In re Jose V.

Filed 9/27/06 In re Jose V. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Jose V. (born June 17, 1990) appeals from a dispositional order of the juvenile court removing him from the home of his parents and referring him for an out-of-home placement. His attorney has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting this court to make an independent review of the record. We have done so, find no issue warranting further briefing or review, and shall affirm.

On October 25, 2005, a petition was filed pursuant to Welfare and Institutions Code section 602 charging Jose with willfully discharging a firearm in a grossly negligent manner (Pen. Code, § 246.3 - count 1), attempted murder (Pen. Code, § 32 - count 2), possession of a revolver capable of being concealed (Pen. Code, § 12101, subd. (a)(1) - count 3), and possession of live ammunition (Pen. Code, § 12101, subd. (b)(1) - count 4). On November 14 Jose admitted count three, the other charges were dismissed, and the court set the maximum period of confinement at three years.

On November 28, after a dispositional hearing, the court entered an order placing Jose out of home, but referred him to the probation department’s “Family Preservation Unit” (FPU) for evaluation of placement with the FPU, which would have returned the minor to his home with close supervision by the probation department. The probation department submitted a report indicating that Jose was not appropriate for placement with the FPU “due to the nature of the offense, known gang membership, and pending referral. It appears that the minor has the potential to be victimized by rival gang members, and for his own protection should be removed from the community. The minor is also pending expulsion from his local school.” At a hearing on December 19 the court continued the matter to January 3, 2006, so that the probation officer and supervisor of the FPU could explain why the minor was deemed inappropriate for placement with that unit. On January 3, the supervisor explained the process by which she had determined that Jose is not suitable for placement, and the court expressed its “disappointment” that this evaluation had been made without interviewing Jose’s parents and questioned whether the court had the authority to order placement contrary to the recommendation of the probation department.[1] However, at the conclusion of the hearing the court explained, “in considering the initial dispositional report and its recommendations, considering the gravity of the offense, I am unable to bring myself to put the minor on probation, even the intensive kind of probation that’s described to me and urged by his lawyer, and I believe that [an out-of-home placement] is the only option that I have in front of me that is appropriate to his rehabilitation, to the safety of the community, and that’s the one I’m going to make.” The court made findings required by Welfare and Institutions Code section 726, subdivision (a), declared Jose a ward of the court, ordered out-of-home placement and continued the matter for placement review on January 17, 2006. Jose’s attorney objected: “I do not think there are reasonable efforts made here by this probation department to avoid removal from the home by their persistent refusal in assessing him for FPU.”

Prior to the January 17 hearing the court received an additional report from the probation department reflecting the results of a personal home visit that had been made with Jose’s parents, and reaffirming the department’s conclusion that the FPU could not “provide the level of services this young man needs to rehabilitate.”[2] After further extended discussion with counsel, the court concluded: “This is a hard call to make and I’m reluctant to make an order that removes Jose from his home for various reasons that I think have been fully explored in the record in this case. And that is why I did make the . . . Family Preservation Unit referral. I am persuaded, however, that is not consistent with Jose’s rehabilitation, his own safety or the safety of the community to follow through with that referral. Accordingly and based on the discussion we’ve had this afternoon and the placement review report I received and have referred to, the referral is withdrawn and the [out-of-home placement] order previously made will continue in effect, with Jose referred to the placement unit for placement outside the home of his parents at a location that is consistent with his rehabilitative needs.” Subsequently it was reported to the court that Jose was placed at Karis House in Visalia.

The facts concerning Jose’s offense are largely undisputed and were confirmed by Jose on several occasions. Jose was in the back seat of a car from which three shots were fired in Union City at a victim who was seriously injured. Jose was not the person who fired the shots, but he was handed the gun as the car fled and he subsequently fired a shot in the air. The incident was gang-related, and it appeared that the same car full of gang members was involved in another shooting incident later that night in Milpitas. When arrested, Jose was cooperative and, it developed, had not previously been apprehended for serious misconduct. However, after the present petition was filed, a second petition charging Jose with earlier possession of an illegal switch-blade knife was filed but later dismissed. Jose admitted that he had been a member of the Sureno gang for approximately one year and bore a gang-related tattoo for two or three months. He lived with his two parents and several siblings. His parents considered Jose to be well-behaved and told the probation officer they were “dumbfounded” by his involvement in the shooting incident and were also unaware of truancy and disciplinary problems that Jose had been having at school.

The record reveals that Jose received the benefit of exceptionally conscientious efforts by the juvenile court judge to ensure that removal from his home was necessary and in his best interests. Despite the best intentions of Jose’s parents to see that he disassociates himself from gang activities, as they assured the court he intends to do, there was substantial evidence that the minor likely would be unable to do so without intensive intervention that could not be provided within his home even with supervision by the FPU. Among other concerns was fear for the minor’s own safety as the result of retaliation by the gang to which the victim of the shooting belonged, or by his own gang as the result of any attempt to withdraw. Although the court initially questioned the basis for the conclusions of the probation department, it was ultimately convinced that the department’s recommendation was sound and that there was no better option for the minor’s own welfare. The juvenile court’s painstaking evaluation cannot be faulted.

Jose was at all times well represented by counsel. We find in the record no issues that warrant further briefing.

The judgment is affirmed.

_________________________

Pollak, J.

We concur:

_________________________

McGuiness, P. J.

_________________________

Parrilli, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line Lawyers.

[1] The court subsequently concluded that it had such authority.

[2] According to this report, “[p]lacement in a program that would provide appropriate gang intervention, intensive counseling and education to get out of gang is primary in this matter. Participation in a live-in program can allow the minor to benefit from an immersion of such, and assist the parents by familiarizing themselves with gangs, and how to better deal with their son.”