Opinion
A120783
10-30-2008
In re D.H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.H., Defendant and Appellant.
Not to be Published
D.H. appeals from orders establishing wardship under Welfare and Institutions Code section 602 and committing him to the county juvenile rehabilitative center. He contends there was no factual basis for his admission of inflicting serious bodily injury and the court abused its discretion in ordering out-of-home placement. We affirm.
STATEMENT OF THE CASE
On November 27, 2007, a juvenile wardship petition (Welf. & Inst. Code, § 602) was filed alleging that appellant, then 17 years old, committed three felony offenses: assault with a deadly weapon and with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1) ), during which appellant personally inflicted great bodily injury upon Julius Dacasin on November 3, 2007 (§ 12022.7, subd. (a)); residential burglary of the home of Theresa Lozano on November 3, 2007 (§§ 459, 460, subd. (a)); and assault with force likely to produce great bodily injury upon David Garcia on September 21, 2007 (§ 245, subd. (a)(1).)
Further statutory references will be to the Penal Code unless otherwise specified.
On January 16, 2008, the first two counts were dismissed; the prosecutor told the court that the witness who had implicated appellant in these offenses said he had lied about appellants involvement. Appellant admitted the third count, amended to allege felony battery resulting in serious bodily injury (§ 243, subd. (d)). At the hearing, the court confirmed that count 3 concerned the "YouTube fight" and the district attorney reported that the victim sustained "some bruising around his eye and some other sort of swelling." Appellant was released on home supervision pending the dispositional hearing.
On February 6, 2008, the court, following the recommendation of the probation department, adjudged appellant a ward of the court and committed him to the Orrin Allen Youth Rehabilitation Facility (ranch) for a period not to exceed nine months, with a 90-day conditional release parole period.
Appellant filed a timely notice of appeal on February 15, 2008.
STATEMENT OF FACTS
As set forth in the probation report, on November 13, 2007, during a meeting concerning the stabbing of a student at a party, a police officer was informed that the fight was a result of a video that was posted on YouTube. Searching the YouTube website, the officer found a clip called "Dante vs. Concord High faggot" that had been posted about a month before. The officer decided to watch the clip because appellant was the suspect in the stabbing. He immediately recognized appellant as the primary aggressor in the video: Appellant punched the victim in the face approximately 12 times, grabbed him and threw him to the ground as he tried to move away, then got on top of the victim and punched him approximately seven more times in the head. Meanwhile, another participant walked over, reached into the victims pocket and dragged him about a foot along the ground. Appellant then stood up, the victim grabbed his leg, and the other participant kicked the victim once in the back or buttocks. At this point, an adult walked over and yelled at the group to stop.
Appellant and his father were interviewed about the incident at the probation department on January 24, 2008. Appellant said the victim, who had been drinking alcohol, waved a team jersey in the air, then threw it on the floor and spit on it. Appellant, already upset with the victim, felt this was very disrespectful. The victim then challenged appellant to a fight. Appellant said the victim was going to "`kick his ass "and he felt he had to protect himself. Appellant felt that he would have handled the situation differently if he had been with a different group of friends and thought he should have ignored the victims antagonizing remarks and walked away.
Appellants parents were never married. Appellant and his father, who was self-employed with an automotive detailing service, lived with appellants aunt and her family. According to the probation report, appellant gets along very well with his father and describes their relationship as "best friends." He reported not being as close to his mother, but said he sees her every weekend and has a positive relationship with her. Appellant denied having an anger management problem or any gang affiliation.
Appellants father told the probation officer that he noticed appellants hands were swollen on the day of the incident and restricted appellant from going out for a few weeks. He was frustrated with the court system, felt appellant was being unfairly punished for an incident in September and the time appellant had spent in juvenile hall and changes appellant had made in his life should be sufficient, and felt appellant should not have "taken the `plea that he took." He did not think probation would benefit appellant but rather would "hinder" and "not be a constructive experience" for him. He described appellant as a "beautiful person" and said he had no problems with him at home and rarely had to discipline him.
Appellant had been in special education since first grade and had a specific learning disability in auditory processing. A psycho-educational assessment conducted in December 2005 concluded that appellant was "at `risk for becoming temporarily incapacitated and for appearing agitated and distraught " and that appellant had difficulty with reality testing. The report stated that appellant "misperceives events, and forms mistaken impressions of people and the significance of their actions, resulting in poor judgment in which he fails to anticipate the consequences of his actions and misconstrues what constitutes appropriate behavior." Appellant was described as having average to low average cognitive ability and becoming "easily confused when words that he did not understand were used." He was found to have poor interpersonal skills and to become "easily overwhelmed by what he considers to be threatening or hostile behaviors."
Appellants school discipline record reflected an incident on September 17, 2007, in which appellant left the principals office upset and broke the window in the main office by punching it after violently throwing it open. He had also received detention for being defiant. Appellant received numerous failing grades in his freshman and sophomore years, then did better junior year, receiving two Ds and Cs in the other classes. He needed 91 credits to graduate and was awaiting credits from a college class he had taken as well as from Juvenile Hall and another high school.
Appellant had previously been adjudged a ward of the court in January 2006, and ordered to obey a curfew and other conditions. Wardship was vacated and probation terminated in July 2006. In the incident underlying this wardship, appellant and another person approached the victim and appellant pulled the victims shirt over his head, pushed him to the ground, then punched him some five to eight times in the head and shoulders. A school staff member witnessed the attack, and appellant and his companion gave false names to the police when contacted. A Welfare and Institutions Code section 602 petition was filed against appellant in April 2005, alleging one count of battery and one count of giving false information to a police officer. An amended petition added a third count of battery on school property, based on the school vice principal observing appellant "stomping on the head of a student that had been knocked to the ground." The first count was dismissed with restitution reserved, the second count was sustained, and the third count was sustained as a misdemeanor battery.
Appellant had been referred to the probation department in March 2005 for fare evasion at BART. This matter was closed at intake. He was also referred to the probation department as a suspect in the November 2007 stabbing referred to above. This led to the filing of the first two counts in the present Welfare and Institutions Code section 602 petition, which were dismissed on January 16, 2008, as described above.
The probation report recommended that appellant be committed to the ranch because "[h]e presents a risk to community safety and to himself when he feels that he is being challenged or disrespected." The report stated that appellant had continued to commit law violations involving a victim despite the courts previous attempts to deter his behavior and appellant needed to be held accountable and to receive "intensive rehabilitative services."
DISCUSSION
I.
Appellant contends the trial court abused its discretion in accepting his admission of inflicting serious bodily injury because no factual basis was established for this admission.
Preliminarily, respondent contends appellant waived his challenge to the trial courts findings because his attorney expressly waived his appellate rights with regard to the jurisdictional findings. Appellant disputes this point, arguing that a personal waiver would be required. We decline to decide this issue, but rather address the merits of appellants contention.
Before accepting a minors admission in a case under Welfare and Institutions Code section 602, the court must, among other things, make a finding on the record that there is a factual basis for the admission. (Cal. Rules of Court, rule 5.778(f)(6); In re Michael B. (1980) 28 Cal.3d 548, 556.) This rule is analogous to the requirement that the court in a criminal proceeding must determine that there is a factual basis for a plea bargain. (§ 1192.5; see In re Jermaine B. (1999) 69 Cal.App.4th 634, 640.) It has been explained that the purpose of the section 1192.5 requirement is "to protect against the situation where the defendant, although he realizes what he has done, is not sufficiently skilled in law to recognize that his acts do not constitute the offense with which he is charged. (1 Wright, Federal Practice and Procedure (1969) § 174, pp. 376-377.) Inquiry into the factual basis for the plea ensures that the defendant actually committed a crime at least as serious as the one to which he is willing to plead." (People v. Watts (1977) 67 Cal.App.3d 173, 178 (Watts).)
"The factual basis required by section 1192.5 does not require more than establishing a prima facie factual basis for the charges. (People v. Calderon (1991) 232 Cal.App.3d 930, 935.)" (People v. Holmes (2004) 32 Cal.4th 432, 441, fn. omitted (Holmes).) The court is not required to "obtain an element-by-element factual basis" (People v. Marlin (2004) 124 Cal.App.4th 559, 572), to "interrogate the defendant about possible defenses to the charged crime" or to be "convinced of [the] defendants guilt" (Holmes, supra, 32 Cal.4th at p. 441). A summary recitation that "`[t]heres a factual basis, " however, absent any other attempt by the trial court to develop a factual basis, is not adequate under the Watts standard. (People v. Tigner (1982) 133 Cal.App.3d 430, 435.) The trial court "must garner information regarding the factual basis either from the defendant or defense counsel. If the trial court examines the defendant regarding the factual basis for the plea, the court may have the defendant describe the conduct that gave rise to the charge (Watts, supra, 67 Cal.App.3d at p. 179), or may question the defendant regarding the detailed factual basis described in the complaint or written plea agreement. ([United States v.] Montoya-Camacho [(5th Cir. 1981)] 644 F.2d [480,] 487.) If the trial court inquires of defense counsel regarding the factual basis, counsel may stipulate to a particular document that provides an adequate factual basis, such as a complaint, police report, preliminary hearing transcript, probation report, grand jury transcript, or written plea agreement. ([People v. ] Wilkerson [(1972)] 6 Cal.App.4th [1571,] 1576-1579.)" (Holmes, supra, 32 Cal.4th at p. 442.)
The trial court "possesses wide discretion in determining whether a sufficient factual basis exists for a guilty plea. The trial courts acceptance of the guilty plea, after pursuing an inquiry to satisfy itself that there is a factual basis for the plea, will be reversed only for abuse of discretion. (Watts, supra, 67 Cal.App.3d at p. 180.) A finding of error under this standard will qualify as harmless where the contents of the record support a finding of a factual basis for the conditional plea. ([People v.] Mickens [(1995)] 38 Cal.App.4th [1557,] 1564; Watts, supra, 67 Cal.App.3d at p. 182.)" (Holmes, supra, 32 Cal.4th at p. 443.)
In the present case, before accepting appellants admission, the trial court asked the district attorney what happened to the victim in the fight documented in the YouTube video. She replied, "[h]e sustained—from what he described to me—some bruising around his eye and some other sort of swelling." The district attorney told the court that the victim was in the waiting room and available to describe his injuries, but the court said it would take the prosecutors word. The court asked defense counsel if he "waive[d] appeal rights for jurisdiction only," and counsel replied affirmatively. The court then advised appellant of his trial rights and the consequences of his admission, and defense counsel stipulated that there was a factual basis for the plea, which the prosecutor indicated was for "police department—`07-25773. " Appellants father, referring to the psychological assessment of appellant by the school district, expressed concern that appellant did not understand what the court was telling him. In response to the courts question, defense counsel stated he did not think there was a problem but he knew appellants father did. The court then asked appellant a number of questions about his understanding of the rights he was giving up and the consequences of his admission, at various points having appellant explain what he thought the court meant. The prosecutor read the allegation—that on September 21, 2007, appellant "did willfully and unlawfully commit a battery against the person, and serious bodily injury was inflicted on the person of David Garcia"—and appellant stated, "I admit." The court made the requisite findings for accepting appellants admission, including that "theres a factual basis for the admission—you gave the police report number."
As just indicated, the only description on the record of the victims injuries was the prosecutors representation that he sustained "some bruising around his eye and some other sort of swelling." The only reference to documentation was the prosecutors reference to police report "`07-25773." This report describes the circumstances of appellants arrest but does not describe the circumstances of the offense.
Appellant argues that the police report cited was unrelated to the battery count appellant admitted and pertained entirely to the November 3 stabbing charges that were dismissed. In fact, the report lists the offense date as September 21, 2007, the date of the fight depicted on YouTube.
Respondent argues that appellants admission alone was sufficient to establish the required factual basis, citing Holmes, supra, 32 Cal.4th 432. Holmes noted that Watts, supra, 67 Cal.App.3d 173, the seminal case on the issue, found that "statements and admissions" by a defendant, defense counsel and the prosecutor could supply the factual basis, and that "Watts did not require the trial court to question the defendant personally about each element in the charged offense." (Holmes, at p. 440, citing Watts, at p. 180.) It is clear from the discussion in both Holmes and Watts, however, that the "statements" and "admissions" the courts were referring to were statements or admissions of fact, not conclusory statements that the charged offense had been committed. Here, appellants admission that he committed a battery with serious bodily injury, without further explication or reference to documentation of the nature of the injury, gave no information about the factual basis whatsoever.
Watts, supra, 67 Cal.App.3d at pages 179-180, stated: "In order to effect the purpose underlying the factual basis requirement of Penal Code section 1192.5, the trial judge should develop the factual basis on the record, for example, by having the accused describe the conduct that gave rise to the charge, or by making specific reference to those portions of the grand jury transcript or preliminary hearing transcript which provide a factual basis for the plea, or by eliciting information from the defense attorney or the district attorney. ([Citations.].)"
Holmes explained: "The trial court may cause a factual basis inquiry to be made of the defendant by directly questioning the defendant, or by garnering statements and admissions by his counsel. ([People v.] Wilkerson, supra, 6 Cal.App.4th at p. 1576.) When both parties stipulate on the record to a document, such as a police report, the factual basis requirement is met. (People v. Enright (1982) 132 Cal.App.3d 631, 634-635; Watts, supra, 67 Cal.App.3d at p. 182.) A summary recitation that `"[t]heres a factual basis," however, absent any other attempt by the trial court to develop a factual basis, is not adequate under the Watts standard. ([People v.] Tigner, supra, 133 Cal.App.3d at p. 435.) A reference to a complaint containing a factual basis for each essential element of the crime will be sufficient under section 1192.5 to establish the factual basis for the plea. (See, e.g., United States v. Corporan-Cuevas (1st Cir. 2001) 244 F.3d 199, 203 [` "The method by which the defendants understanding of the nature of the charge is determined may vary from case to case, depending on the complexity of the circumstances and the particular defendant. In some cases, a judge may do this by reading the indictment . . . ."]; United States v. Montoya-Camacho, supra, 644 F.2d at p. 486 [`The indictment may be used for this purpose if it is factually precise and sufficiently specific to show "the accuseds conduct on the occasion involved was within the ambit of that defined as criminal."].) While the trial court is not required to develop the factual basis on the record by asking the defendant to enumerate his proscribed actions, it must otherwise ensure that some reference on the record to other factual sources is present. ([People v.] Tigner, 133 Cal.App.3d at pp. 434-435.)" (Holmes, supra, 32 Cal.4th at pp. 440-441, fns. omitted.)
Respondent also urges defense counsels stipulation that there was a factual basis for appellants admission was sufficient. People v. McGuire (1991) 1 Cal.App.4th 281, 283, so held. Holmes specifically declined to decide this point, but noted, "[a] closer question is raised when counsel stipulates to a factual basis for the plea under section 1192.5, absent reference to a particular document that provides an adequate factual basis. (People v. McGuire[, at p.] 286 (dis. opn. of Poché, J.) [`Such a stipulation reveals no more of a factual basis supporting the plea than the plea itself.].)" (Holmes, supra, 32 Cal.4th at p. 441, fn. 8.) Holmes further stated, "we agree with the court in Wilkerson, supra, 6 Cal.App.4th at page 1577, that the better approach under section 1192.5 is for a stipulation by counsel to a factual basis to be accompanied by reference to a police report (Wilkerson, at p. 1577 [`So stipulated, your Honor, based on the police reports included in the complaint.]), reference to the probation report or preliminary hearing transcript (People v. Gonzalez (1993) 13 Cal.App.4th 707, 714-715), or reference to grand jury testimony (People v. Mickens[, supra,] 38 Cal.App.4th 1557, 1563-1565." (Holmes, supra, 32 Cal.4th at p. 441, fn. 8.)
Following Holmes, the court in People v. Willard (2007) 154 Cal.App.4th 1329 disagreed with McGuire. "The opinion in Holmes makes clear that there must be some reference to a factual source to support the essential elements of the crime. (Holmes, supra, 32 Cal.4th at pp. 441-442.) This requirement leads us to the conclusion that the dissent in McGuire was correct, a bare stipulation by counsel with no reference to documents containing factual support does not meet the standard of section 1192.5." (People v. Willard, at pp. 1334-1335.)
We agree with Willard. Counsels stipulation, without reference to the facts underlying the offense or other documentation, "`reveals no more of a factual basis supporting the plea than the plea itself. " (Holmes, supra, 32 Cal.4th at p. 441, fn. 8, quoting People v. McGuire, supra, 1 Cal.App.4th at p. 286 (dis. opn. of Poché, J.).)
Respondent next urges the factual basis requirement was met by defense counsels stipulation that the police report provided a factual basis. As indicated above, however, the police report specifically referred to by the prosecutor did not describe any of the facts underlying the offense appellant admitted.
Finally, respondent argues that the factual basis for appellants admission was supplied by the prosecutors representation that the victim sustained bruising around his eye and other swelling, combined with the fact the victim was available to describe his injuries. On this point, appellants objection is that the injuries the prosecutor described were not substantial enough to constitute "serious bodily injury."
Section 243, subdivision (f)(4), defines "`serious bodily injury "as "a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement." It has been held that the "terms `serious bodily injury in section 243 and `great bodily injury in section 12022.7 have substantially the same meaning." (People v. Beltran (2000) 82 Cal.App.4th 693, 696.) Section 12022.7, subdivision (f), defines "`great bodily injury " as "a significant or substantial physical injury." A "`significant or substantial physical injury need not meet any particular standard for severity or duration, but need only be `a substantial injury beyond that inherent in the offense itself[.] " (People v. Le (2006) 137 Cal.App.4th 54, 58-59, quoting People v. Escobar (1992) 3 Cal.4th 740, 746-747, 750.)
Appellant is correct that the prosecutors description of the victims injuries did not demonstrate that the victim suffered one of the injuries specifically enumerated in section 243, subdivision (f)(4)s definition of "serious bodily injury." The list of injuries in the statute, however, is expressly nonexclusive. While "bruising around his eye" and "other swelling" does not necessarily connote serious bodily injury, the court was required to find only a prima facie factual basis for the allegation appellant admitted. (Holmes, supra, 32 Cal.4th at p. 441.) It was stated at the hearing that the fight had been captured on a YouTube video and that the victim was available to describe his injuries. In the face of this available evidence, we hesitate to conclude the trial court erred in finding a factual basis for appellants admission.
In any case, even if we were to conclude the juvenile court erred with respect to its finding of a factual basis for appellants admission, appellant has not met his burden of showing prejudice because the record supports a finding of a factual basis for the admission. (In re Regina N. (1981) 117 Cal.App.3d 577, 586; Holmes, supra, 32 Cal.4th at p. 443.) The fight underlying the charge against appellant was captured on videotape. According to the probation report, the tape shows appellant, who outweighed the victim by 40 pounds, punching the victim in the face some 12 times, throwing the victim to the ground, getting on top of the victim and punching him seven more times in the head. In light of the brutality involved in this attack, the prosecutors representation that the victim sustained bruising and swelling as a result, and the availability of the victim to describe his injuries to the court, at least a prima facie case of serious bodily injury was established.
Appellant additionally argues it is not clear he made a free and voluntary admission to the allegation of inflicting serious bodily injury because the record indicates he is a special education student with a learning disability in auditory processing, who misperceives events, and therefore had limited ability to "evaluate the significance" of the "jargon" he admitted. Appellant likens his case to In re Regina, supra, 117 Cal.App.3d at pages 581-582, in which a minor signed a document stating she had voluntarily admitted a charge of receiving stolen property and the trial court accepted her admission after simply asking whether she understood what she had signed, then at disposition stated there was a factual basis for the admission. The Regina N. court reversed, finding the admission was accepted in violation of constitutional mandates (Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122) and California Rules of Court, rule 1354 (the predecessor to rule 5.778), requiring the court to "advise the minor and satisfy itself that the minor `understands each of the [enumerated] trial rights, the nature of the conduct alleged and the possible consequences of an admission, and make specific findings on each point." (In re Regina N., at pp. 581, 584.) Appellant particularly notes the courts statement that the "determination of the court at the dispositional hearing that there was a factual basis for the admission cannot substitute for a determination of the minors understanding of the charges at the time that the admission is obtained." (Id. at p. 587.)
In In re Regina N., the form the minor signed did not even spell out the offense she was admitting, but only referred to the petition and stated she admitted her "misconduct." Moreover, the court noted that her statements at the dispositional hearing, if true, would have absolved her of the offense she claimed to admit. Here, by contrast, appellant was specifically asked to admit inflicting serious bodily injury, and nothing in the record contradicts his admission. While appellant cites portions of the reporters transcript he feels demonstrate his "confusion" and "inability to follow the discussion," these pages in fact show that appellant understood well what was being discussed once a few unfamiliar terms were explained to him.
II.
Appellant further contends the trial court abused its discretion in ordering him placed outside his home. Appellant urges the courts decision was based to an inappropriate degree on his parents criminal histories. The contention is based on the courts discussion, at the dispositional hearing, of the probation reports statements that appellants father had been arrested for carrying a loaded firearm in 1987, assault with a deadly weapon in 1989, inflicting corporal punishment on spouse in 1994, assault with a firearm on person and willful cruelty to a child in 1995, and possessing cocaine base for sale in 1996, and that appellants mother had been arrested for resisting arrest in 2007.
We review the courts order for abuse of discretion. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1328-1330.) "`[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered. (People v. Giminez (1975) 14 Cal.3d 68, 72.)" (In re Carl N. (2008) 160 Cal.App.4th 423, 432.) In reviewing the juvenile courts decision, we "`must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them. [Citations.] 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. " (Ibid.) These purposes are "`(1) to serve the "best interests" of the delinquent ward by providing care, treatment, and guidance to rehabilitate the ward and "enable him or her to be a law-abiding and productive member of his or her family and the community," and (2) to "provide for the protection and safety of the public . . . ." (In re Charles G. (2004) 115 Cal.App.4th 608, 614-615 [noting also that [Welf. & Inst. Code,] § 202, subd. (b), authorizes punishment consistent with rehabilitative objectives]; see [Welf. & Inst. Code,] § 202, subds. (a), (b), (d).)" (In re Schmidt (2006) 143 Cal.App.4th 694, 716, fn. omitted.)
The probation report in the present case recommended that appellant be removed from his home and committed to the ranch because he had continued to offend despite the courts past efforts to "deter him from delinquent behavior." The probation report stated that appellant "presents a risk to community safety and to himself when he feels that he is being challenged or disrespected," is "in need of intensive rehabilitative services" and "needs to realize that when he engages in illegal activity, especially violent behavior against others, consequences are in order."
At the dispositional hearing, the district attorney strongly supported this recommendation based on the "brutal facts of this case," the fact that appellant had tried to justify his conduct (blaming the victim for being disrespectful and claiming self defense) rather than taking responsibility for it, and appellants history. Defense counsel, by contrast, argued that incarceration would not benefit appellant, noting that in the approximately three weeks appellant had been on home supervision since the jurisdictional hearing, he had "tested negative, didnt miss any school, never tardy for school, no issues or problems whatsoever." Appellants father told the court that appellant was taking classes at a community college, had earned satisfactory grades ("straight Cs" with "one bad grade") despite his learning disability, and had been invited to play football at two colleges. Appellants father was surprised about the fight, stating that he did not condone fighting; he disciplined appellant when he heard of "any small incidents" and had "a pretty firm grip on things"; and appellant did not have a history of fighting ("Hes had one or two fights his whole life—which is pretty good for a 17-year-old, I think.").
The court expressed concern about the level of violence involved in this fight and the fact it was not appellants first violent incident, noting the incidents described in appellants disciplinary record. The court then stated: "The father has quite a few criminal background checks: it looks like `assault with a deadly weapon, `inflicting corporal punishment on a spouse, `willful cruelty to a child in 1995 and `cocaine base for sale, and `criminal conspiracy in 1996. [¶] Theres nothing in the last 10 years with dad, so, hopefully, hes cleaned himself up. [¶] Mother was arrested for resisting arrest in February of 2007." The court then discussed appellants history of delinquency and the current offense, commented that appellants doing better in school and his father encouraging him to go to college were positive things, but told appellant, "you have a very, very bad temper, and when you are angry—for whatever misperceived slight you seem to feel is aimed your way—you become violent and dangerous. And it doesnt look like, to me, you can control that at this time. [¶] You havent been very good at controlling it before somebody is seriously injured, and I am very concerned about that. I think your father does love you and has come into your life—obviously, he straightened his life out now, but the father cant ignore the fact that, during the time he was not straight in his life—your son is learning a lot of lessons."
At this point, appellants father told the court that some of the allegations in the report were not true, that the fight appellant got into in ninth grade happened because appellant was trying to help another kid who was "getting jumped," and that appellant was not "that type of person" and was loved by everyone. Appellants father said that the day appellant got into the fight at issue here, a girl had thrown paper at him in a classroom and appellant told the principal about it; the principal "took sides" and "removed him from the football team over a piece of paper being thrown." According to appellants father, the fight began as a verbal conflict but the victim was intoxicated and was not able to "back down" and appellant was "at his prime force, physicalness, being ready for sports."
The court questioned appellants father about his own criminal history, and he told the court the 1987, 1989 and 1995 charges of assault, carrying a loaded firearm, inflicting corporal injury on a spouse and willful cruelty to a child were all dropped. He admitted having sold cocaine in the 1980s and early 1990s, but said this was "10 years old—17 years ago, growing up" and had "nothing to do with how hes being raised in 2008." Appellants father told the court his life "totally changed" when appellant was born, the charges of cruelty were false and he had fought for appellant in court and won custody. He acknowledged appellant was living with him when he was selling cocaine, but said the charges were dropped, the judge gave him the opportunity to raise appellant, and he had not been in trouble since.
The court explained that it believed appellants father had turned his life around but thought "there was a time when this child was raised, and it wasnt so good—[¶] . . . [¶] and maybe—maybe thats what—some of what were seeing now. [¶] . . . [¶] They learn by what they see." Appellants father acknowledged this point and continued to push for home placement; the court acknowledged appellants "good side," but determined to follow the recommendation for the ranch placement. In so doing, the court stated, "I know you love your son, but I am going to follow the recommendations. [¶] This Ranch is a wonderful program. It is a structured program. We have counseling there. We have gang diversion classes—which I think are important. [¶] Theres going to be a lot of assets he can learn, a lot of things he can learn there. Its right local, where you could visit and you can have contact with him." The court assured appellants father that there was an "excellent" school where appellant could finish high school, from which students had graduated and gone on to college.
Appellants argument that the courts decision to commit him to the ranch was based on his parents criminal history distorts the record. The courts questioning permitted appellants father to explain that most of the charges for which he had been arrested had been dropped. As to the drug offenses he admitted having committed when appellant was a child, appellants father acknowledged the truth of the courts point that children learn from what they see, stating, "True enough. [¶] `Accommodation and assimilation—I know what you are saying." A reading of the entire transcript of the dispositional hearing shows that the court was concerned with the nature of appellants current offense and history of violent incidents and anger management issues. The court accepted and welcomed appellants fathers concern and love for his son, but determined that appellant was in need of, and could benefit from, the out-of-home placement ordered.
Welfare and Institutions Code section 725.5 directs that in determining its dispositional order, the court "shall consider, in addition to other relevant and material evidence, (1) the age of the minor, (2) the circumstances and gravity of the offense committed by the minor, and (3) the minors previous delinquent history." Here, at the time of the hearing, appellant was four months away from his 18th birthday. The time within which the juvenile court could provide him with rehabilitative services was thus running short; as an adult, further offenses would be handled in the adult criminal courts. The offense appellant committed, though appellant attempts to minimize its significance by referring to it as a fistfight, involved him punching the victim in the head some 19 times, including pushing him to the ground and continuing to punch him as another perpetrator dragged him along the ground. Previously, in January 2005, appellant was observed pulling a students shirt over his head, pushing him to the ground and punching him five to eight times in the head and shoulders, then gave a false name to the police who investigated the incident. In March 2005, appellant was observed "stomping" on the head of a student who had been pushed to the ground. The wardship established after these incidents was terminated in July 2006, and appellant committed the current offense in September 2007. Several days before this offense, appellant broke a window in the school office by punching it after "violently" throwing it open as he left the principals office.
The above statutory factors supported the juvenile courts decision to commit appellant to the ranch: Appellant committed a significantly violent offense, had a history of similarly violent offenses, and was nearing the age when juvenile court intervention would no longer be possible. A psycho-educational assessment completed in December 2005 concluded that appellant was "at `risk for becoming temporarily incapacitated and for appearing agitated and distraught, " that appellant had difficulty with reality testing, "misperceives events, and forms mistaken impressions of people and the significance of their actions, resulting in poor judgment in which he fails to anticipate the consequences of his actions and misconstrues what constitutes appropriate behavior," had poor interpersonal skills and became "easily overwhelmed by what he considers to be threatening or hostile behaviors." Appellant minimized and attempted to justify his conduct, and denied having an anger management problem. His father—whom the court recognized wanted desperately to support and help his son—also attempted to minimize the significance of appellants conduct and did not feel probation or penal consequences were appropriate. Considering all the circumstances, the juvenile court did not abuse its discretion.
The judgment is affirmed.
We concur:
Lambden, J.
Richman, J.