In re Octavio T.
Filed 8/17/07 In re Octavio T. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION THREE
In re OCTAVIO T., a Person Coming Under the Juvenile Court Law. | B194157 (Los Angeles County |
THE PEOPLE, Plaintiff and Respondent, v. OCTAVIO T., Defendant and Appellant. | Super. Ct. No. FJ38547) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Cynthia Loo, Juvenile Court Referee. Affirmed.
Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillete, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne, and Deborah J. Chuang, Deputy Attorneys General, for Plaintiff and Respondent.
_____________________
INTRODUCTION
After minor and appellant, Octavio T., was arrested for possessing a firearm, the juvenile court declared him a ward of court, removed him from his parents care, and ordered him suitably placed. On appeal, Octavio T. contends that the trial court abused its discretion in ordering a suitable placement. We disagree, and we therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
On April 30, 2006, around midnight, deputy sheriff John Lecrivain was on patrol when he saw Octavio T., who was then 13 years old,[1]talking to another man. Octavio T. ran when he saw the deputy. While he was running, Octavio T. tossed a semiautomatic gun into the gutter. After he was arrested, Octavio T. told deputies he was holding the gun for another gang member and he was patrolling the neighborhood with the gang.
II. Procedural background.
On July 3, 2006, the People filed a petition under Welfare and Institutions Code[2]section 602. The petition alleged that Octavio T., a minor, possessed a firearm, in violation of Penal Code section 12101, subdivision (a)(1).
On September 20, 2006, the juvenile court found the petition to be true and declared Octavio T. a ward of the court under section 602. The court then ordered a suitable placement, and set the maximum period of confinement at three years. The court said, It looks like he has a history of run[ing] away, and even after the court became involved he stayed out all night.[3] And there appears to be an admission of gang involvement, admission of alcohol use, and there are some significant special needs. It looks like hospitalization at one point. Very bright young man. Great deal of potential.
DISCUSSION
I. The juvenile court did not abuse its discretion by ordering Octavio T. to be suitably placed.
Octavio T.s sole contention on appeal is the juvenile court abused its discretion when it ordered him to be suitably placed. We disagree.
We review a juvenile courts determination as to the proper disposition for a minor declared to be a ward of the court under section 602 for abuse of discretion. (Cf. In re Michael D. (1987) 188 Cal.App.3d 1392, 1395 [commitment to California Youth Authority is reviewed under abuse of discretion standard]; In re Asean D. (1993)
14 Cal.App.4th 467, 473.) In conducting this review, we indulge all reasonable inferences in support of the juvenile courts findings and determination, and we will not disturb them if substantial evidence supports them. (In re Michael D., at p. 1395.) In making its determination, the juvenile court shall consider, in addition to other relevant and material evidence, the minors age, the circumstances and gravity of the minors offense, and any previous delinquent history. ( 725.5.)
To support a commitment, there must be evidence demonstrating a probable benefit to the minor and evidence supporting a determination that less restrictive alternatives would be ineffective or inappropriate. (In re Teofilio A. (1989)
210 Cal.App.3d 571, 576.) A minor shall not be taken from a parents physical
custody unless the court finds (1) that the parent is incapable of providing or has failed
or neglected to provide proper maintenance, training, and education for the minor;
(2) that the minor has been tried on probation while in custody and has failed to reform; or (3) that the minors welfare requires that custody be taken from the minors parent.
( 726, subd. (a)(1), (2), (3).)
Here, Octavio T. argues that it was an abuse of discretion to remove him from his mothers care because none of the three factors were satisfied. He points out that this was his first offense, he had no juvenile dependency record, he had excellent school attendance, reasonably good grades,[4]and that his mother had responded appropriately to getting appropriate medical care for him when he was diagnosed with paranoid schizophrenia, depression, and attention deficit disorder. Also, the probation officer said that Octavio T.s mother appeared to be supportive and responsive to her sons needs, and that he was attending therapy. The probation officer recommended that Octavio T. be declared a ward of the court and be placed on home probation.
Notwithstanding the probation officers recommendation, there was evidence that Octavio T.s mother failed or neglected to provide proper maintenance for him and that his welfare required custody to be taken from her. Specifically, Octavio T. had run away from home three times, once when he was 12, a second time just weeks before the incident at issue, and the third time after he had been arrested for the gun possession.
His relationship with his stepfather was poor, and Octavio T. said that he and his stepfather had been physical a couple of times. He had also been suspended from a middle school for hitting, and he admitted to drinking alcohol five times in the past. Although Octavio T. admitted to being a gang member and to patrolling the neighborhood with a loaded gun late at night, his mother said shed only found out about Octavio T.s involvement in the gang when he was arrested. The juvenile court found it significant that, Octavio T., a 13-year-old, was out at midnight when he was arrested.
Based on this evidence, the juvenile court said to the mother, I want to send him to a place where he gets some counseling and then you can come and participate in counseling with him. And then we will get him in the program, and he will be allowed to go home on the weekends and work his way home. I dont know what he was doing out at 12 oclock at night with a loaded gun. It disturbs me. You know about the gang stuff, and so I need to take some action that I think it probably much more severe, but the court honestly thinks that is what is necessary. Again I want to emphasize the point of this is rehabilitation and getting him home as soon as the court feels some confidence that he will go home safely. He is a good boy, and he has a great deal of potential. And we would like to help him. You being out at 12 at night with a loaded gun that is bad. He was 13 at the time. In so stating, the trial court clearly explained the basis for its conclusion that Octavio T.s welfare required him to be suitably placed outside his home.
Nor was the juvenile court required to try a less restrictive alternative before removing him. (In re Teofilio, supra, 210 Cal.App.3d at p. 577.) In fact, the record clearly shows that the juvenile court considered the alternative of keeping Octavio T. at home, but that it rejected that option given, among other things, the gravity of the incident, his age, and the failure of his parents to supervise him.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
KLEIN, P. J.
KITCHING, J.
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[1] Octavio T. was born in July 1992.
[2] All further undesignated references are to the Welfare and Institutions Code.
[3] It appears that Octavio T.s mother told the court that even after he was arrested for this incident, he stayed out all night.
[4] For the spring semester Octavio received As in two English classes and in history, a C in health, and Fs in physical education and math.
