Filed 10/17/17 In re E.G. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Winston S. Keh, Judge. Affirmed.

Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.

I

INTRODUCTION

Defendant and appellant E.G. (minor) was a documented gang member and runaway. He behaved violently, smoked marijuana, drank alcohol, and refused to follow his parents’ rules. After he robbed a youth and admitted to committing grand theft of a person, minor was placed on probation in the custody of his parents. However, following minor’s continued out-of-control behavior, the juvenile court ordered minor placed outside of his home. On appeal, minor argues the juvenile court abused its discretion when it ordered foster care placement because minor did not have sufficient time with the initial home placement and less restrictive means of rehabilitation were not implemented before out-of-home placement. We find no abuse, and affirm the judgment.

II

FACTUAL AND PROCEDURAL BACKGROUND

On August 24, 2016, minor and six coparticipants approached a victim, surrounded him, and told him that he was in Latin Kings territory. One of the coparticipants ordered the victim to give him all of his personal property. The victim complied out of fear, removed his gold chain from around his neck and handed it to the coparticipant. The coparticipant then asked the victim for his cell phone. While the victim was removing his cell phone, minor and the other coparticipants forcibly removed his wallet and a speaker from the pocket of his pants. The victim then left the area and called the police. When police officers arrived at the scene, the perpetrators ran, but were eventually apprehended. The victim identified all of the suspects in an infield lineup. During a search, minor had the victim’s identification card in his pocket. Minor claimed that he ran from the police because he was a runaway.

On August 26, 2016, a Welfare and Institutions Code[1] section 602 petition was filed charging minor with robbery (Pen. Code, § 211).

On September 13, 2016, the People amended the petition to add grand theft of a person (Pen. Code, § 487, subd. (c)). Minor thereafter admitted to committing grand theft of a person. In return, the robbery charge was dismissed.

Minor was interviewed on September 15, 2016, by the probation department. He reported that he ran away from home prior to his arrest, because he did not want to follow his parents’ rules and had been absent from his parents’ home for about a month. Minor claimed that he had found the victim’s identification card as he was walking along a trail and put it in his pocket. At the time, minor was 15 years old and in the 10th grade. He was affiliated with the Another Latin Crew (ALC) gang. He began smoking marijuana when he was in the seventh grade, and last smoked marijuana on the day of his arrest. He began using alcohol when he was 12 years old, and last consumed alcohol on the day of his arrest. Minor’s grade point average was a 1.00. Minor had disruptions and defiance incidents at school. In addition, he had been suspended for five days for assault and three days for harassment.

Minor’s mother stated that she did not understand why minor stole from the victim when he had everything at home. She reported minor ran away three times in the past, being gone from one month to one day. Minor told his parents that he runs away because they did not understand him. Minor’s mother did not feel that she had control over minor and that minor did what he pleased. Minor had violated his parents’ curfew and would be gone all night at times. Minor’s mother did not know who his friends were or their parents. The minor’s mother had been visiting minor while in juvenile hall, and noted that minor’s attitude had appeared to change. Both minor and his mother wanted minor home. The probation officer recommended minor be placed on formal probation on various terms and conditions in the custody of his parents.

On September 27, 2016, the juvenile court declared minor a ward of the court and placed him on formal probation on various terms and conditions in the custody of his parents.

Minor, however, failed to take his grant of probation seriously. Minor’s mother reported that minor was disrespectful, snuck out of the house in the middle of the night, came home past curfew on most nights, and sometimes did not come home at all. In addition, gang tagging and gang-related clothing had been found in minor’s room during home compliance checks. A bottle of vodka also had been found in minor’s room, and minor had admitted to using marijuana during probation visits. Furthermore, on October 13, 2016, minor was suspended from school for fighting. On October 30, 2016, minor was cited and released by police for assault with a deadly weapon along with two other youths who were also documented gang members and on probation. In that incident, minor threw a rock at a homeless woman, striking her in the leg. On November 10, 2016, minor was arrested for making criminal threats after stating he was going to bring a gun to school and shoot another student. The case was rejected by the district attorney’s office. However, a search of minor’s backpack revealed gun oil and gun powder residue on the backpack. Minor’s mother exclaimed that minor’s behavior was out of control and that she was not sure if he would be welcomed back to live with her if minor did not change his behavior.

On November 18, 2016, a section 777 petition to revoke minor’s probation was filed. The petition alleged minor had violated his probation by violating curfew, using marijuana, associating with gang members, and possessing graffiti paraphernalia.

On November 21, 2016, minor admitted to violating curfew and the remaining allegations were dismissed. The juvenile court continued minor as a ward of the court and detained him in juvenile hall pending a dispositional hearing.

Minor admitted that he often failed to comply with curfew and had difficulty complying with his mother’s rules. His mother’s attempts to discipline him were ineffective and he would yell at her. He admitted that he regularly smoked marijuana and drank alcoholic beverages. Minor also acknowledged that he knew that he should not have been associating with gang members on October 30, 2016. Minor’s mother again reported that minor was out of control. Minor would try to convince her not to tell the probation officer the truth about his behavior. When she reported his behavior truthfully, minor would call his mother a stupid snitch. Minor’s father was a truck driver and was not home often. Further, he had high blood pressure and therefore when he was home, he did not discipline minor. Minor’s mother also reported that her car had been vandalized. She suspected that minor’s girlfriend’s family was responsible because they had complained that he was “overly aggressive” with their daughter. Minor’s mother agreed that placement was a good option, because minor needed help with discipline. Minor’s mother intended to sell her house after the car vandalism experience and to get away from minor’s negative peer influences. She was even considering moving to Nicaragua. Overall, she felt that while minor was in custody, he was motivated to do better. But once released, she believed minor would lapse into his old ways.

The probation officer concluded that without intervention, minor would continue to reoffend and pose a safety threat to himself and the community. The probation officer recommended placement, with parenting classes and reunification following placement, due to minor’s out-of-control behavior and his parents’ inability to control him. The probation officer noted minor’s threats at school and fight at school, minor’s throwing a rock at a homeless woman, and minor’s continued involvement with the ALC gang, which had been suspected of being involved in multiple shootings in the Fontana area. The probation officer had considered allowing minor to live with an aunt, the only relative that would be a viable option, in Texas, however, the appropriateness of the home had not been determined at that time.

A contested dispositional hearing was held on December 19, 2016. At that time, the probation officer testified and provided similar information to that of the probation report, adding that placement offered many services to address minor’s needs such as educational services, anger management classes, substance abuse services, family counseling, gang intervention, victim awareness, and emancipation skills. The probation officer also noted that minor’s gang behavior had persisted while in juvenile hall and that minor’s mother felt fearful of minor when she attempted to discipline him. The probation officer acknowledged that minor had completed a victim awareness class, the only assigned task given to minor, and that all of the services noted could also be provided to minor while minor resided at home. Minor’s mother testified that she wanted minor placed at home with a house arrest bracelet, noting that she planned to home school him and that minor was willing to follow the rules of house arrest.

Following argument, the juvenile court continued minor as a ward of the court and ordered him into foster care placement under section 730. The court explained that minor’s mother had just recently informed the probation officer that minor was out of control and she could not control him. The court expressed concern that minor’s mother may have been intimidated into testifying she wanted minor home and that minor would continue to reside in the area where gang members reside. The court concluded that releasing minor to his home was contrary to his welfare and that of the community.

On December 22, 2016, minor filed a timely notice of appeal.

III

DISCUSSION

Minor argues that the juvenile court abused its discretion in placing minor in foster care placement without considering less restrictive alternatives. More specifically, he argues the evidence is insufficient to support the court’s findings that placement would benefit minor and less restrictive alternatives would be ineffective or inappropriate. We disagree.

“ ‘We review a juvenile court’s commitment decision for abuse of discretion, indulging all reasonable inferences to support its decision.’ [Citation.] ‘ “[D]iscretion is abused whenever the court exceeds the bounds of all reason, all of the circumstances being considered.” ’ [Citations.] We will not disturb the juvenile court’s findings when there is substantial evidence to support them. [Citation.] ‘ “In determining whether there was substantial evidence to support the commitment, we must examine the record presented at the disposition hearing in light of the purposes of the Juvenile Court Law.” ’ [Citation.]” (In re Oscar A. (2013) 217 Cal.App.4th 750, 755-756 (Oscar A.).) “A trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence.” (People v. Cluff (2001) 87 Cal.App.4th 991, 998.)

“The purpose of the juvenile court law is ‘to provide for the protection and safety of the public and each minor under the jurisdiction of the juvenile court and to preserve and strengthen the minor’s family ties whenever possible, removing the minor from the custody of his or her parents only when necessary for his or her welfare or for the safety and protection of the public. If removal of a minor is determined by the juvenile court to be necessary, reunification of the minor with his or her family shall be a primary objective. If the minor is removed from his or her own family, it is the purpose of this chapter to secure for the minor custody, care, and discipline as nearly as possible equivalent to that which should have been given by his or her parents. . . .’ (§ 202, subd. (a).) [¶] Minors under the juvenile court’s jurisdiction must receive the care, treatment, and guidance consistent with their best interest and the best interest of the public. (§ 202, subd. (b).) Additionally, minors who have committed crimes must receive the care, treatment, and guidance that holds them accountable for their behavior, is appropriate for their circumstances, and conforms with the interest of public safety and protection. (Ibid.) This guidance may include punishment that is consistent with the rehabilitative objectives. (Ibid.)” (Oscar A., supra, 217 Cal.App.4th at p. 756.)

Section 726, subdivision (a), provides that “no ward or dependent child shall be taken from the physical custody of a parent or guardian, unless upon the hearing the court finds one of the following facts: [¶] (1) That the parent or guardian 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. [¶] (3) That the welfare of the minor requires that custody be taken from the minor’s parent or guardian.”

The statutory scheme guiding the juvenile court in its treatment of juvenile offenders “ ‘ “ ‘contemplates a progressively restrictive and punitive series of disposition orders in cases such as that now before us—namely, home placement under supervision, foster home placement, placement in a local treatment facility and, as a last resort, Youth Authority placement.’ ” ’ ” (In re Teofilio A. (1989) 210 Cal.App.3d 571, 577.) However, “less restrictive placements do not actually have to have been tried.” (Ibid.) “f there is evidence in the record to show a consideration of less restrictive placements was before the court, the fact the judge does not state on the record his consideration of those alternatives and reasons for rejecting them will not result in a reversal.” ([i]Ibid.) Reversal is unwarranted if there is “some evidence to support the judge’s implied determination that he sub silentio considered and rejected reasonable alternative dispositions.” (Ibid.)

Contrary to minor’s assertion, the trial court’s placement decision here did not constitute an abuse of discretion. The record shows that the juvenile court considered less restrictive alternatives, namely house arrest, before ordering minor placed in out-of-home foster care placement. Despite the short duration of minor’s initial probationary period, he quickly managed to establish that he was completely undaunted by probation. Although minor argues that he should be afforded the less restrictive option of being placed with his mother, his behavior while living with his mother, both before and after being placed on probation, did not show any conduct that would merit this less restrictive option. Minor persisted in his out of control behavior by refusing to follow his mother’s rules and the terms and conditions of his probation. He continued to violate curfew, sneak out of his home, associate with gang paraphernalia and gang members, abuse drugs and alcohol, possess firearms, and commit violent acts. In fact, minor admitted that he often failed to comply with curfew and had difficulty complying with his mother’s rules. He also admitted to regularly smoking marijuana and drinking alcoholic beverages.

Furthermore, the record is replete with evidence that minor’s mother was unable to properly supervise minor if the juvenile court allowed minor to remain in her custody. In fact, minor’s mother acknowledged that she was unable to control minor, that minor continued to fail to follow her rules, and that minor’s mother felt fearful of minor. Minor has been unable to follow his mother’s directives or the terms of his probation since being placed on probation. Of further concern was minor’s drug use, his drinking, minor’s association with gang members, and minor’s mother’s inability to control minor’s drug use, drinking, and association with gang members. Minor’s probation officer believed that placement would benefit minor because minor could receive the needed counseling, gang, anger management, educational, and substance abuse services. Although the probation officer acknowledged that some of these services could be achieved while on home supervision, the probation officer nonetheless concluded that without intervention, minor would continue to reoffend and pose a safety threat to himself and the community. The juvenile court’s order was not an abuse of discretion as the record demonstrates both a probable benefit from out-of-home placement and the inappropriateness and ineffectiveness of placing minor with his mother.

Minor cites to the fact that he was only ordered to complete one assigned task, a victim awareness class, while on probation and that he completed the task. Minor also argues that some of the services available to him in placement would also be available if he were placed with his mother, such as substance abuse services, counseling, and victim awareness. However, minor ignores the substantial evidence that supported an out-of-home placement, including his association with the neighborhood gang, his complete lack of parental control at home, his continued defiant behavior, and his drug and alcohol use. As noted, minor’s mother repeatedly reported that minor was out of control and would not obey her rules. In addition, minor’s father would not discipline him.

Given the foregoing evidence, the juvenile court reasonably concluded that minor required out-of-home foster care placement. Furthermore, the juvenile court considered home supervision on house arrest, but implicitly determined that such placement would be inappropriate and/or ineffective. Based on this record, substantial evidence supports the juvenile court’s determination that it considered and rejected placement at home.

IV

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

MILLER

Acting P. J.

SLOUGH

J.