom with money he received from his social security disability.
Minor's grandfather, Henry C. (grandfather), testified he owned the home where minor was living on the day of the incident. Grandfather also lived in the home. That day, grandfather was outside when he heard minor and his daughter (i.e., mother) arguing. While still outside, grandfather also heard a lot of "banging" coming from inside the room. When asked what he meant by "banging," grandfather testified it sounded as if minor was "hitting walls," "hitting something" inside the bedroom. Grandfather estimated these noises went on for about five or 10 minutes. According to grandfather, this was not the first time minor had engaged in such behavior when minor did not get "his way." Grandfather testified that, in addition to drywall damage, minor broke a lamp belonging to grandfather.
After hearing additional testimony from the responding officer and the argument of counsel, the court sustained the petition. In so doing, the court found as follows: "[T]here's circumstantial evidence to support the fact that the minor was engaged in vandalism by damaging not only the door frame but by virtue of causing damage to the walls contained within his room. The minor clearly was out of control and had lost his perspective on the appropriate way to behave. [¶] That being said, I don't believe the People have demonstrated beyond a reasonable doubt as to the exact amount of damage." As such, the court made a true finding that minor committed misdemeanor vandalism, a lesser included offense charged in the petition.
The record shows at the June 30, 2016 disposition hearing, the court placed minor on probation and, over objection, ordered that minor and his mother complete Reflections and abide by the rules and conditions of the program. In ordering minor to participate in that program, the court noted minor's high school grades were "poor; his behavior is poor. He's got—certainly from the psychological evaluation that I've reviewed, it indicates that he could use the additional support that will be provided at Reflections. And this is a young man who definitely needs the structure and support that Reflections will provide." At the conclusion of the hearing, the court noted it was going to continue to monitor minor and this case.
The record shows on September 13, 2016, the probation department notified the court that minor and his mother "have adamantly refused to enroll in Reflections because they feel that Reflections will have a negative influence on him and would not properly address his educational and rehabilitative needs." The probation violation report noted that mother refused to enroll minor in Reflections because "she was concerned about exposing him to gang activity, negative influences, and being around 'bad guys' all day"; that mother claimed minor had " 'several mental health issues' which would prevent him from succeeding at Reflections"; and that minor had not yet officially enrolled in any school.
At the September 13, 2016 hearing, minor's counsel noted that mother was "dead set" against enrolling minor in Reflections; that it was not minor's fault that he was not enrolled in the program, inasmuch as minor, then 15 years old, was dependent on mother to transport him to, and enroll him in, the program; and that mother believed at the conclusion of the disposition hearing that the court gave the probation department discretion in determining where minor could attend school. Counsel further noted that minor had appealed the order requiring him to attend Reflections. The court set the matter for further hearing, vacated the order minor attend Reflections, and noted its top priority was to get minor back into school, which minor had not attended for about three months.
At the October 21, 2016 evidentiary hearing, mother testified that minor did not return home for two nights the week prior, without informing mother he was leaving and without telling her where he was going. When asked why mother did not call minor, she testified minor did not then have a cell phone and that, even when he did have a phone, he refused to give her the number. Mother also testified minor again locked his room and would not let anyone inside, even when he was not home, and minor did not want mother or his family to know anything about him or what he was doing. Mother also noted minor was still not enrolled in school.
Minor testified at the hearing. He stated that he was in fact at home when his mother said he was not (i.e., on October 13, 2016); that he was in his room with the door closed; that he left home that day at about 3:00 p.m. to visit his girlfriend, and returned at about 5:30 p.m. that same day; and that he was in his room for the rest of the day. When asked if he had called mother a "snitch out in the hallway [of the courthouse]," minor stated, "I don't remember."
The record shows mother was recalled as a witness and confirmed minor had called her a snitch. Mother also confirmed that minor was not allowed to leave the house without telling her where he was going.
The court found minor violated probation. The court followed the probation department's recommendation and ordered minor committed to Breaking Cycles for a period not to exceed 150 days. At the conclusion of the hearing, the court agreed that minor's assessment for Breaking Cycles could be made while minor was "out of custody."
On February 1, 2017, the probation department reported that minor had once again violated probation when he left home on January 24 without mother's permission, did not return until January 26, and then refused to disclose where he went and what he had been doing. It further reported that a fourth waiver search of minor's residence uncovered "a scale, a glass marijuana pipe, two containers with marijuana residue, and a bottle of cranberry pills in [minor's] room. [Minor] refused to provide access to this room, as there was a combination lock on his door. He refused to provide officers with the combination code and officers entered the room by force by picking the lock. [Minor] was directed to submit to a drug test, but he refused to do so. When officers asked him when he last used any type of drugs, he shrugged his shoulders and . . . did not verbally respond. Due to his failure to cooperate with law officers, leaving his court-ordered placement without permission, the drug paraphernalia in his room, and his refusal to submit to a drug test, he was arrested for probation violations. He was transported to and booked in Juvenile Hall without incident."
At the hearing in connection with the probation violation, minor admitted to being in violation of probation by refusing to drug test, but would not admit to leaving the house without mother's permission. The court thus revoked minor's probation and extended the Breaking Cycles commitment by an additional 90 days. Minor again requested the assessment be out of custody. The court denied that request.
In so doing, the court noted that mother had always had minor's back and was a strong supporter of minor; that (with apologies) mother looked tired and frustrated while appearing before the court; and that minor had a lot of work to do as everyone, including the court, needed to understand why minor engaged in such behaviors and how they could be changed. The court assured minor he eventually would be able to return living with mother, but "[i]t might not be right away." The court thus found that allowing minor to live in the home with mother was "contrary to the welfare of the minor."
On May 11, 2017, the probation department reported that minor again violated the terms of his probation. On April 7, minor submitted to a urinalysis and tested positive for alcohol and marijuana. Later that same day, minor left home without his mother's permission and did not return. As a result, the court on April 17 issued a juvenile detention order for minor. On April 30, minor briefly returned home, demanded money, and promptly left again. On May 9, minor was arrested while sleeping in a fast food restaurant.
At the probation violation hearing, minor waived his right to an evidentiary hearing and admitted he violated probation. Minor requested he be returned to mother and participate in Breaking Cycles while out of custody. The record shows the court warned minor it was considering placing minor at "Camp Barrett" and not Breaking Cycles because of minor's struggles, which included minor's failure to follow the rules of his home, his refusal to comply with curfew, and his use of drugs and alcohol.
The court ordered minor detained while assessed and extended minor's commitment to Breaking Cycles for a period not to exceed 240 days, as recommended by the probation department. The court also informed minor that after his assessment, he would be going to Reflections and if minor did well, the court would consider a "regular high school" for minor. Mother then asked the court if it was willing to reconsider sending minor to Reflections. The court refused and noted minor needed Reflections, but that it would revisit the matter at the next hearing.
In early August 2017, the probation department reported that Breaking Cycles on May 25 had recommended minor attend an 84-day drug treatment program and then transfer to Reflections. Also on May 25, minor and three other detainees were allegedly involved in a gang-related fight in the detention facility in which minor and another youth claimed they were "Crips" gang members while two other youths claimed to be members of the "Bloods" gang. On May 28, minor and another youth, again claiming to be "Crips" gang members, assaulted a youth at the detention facility who claimed allegiance to the "Bloods" gang.
As a result of the May 25 and 28 incidents, minor was transferred to Camp Barrett in early June 2017. Mother in response refused to enroll minor in Reflections. Mother informed the probation department she intended to seek a "special hearing" to advise the court of her decision not to enroll minor in Reflections because of his recent gang-related fights in the detention facility. Mother instead stated she would enroll minor in a regular high school.
The probation report noted mother was unhappy with its recommendation that minor attend Reflections. Although minor had not attended school in the community since November 2015, mother insisted that minor attend regular high school. The probation report noted probation had "been more than flexible with [minor's] educational plan and school site and provided ample opportunities for [mother] to enroll him in an alternative educational program." Mother nonetheless "remained steadfast in her stance about Reflections," claiming she had been in contact with a "Senator for the State of California to address her son's educational matter."
At the August 9 hearing, the court reminded mother that minor was a ward of the court and that as such, minor "[would] be going to reflections" and if minor did well, the court would consider another placement. Mother in response told the court, "we're going to have a problem," as she claimed minor's life already had been threatened while at Reflections. The court instructed the probation department to ensure minor's safety while he attended Reflections. The court reiterated it was amenable to placing minor in another program if minor did well at Reflections. The record shows mother then stated, "He's not going . . ." when she was interrupted by the court, which reiterated that minor would remain in his current commitment pending further review. This appeal followed.
Pursuant to Wende, supra, 25 Cal.3d 436, appointed counsel filed a brief on behalf of minor setting forth the facts of the case and requesting this court review the entire record. In addition, pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), appointed counsel set forth the following possible, but not arguable, issues to assist this court in conducting its Wende review: (1) whether this court's decision in case No. D070611 affirming the juvenile court's order of June 30, 2016 then requiring minor to participate in Reflections was "law of the case"; and (2) whether the juvenile court abused its discretion when, at the August 9, 2017 hearing, it ordered minor to attend Reflections.
On this court's own motion, minor was given 30 days to file a supplemental brief on his own behalf. Minor did not do so. We now affirm the order requiring him to participate in Reflections, as ordered by the juvenile court.
DISCUSSION
Both of minor's Anders's issues relate to the requirement he participate in Reflections. The record in the instant case shows minor filed his notice of appeal in case No. D070611 on July 5, 2016, after the juvenile court initially ordered him to participate in Reflections as a condition of probation. However, the record further shows the court at the September 13, 2016 hearing vacated that condition, only to later reimpose it at the August 9, 2017 hearing, after minor repeatedly violated the terms of his probation.
As to the first Anders issue, we note the "law of the case" doctrine, being a legal principle, is "inapplicable where the issue is a factual one and where the evidence presented at the second trial [or hearing] differs in any material respect." (See Arthur v. Davis (1981) 126 Cal.App.3d 684, 693, citing Moore v. Trott (1912) 162 Cal. 268, 272–273 & Allen v. Bryant (1909) 155 Cal. 256, 258–259.)
Moreover, when this court decided case No. D070611, it contemplated the possibility that the juvenile court could revisit the Reflections condition in the future, which is exactly what ended up happening. We thus conclude the "law of the case" doctrine is inapplicable in this appeal.
As to the second Anders issue, we note the juvenile court has broad discretion to select appropriate conditions of probation. (In re Sheena K. (2007) 40 Cal.4th 875, 889; see Welf. & Inst. Code, § 730, subd. (b) [authorizing conditions to further the ends of justice, reformation, and rehabilitation].) As summarized ante, the record shows minor repeatedly violated probation, including by leaving his court-ordered placement without permission, missing curfew, refusing to drug test, and later testing positive for marijuana and alcohol.
The record also shows that minor, at the time the court reimposed the Reflections condition, had not been enrolled in a community high school since November 2015; that before its decision to reimpose the Reflections condition, the court on more than one occasion had extended minor's commitment to Breaking Cycles after it revoked minor's probation; that after minor's assessment, Breaking Cycles recommended minor first attend an 84-day drug treatment program and then school at Reflections; that the probation department also recommended the Reflections condition, after noting probation had been "more than flexible" with respect to minor's educational and school site plan and minor had not been enrolled by mother in a regular high school; that the court found minor would benefit from the structure provided by such a program; that after mother expressed concern for minor's safety in this program, the court instructed probation to ensure minor would be safe while attending Reflections; and finally, that if minor showed progress in the program, the court would be more than willing to revisit minor's placement at a future hearing and consider placing minor in a different school.
On this record, we thus conclude the court properly exercised its broad authority in reimposing the Reflections condition as a term of minor's probation.
Finally, we have reviewed the record in accordance with Wende and not found any other reasonably arguable appellate issues for reversal on appeal. Thus, we are satisfied that minor's appointed counsel has fully complied with counsel's responsibilities and that no such arguable issues exist. (See Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The August 9, 2017 order is affirmed, including the requirement minor participate in Reflections.

BENKE, J.

WE CONCUR:




McCONNELL, P. J.





GUERRERO, J.