Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J07-2148
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
D.S. challenges a finding that he violated the conditions of his probation by possessing weapons and a disposition order that removed him from his home. We affirm.
Background
On or about November 27, 2007, D.S. (born September 1990) posted the following message on the MySpace internet webpage of A.R. (age 17), who had had an affair with D.S.’s girlfriend (incomplete words in the message are rendered “xx—“): “Hey you fucking nigger you are going to die . . . I know you ma—move on his girl when you know that they are together . . . You just fucked up your life you fucking coon . . . Your done dead no more [A.R.] yeah that’s right I know you I know where you work I know [ ]—live I know what school you go to . . .” D.S.’s own web page showed images of Nazi soldiers, swastikas, firearms, and a History Channel video clip depicting Nazi soldiers during World War II. When confronted by police, D.S. admitted posting the message and said he had made a mistake and he did not plan on hurting A.R. He was arrested and charged in a Welfare and Institutions Code section 602 petition with felony criminal terrorism in violation of Penal Code section 422. On January 6, 2008, the charge was reduced to a misdemeanor and sustained.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
In a disposition report, the probation department wrote that D.S. offered to apologize to A.R and appeared genuinely remorseful. His explanation for the Nazi images on his web page was that he was part German and had learned about the Nazi era in history classes as a young boy. D.S. had a part-time job at a movie theater, and attended a continuation school. Although his grades were poor, his attendance was good, and he had no disciplinary record. He denied any drug or alcohol use, his drug tests were negative, he had no prior juvenile referrals, and there was no evidence of gang affiliation. His performance on home supervision, while on juvenile electronic monitoring, was excellent. He reported a close relationship with his mother, and his mother expressed shame for her son’s actions, and said she had never had any problems with him before the incident. Probation recommended D.S. remain at home on probation.
At the disposition hearing on February 20, 2008, the court declared D.S. a ward and placed him on 180 days home supervision without electronic monitoring. Among other conditions of probation, D.S. was ordered to give the probation department access to all of his computer systems, email accounts, and internet accounts, not to possess or use weapons or ammunition, and to write an essay on what the Nazis did in World War II, an essay on the civil rights movement in the United States, and a letter of apology to A.R. A June 2008 status report stated that D.S. had written the letter and essays and was doing well on probation. At a June 25 status hearing, D.S.’s probation was continued to October 29, 2008.
Probation Violation
On July 12, 2008, a probation officer who was monitoring D.S.’s MySpace account discovered four postings on D.S.’s computer accounts that caused her concern. A printout of one of the postings includes the notation, “Last Login: 6/28/2008,” and the text, “fuck all these punk ass gang niggas u ain’t sh.” A printout with the notation, “Last Login: 6/30/2008,” includes a picture of D.S. kneeling by a car with the text, “fuck yo couch nigga” and “D~S[] is single again cuz a dumb bitch just lost somethin great so hey ladies D~S[] is i single man now wats up.” A printout with the notation, “Last Login: 7/12/2008” includes a picture of D.S. holding a machete with the text, “fuck yo couch nigga” and “D~S[] wants to beat the shit out of someone he’ got some much anger built up inside he needs a good UFC style rumble hella bad right now.” A printout from a “Mail Center” includes the following exchange of messages: July 10, 2008 from “K[]” stating, “Is dat a real blade on ur shoulder? Rambo resurrected lol”; July 10 from “D~S[]” stating, “yea it is its my machete fool”; July 10 from “K[]” stating, “Bout to kill somebody huh –lmao”; and July 11 from “D~S[]” stating, “only if I have to.” On July 15, the probation officer went to D.S.’s home with a police officer and discovered six swords, six daggers, six machetes, three BB gun rifles, one air soft rifle, and two air soft pistols in the home, as well as a laptop computer that stored pictures of D.S. with these weapons. D.S. was taken into custody.
The probation department filed a notice of probation violation on July 18, 2008, alleging that D.S. possessed a machete in violation of court orders. In a report for the hearing on the violation, the probation department wrote, “It appears that the minor is in need of additional supervision and a mental health evaluation. His mother is very supportive of him. However, she [is] not acknowledging [] the seriousness of the minor’s behavior and the potential for violence in view of his extensive weapon collection. [¶] . . . It is very apparent the minor is being consumed by anger despite being in therapy.”
At the outset of the contested hearing, the notice of violation was amended to allege possession of a machete and other deadly weapons after he was placed on probation on February 20. LaTasha Jones, the probation officer who monitored D.S.’s internet accounts, testified that she saw the June 30, 2008 posting on that date and when she checked again on July 12, she saw the picture of D.S. with the machete and the accompanying text. She went to D.S.’s home on July 15 with Pittsburg Police Officer David Cranston, showed D.S. a copy of the July 12 posting, and asked him where the weapon was. D.S. told her it was downstairs. The officers walked through the upstairs dining room and kitchen, and descended a steep staircase to reach the unfinished downstairs, which looked like a basement or garage. At the bottom of the stairs, a door to the next room was closed but not locked. D.S.’s brother, R.S., was in the room, which he testified was his bedroom. The officers asked R.S. where the weapons were stored and he showed them the way through his bedroom and a washing area to a den-like room that contained a couch. The weapons were located between the wall and the couch of this room, with some in boxes or cases and some “standing [up] in the corner” in plain view and readily accessible. The officers searched D.S.’s room and found no weapons there.
D.S.’s brother, R.S., testified that he lived downstairs, which had a different address and a separate outside entrance on the side of the house. When nonfamily members visited R.S., they entered through the outside entrance, which opens to a yard where a pitbull is kept. Family members accessed R.S.’s residence by way of the inside stairs, but they needed a key to enter his bedroom and D.S. did not have a key. When R.S. is home, he often leaves the bedroom door open for air circulation. R.S. testified that the den-like room was his living room, that he does not spend any time upstairs, and that he does not hang out with D.S. According to R.S., D.S. has only come downstairs once or twice and only when R.S. was home. In addition to the couch, the den-like room had a coffee table, dresser, and a closet, and items stored there by his mother. R.S. testified that the weapons belonged to D.S. and that his parents had put the weapons in his living space about two or three months before because D.S. was not supposed to have any weapons in the main living area upstairs. He took the picture of D.S. with the machete before D.S. got into trouble with the law.
The court found by clear and convincing evidence that D.S. violated his probation by possessing a machete and other deadly weapons after February 20, 2008. She ordered D.S. detained pending disposition and commented, “I don’t know what’s going on in this home. Mother is smiling broadly when the officer is describing why he didn’t go out because there’s a pit bull. I don’t know what kind of home this is that’s having this huge group of weapons. [¶] I would like Probation to do a thorough study of what’s going on in this home. Is this a terrorist cell? Do we have some kind of—it’s a very dangerous situation, and we have a mother sitting here smiling throughout the whole thing. And it just gives the court chills. [¶] . . . [¶] I find . . . the whole family to be dangerous.”
Disposition for Probation Violation
In its disposition report, the probation department reported that when D.S. was interviewed on August 12, 2008, he appeared very angry and upset, saying he “shouldn’t be here” and he was “not a terrorist.” When asked “why he chose to use Hitler’s birthday as his on his ‘MySpace’ account,” he responded, “I don’t know. It’s also the day for ‘National Pothead Day.’ ” When asked why he expressed himself the way he did on the most recent MySpace posting, D.S. said he was tired of being in the house and not being able to hang out with his friends. When asked about “the amount of ‘survival gear’ he had,” he explained it was for his future plans to play Airsoft, a combat game like paintball, when his probation ended and said his long range goal was to become a United States Army Ranger. He said he thought he was complying with his conditions of probation because his weapons were at a different address, but stated he should have removed them from the house altogether.
D.S.’s mother told probation she was very angry with D.S. about his MySpace posting. She said the weapon collection was a hobby and she thought she was doing the right thing by removing them from D.S.’s room and placing them in another location. She did not believe D.S. would use the weapons to hurt anyone. Nor did she believe he had an anger management problem. D.S. was described as a polite, considerate person who behaves well at home and adheres to the house rules. His mother promised to restrict him from using the computer and supervise him a little more closely.
Probation wrote that the circumstances raised “serious concern” in light of the Nazi symbolism, racial slurs, presence of weapons, and expressions of anger, and potential violence. However, the report also stated that D.S. “appears to have the support of his mother who is willing to provide additional supervision and accountability for the minor . . . [and] is entirely invested in her son’s future and wants nothing but the best for him.” Probation recommended that D.S. be continued a ward of the court with 30 days of electronic monitoring and participation in anger management therapy. His parents were to participate in counseling.
At the disposition hearing, D.S.’s counsel represented that the June 28 and June 30, 2008 postings were originally posted on the internet before D.S. was placed on probation. The login dates were said to be dates when D.S. logged on to view the old postings. Counsel acknowledged, however, that the July 12 posting was created on that date. The court responded, “I have some credibility issues since . . . looking at the beard that he was wearing . . . last time he was here and . . . the different clean-shaven things in the picture does lead me to believe that they are a little different than as he is saying it.” Enlargements of the July 12 picture of D.S. holding a machete, which were attached to the probation reports for the July 21 and August 6 hearings on the alleged violation, seem to show that D.S. is bearded in the picture.
In announcing its ruling, the court said the probation report was “absolutely appalling” because it failed to discuss D.S.’s initial offense. That offense “was very serious, and it was very frightening. And here he’s doing it again in a similar v[e]in.” The court explained that the postings raise “a lot of concern about his violence, his anger and frankly his danger to the community. And given his access to weapons I am very concerned about this.” The court added, “I am very concerned about the home. I’m certainly not going to return David to this home if the mother thinks having an entire armory of six swords, six daggers, six machetes, three BB guns, . . . one air-soft rifle and two air-soft pistols seen in the absolute common area that the Department was able just to walk into from their house without having to have any locked doors. And they said on the stand, oh, the door just happened to be unlocked that day when they were doing the search. I really find the home not to be one that I feel would be safe for the minor. [¶] I also think it[] behooves the court to look back to what was the original offense, [which] was a very serious threat. . . . . [¶] Now we come to his MySpace messages . . . . [¶] [T]he messages are serious, and the messages are again aimed at minorities . . . . [¶] . . . I don’t know what we’re dealing with here. . . . but I’m not sending him back to this home. I certainly don’t think that they did a very good job in making sure the minor who is threatening people, is around machetes and knives and swords.”
D.S. was removed from his parents’ home pursuant to section 726, subdivision (a)(3), ordered detained in juvenile hall pending placement in a court-approved home or institution, and ordered to undergo psychological evaluation. The court made a written finding that placement outside the home was an immediate and urgent necessity. The maximum term of confinement was set at one year.
Discussion
I. Finding of Probation Violation
The court is authorized to modify a disposition order and remove the ward from his home if the probation department proves by a preponderance of evidence that the ward violated the terms of his probation. (§ 777, subd. (c).) Here, the probation department alleged that D.S. violated the conditions of his probation by possessing a machete and other deadly weapons after February 20, 2008. In criminal cases, possession may be established by circumstantial evidence and need not be exclusive if the accused has an immediate right to exercise dominion and control over the item. (People v. Hurst (1960) 183 Cal.App.2d 379, 387.)
The court’s finding that D.S. possessed the weapons in violation of the terms of his probation is supported by substantial evidence. (See Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632 [factual findings reviewed for substantial evidence].) The court could infer that D.S. had ready access to the weapons (i.e, they were within his dominion and control) from the evidence that D.S. knew where the weapons were located; he had directed the probation and police officers downstairs without suggesting they would encounter an obstacle such as a locked door; the officers were able to reach the weapons without passing through any locked doors; the weapons were in plain view (in or out of boxes) in a den-like room that also contained items belonging to D.S.’s mother, suggesting that R.S. did not have exclusive access to the room; D.S.’s parents put the weapons in the room when R.S. was not present, again suggesting that R.S. did not have exclusive access to the room; and the room contained a laptop computer that stored pictures of D.S. with the weapons, suggesting that D.S. had access to the computer and the room. Although R.S. testified that the den-like room was part of his separate residence in the house and D.S. could not access the room without his permission or a key, which he did not possess, the court was not required to credit this testimony.
The court could also reasonably infer that D.S. actually handled the weapons given the following evidence: D.S. posted a picture of himself with one of the weapons on July 12, 2008; he is bearded in that picture, as well as when he appeared in court in August; and D.S. was not bearded in the picture that was posted on June 30. Again, although R.S. testified that he took the picture of D.S. with the machete before D.S. was on probation, the court was certainly not required to credit his testimony.
D.S. maintains that the prosecution conceded at the probation violation hearing that the picture of D.S. with a machete had been taken before D.S. was placed on probation. This is a misrepresentation of the record. In any event, the possibility that the picture might have been taken before February 20, 2008 does not undermine the court’s finding that D.S. possessed the weapons that were stored in the downstairs den-like room after that date since he had ready access to them.
D.S. cites the following exchange at the probation violation hearing, which does not evidence any such concession:
D.S. suggests that the violation was not willful and thus could not support a change in his disposition order. (See People v. Galvan (2007) 155 Cal.App.4th 978, 983 [reversing revocation of probation where failure to report to probation was not willful where probationer had been deported].) He claims that placing the weapons in the downstairs room was a good faith effort to comply with the terms of his probation. However, D.S. never demonstrated that he was unable to place the weapons in a location where they would not be readily accessible to him. The court found he did not do so, and this finding is supported by substantial evidence. A violation of probation was proven.
II. Removal from Home at Disposition
In determining the disposition of a ward, courts must 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 minor’s previous delinquent history.” (§ 725.5.) Courts must also be guided by the purposes of the juvenile delinquency laws, which 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; see § 202, subds. (a), (b), (d).) To remove a ward from the physical custody of his parents, the court must find 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.” (§ 726.)
The court did not abuse its discretion by ordering out-of-home placement for D.S. (See In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330 [disposition order reviewed for abuse of discretion].) As pointed out by the court, D.S.’s original offense was very serious even when compared to the range of conduct that falls within the crime of criminal threats; D.S.’s June 28, June 30, and July 12, 2008 internet postings bore striking similarities to the original offense (statements that he could commit violent acts and a racial slur); and his credibility about the timing of some of his actions was questionable–supporting an inference that D.S. was not taking responsibility for his actions. Removal from the home was necessary because D.S.’s mother allowed him access to multiple weapons in a common area of the house despite the violent, threatening nature of his underlying offense. The court also commented that the mother’s demeanor during the hearing on the probation violation raised questions about her attitude toward D.S.’s misconduct and toward violence in general. On these facts, the court reasonably concluded that D.S.’s welfare required that he be removed from his family. (§ 726, subd. (a)(3).)
D.S. argues that the court abused its discretion in removing him from the home because in many ways D.S. had performed very well on probation: he was attending school and was scheduled to graduate in December; he behaved well while detained in juvenile hall; he had not committed any crimes while on probation; he had held a job; he had negative drug tests; and he had followed through on all other affirmative requirements of his probation, including the apology letter and essays. Nevertheless, none of these facts negate the court’s critical finding that D.S. had again engaged in behavior similar to his underlying offense and that he was not being shielded from weapons in his home. Even the probation officer who had recommended a less restrictive disposition acknowledged at the disposition hearing that D.S. was presenting something of a split personality: an exemplary record in many ways, but also a “dark side.” Probation also questioned whether D.S.’s mother was taking the situation seriously enough. D.S. was about to turn 18. This disposition hearing was likely the last opportunity to rehabilitate D.S. in the juvenile justice system rather than the adult criminal justice system.
Disposition
The trial court’s August 6, 2008 finding that D.S. violated the conditions of his probation, and its August 20, 2008 order removing him from the home are affirmed.
We concur. JONES, P.J. NEEDHAM, J.
“[Prosecutor]: . . . [The probation officer] noticed that in one of the pictures–which was posted on July the 12th–it was a picture of [D.S.] wielding a large machete over his shoulder. Included in that picture were several statements that he was looking to ‘whoop somebody’s ass.’
“[Defense Counsel]: I would object as beyond the scope of the violation. [¶] I believe there was already discussion that the issues of the photos were conceded to occur prior to the period of probation.
“[The Court]: What?
“[Defense Counsel]: There were photos that were referred to in the pleading, that were acknowledged by [the prosecutor] to have been taken well before the minor was placed on probation, and weren’t the basis for the probation hearing today.
“[The Court]: I’m just listening to what he is saying about something that was found on the MySpace account in July–is that correct?
“[Prosecutor]: Correct, Your Honor.
“[The Court]: —and that on July 12th Probation–you’re saying–noticed pictures. And what was said on the pictures, I think, is relevant. [¶] So overruled.”