Opinion
A124075.
7-14-2009
In re B.K., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. B.K., Defendant and Appellant.
Not to be Published in Official Reports
Appellant, B.K., appeals from the Contra Costa County Juvenile Courts disposition of January 29, 2009 revoking appellants probation. Appellants appointed counsel has identified no issues on appeal and asks us to conduct an independent review of the record in accordance with People v. Wende (1979) 25 Cal.3d 436. We affirm the juvenile courts disposition.
BACKGROUND
B. is an 18-year-old male from Danville, California. Prior to the present case, on October 19, 2007, the Contra Costa County Superior Court adjudged B. a ward of the court with no termination date pursuant to Welfare and Institutions Code section 602. The court found B. had violated the terms of his probation that resulted from a previous charge of receiving stolen property (Pen. Code, § 469, subd. (a)) and disturbing the peace on school grounds (§ 415.5, subd. (a)(2)).
Also prior to the present case, on September 10, 2008, B. appeared at a dispositional hearing after the court sustained charges of probation violations for public intoxication and curfew violation. The court ordered B. be placed on the Juvenile Electronic Monitoring system (JEM) for 45 days, with credit for seven days he had already served in juvenile hall and 23 days already served on JEM. Additionally, the court ordered B. to provide school progress reports to his probation officer once a week, and participate in family and individual counseling, and a substance abuse assessment.
The instant case began on November 26, 2008, when the Contra Costa County probation department filed a "Notice of Probation Violation Hearing" regarding alleged probation violations for B.s failure to attend school regularly; failure to report to probation three times in November; failure to obey school rules (leading to two suspensions in November); and his failure to provide school progress reports. A subsequent probation report stated that school records showed B. had 13 days of total absences, 23 partial absences, and cut 42 classes. B. initially denied all of the allegations. However, at the contested probation violation hearing on January 15, 2009, B. admitted the first and second allegations. The court dismissed the other two without prejudice.
At the January 15, 2009 dispositional hearing, the court considered a letter from B.s doctor, Michael Levin, M.D., which indicated B. suffered from Attention Deficit Hyperactivity Disorder (ADHD), anxiety disorder, and sleep disorder. B.s counsel suggested that the court order B.s probation officer and Levin to meet and confer, prior to the final disposition, regarding the best plan for B. to succeed with school attendance, grades, and behavior. The People requested that B. be placed on JEM in the meantime because this was not his first sustained probation violation. B.s parents objected to the Peoples request, stating that JEM "puts the entire family in basically a lock-down situation" and that it creates more anxiety in B. B.s father also indicated that his other children have lost friends and been teased because of B.s ankle monitor. The court ordered B. to appear at the next hearing set for January 29, 2009, and that his probation officer and Levin first meet and confer regarding an appropriate plan for B.
At the January 29, 2009 hearing, B.s parents stated that B. had, for several years prior, suffered with difficulties sleeping and with school attendance and that they had been working with B.s school and doctor to resolve the problem. Despite taking several medications, B. had difficulties waking up in the morning due to his inability to fall asleep at night and often did not even recall his parents attempts to wake him. His mother was primarily concerned that B. would "shut down" with the imposition of the ankle monitor, and that it would frustrate any progress they may have made. The court also looked at a letter from Levin that requested the court postpone a disposition until B. underwent a sleep study to rule out sleep apnea or other sleep related disorders.
In response, the People indicated B. had "abysmal" grades and was not responsive to the courts prior JEM sanctions. B.s grades as of January 23, 2009, indicated he was receiving three Fs, one D, one Incomplete, and one B, in English, biology, United States history, tutorial, geometry, and basketball, respectively. According to a probation report of January 29, 2009, B. failed to follow through with switching his first period English class to the sixth period even though it would assist in ensuring he did not miss any core classes because of his disordered sleep. Bearing in mind B.s history on JEM, the People requested B. be placed in juvenile hall for four consecutive weekends rather than be placed on JEM again.
Ultimately, the court ordered B. detained in juvenile hall for 60 days with a seven-day credit for the time he already spent there. Counselors were to report on his ability to wake up in the morning and attend school at juvenile hall. B. was to submit school progress reports once a week and upon release was to be placed on JEM for 120 days. The court authorized temporary releases from juvenile hall to allow B. to attend medical appointments, particularly a sleep consultation with Levin and meetings with a psychologist twice a month. B.s counsel objected that the dispositional order was punitive, went against Levins advice, and that JEM had not worked for B. before.
At an interim review on February 11, 2009, the court considered a letter from B., in which he stated that he had matured a lot since being in juvenile hall, and that he could and would succeed in school. The court also considered a report of a sleep medicine consultation, a letter from B.s school psychologist, and two letters from Levin. The sleep medicine consultation report indicated that B. suffered from a "significant sleep disorder" that affected his functioning. The school psychologist wrote "that once B. is able to put this ongoing legal probation situation behind him, and find appropriate treatment for his sleep difficulties and anxiety, he will find a path toward success more attainable." Levins letters requested the court consider an early release so that B. could undergo a more thorough evaluation. At the time of the hearing, B. was scheduled for an overnight sleep study to be conducted the following evening.
B.s counsel had additional concerns that the JEM monitor might interfere with the electronic equipment used for the study, and that although the record showed that B. was able to wake up in the morning, he was showing signs of sleep deprivation. The exact signs of deprivation were not indicated. Additionally, the course work B. received in juvenile hall was too elementary for his education level.
The court, in considering the documents and circumstances, admonished B. and released him on JEM for 120 days. The court allowed him to be released for overnight sleep studies and to assist his father in coaching youth baseball. A status review was set for April 2, 2009.
DISCUSSION
Our independent review of the record reveals no arguable issues.
DISPOSITION
Accordingly, the judgment is affirmed.
We concur:
Kline, P.J.
Richman, J. --------------- Notes: All statutory references are to the Penal Code unless otherwise indicated.