Opinion
C059998.
4-23-2009
In re G.G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. G.G., Defendant and Appellant.
Not to be Published
In September 2004, when he was 11 years old, G.G. (the minor) admitted he came within the provisions of Welfare and Institutions Code section 602 by having committed misdemeanor vandalism. (Pen. Code, § 594, subd. (b)(1).) In November 2006, he admitted he had committed second degree burglary. (§§ 459, 460, subd. (b).) In December 2006, February 2007, and January 2008, he admitted he had violated his probation; following each violation, he was returned to parental custody with electronic monitoring. Then, in July 2008, the juvenile court found true five allegations of probation violations. The court committed the minor to the Youth Center and imposed general and special conditions of probation.
On appeal, the minor contends the Youth Center commitment was an abuse of discretion because the placement is not in his best interest, and several probation conditions are unconstitutionally vague and overbroad. We shall affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
July 2004 Original Petition
In February 2004, deputies found the minor and two other juveniles, D.G. and Z.L., in William Martins backyard. The back door of Martins home was open, and the window next to the door was broken. Profanities had been spray painted on the interior walls, fish aquarium, and television set. The home interior had been ransacked, and deputies noticed a strong odor of propane. An opened five-gallon propane tank was inside the home, and the gas line to the stove had been disconnected. In the backyard, vehicles and a boat had been vandalized. The words "Piro" [sic] and "Bitch" were spray painted on the boat. Cigarette lighters and assorted items were found in the backyard. Martins wallet and credit cards were found outside the residences gate. There were several freshly burnt areas in the field behind Martins home. The minor had spray paint on his hands and clothing. He admitted entering Martins home.
The minor admitted the vandalism allegation, and a first degree burglary allegation was dismissed with a Harvey waiver. (People v. Harvey (1979) 25 Cal.3d 754.) He was ordered to complete 30 days on home supervision, perform 20 hours of community service, pay various fines and fees, comply with general and special conditions of probation, and pay $6,424 in victim restitution.
July 2006 Original Petition
In July 2006, deputies found the minor and another juvenile in front of Fonda Scotts home carrying several pieces of womens jewelry. Four handguns that had been taken from the home were found near the juveniles. The minor attempted to flee but was detained after being bitten by a police dog. Additional jewelry was found in the minors pants pocket. Following an advisement of his constitutional rights, the minor admitted entering Scotts home along with two other juveniles, A.T. and M.W., and taking jewelry.
The minor admitted the second degree burglary allegation. The juvenile court continued his wardship and ordered him to participate in 36 hours of alternative sentencing, pay various fines and fees, comply with general and special conditions of probation (including not to be away from home overnight without permission and not to be absent from school or tardy without a valid excuse), and pay $1,346 in victim restitution.
December 2006 Violation of Probation
The minor absconded from home on December 4, 2006, and as of December 7, 2006, his father was unaware of the minors whereabouts. The minor failed to attend school on December 6 and 7, 2006, and had no valid excuse for his absence.
As a result, the probation department filed a petition alleging that the minor violated his probation by remaining away from his home overnight without his fathers permission (Count I); remaining away from his home for more than 48 hours without his probation officers permission (Count II); failing to keep his probation officer informed at all times of the minors address and telephone number (Count III); and being absent from school and tardy to school for more than 30 minutes without a valid excuse (Count IV). The minor was arrested for the probation violation on December 8, 2006. He remained detained in juvenile hall pending resolution of the allegations.
On December 12, 2006, while the violation of probation was still pending, the minor was placed on room confinement because he posed a direct threat to the physical safety of another resident. Specifically, the minor called another resident at juvenile hall a "fat ass" and a "little bitch." The resident responded by saying, "whatever." The minor got off of his bed and attacked the resident.
On December 19, 2006, the minor admitted Count I of the petition; the other counts were dismissed in the interest of justice. The juvenile court continued his wardship and ordered him to complete 60 days on electronic monitoring, participate in 36 hours of alternative sentencing, and comply with general and special conditions of probation.
February 2007 Violation of Probation
The minor left home on January 14, 2007, and as of January 17, 2007, his father was unaware of the minors whereabouts. Also, the minor was absent from school or tardy without a valid excuse on four separate occasions.
As a result, the probation department filed a petition alleging that the minor violated his probation by remaining away from home overnight without his fathers permission (Count I); remaining away from his home for more than 48 hours without his probation officers permission (Count II); failing to keep his probation officer informed of his address and telephone number (Count III); being absent from school and tardy for more than 30 minutes without a valid excuse (Count IV); and leaving home for an unapproved activity unaccompanied by a parent or guardian (Count V). The minor was arrested for the probation violation on February 8, 2007, and remained detained in juvenile hall pending resolution of the allegations.
On February 20, 2007, the minor admitted Count I of the petition; the remaining counts were dismissed in the interest of justice. The juvenile court continued his wardship and ordered him to complete 60 days on electronic monitoring, participate in 36 hours of alternative sentencing, and comply with general and special conditions of probation.
November 2007 Violation of Probation
From August through November of 2007, the minor was absent from, or tardy to, school without a valid excuse on 32 separate occasions. He was suspended from school for eight days due to habitual tardiness, failing to attend detention for the tardiness, and threatening the schools vice principal.
As a result, the probation department filed a petition alleging that the minor violated his probation by being absent from school or tardy for more than 30 minutes without a valid excuse (Count I); being suspended from school for tardiness (Count II); and being suspended from school for threatening school personnel (Count III). The minor was neither arrested nor detained pending resolution of these allegations.
On January 4, 2008, the minor admitted Count I of the petition; the remaining counts were dismissed in the interest of justice. The juvenile court ordered him to complete 30 days on electronic monitoring and two days of juvenile work project. All general and special conditions of probation, not in conflict with this order, remained in full force and effect.
May 2008 Violation of Probation
The minor absconded from his home on May 6, 2008, and as of May 9, 2008, his father was unaware of the minors whereabouts. The minor had been absent from, or tardy to, school without a valid excuse on 50 separate occasions from January through May 2008. In April 2008, the minor had been suspended from school for three days for inappropriately touching two female students; and he had been suspended from school for one day for possessing cigarettes, a screwdriver, and a blue bandana.
As a result, the probation department filed a petition alleging that the minor violated his probation by remaining away from home overnight without his fathers permission (Count I); remaining away from home for more than 48 hours without his probation officers permission (Count II); failing to keep his probation officer informed of his address and telephone number (Count III); being absent from school or tardy for more than 30 minutes without a valid excuse (Count IV); being suspended from school for misconduct (Counts V and VI); and failing to pay restitution (Count VII). He was arrested for violating probation and remained detained at juvenile hall pending resolution.
On May 19, 2008, the juvenile court ordered a competency evaluation to determine whether the minor had a mental disorder, mental retardation, or developmental immaturity that would prevent him from understanding the proceedings and assisting counsel with a defense. The court received a competency evaluation from Dr. Deborah Schmidt, a psychologist, on June 4, 2008. The report opined that the minor was competent to stand trial, but that he suffered from mild mental retardation. On July 14, 2008, the court found the minor competent and reinstated delinquency proceedings.
After a contested jurisdictional hearing, the court found to be true Counts I, II, IV (excluding the tardiness), V, and VI. Defense counsel requested a contested dispositional hearing for the court to consider an alternative to the Youth Center.
Contested Disposition Hearing The Youth Center Program
The Sacramento County Probation Department operates the Youth Center, which houses a maximum of 110 juveniles, both male and female. The center has three units: one housing 50 young and less sophisticated residents; another housing 30 males who are older or more sophisticated; and a third housing 30 females.
The Youth Center offers counseling programs; females attend "Lifestyles," and males attend "Pro-Social Skills." The programs address anger management and similar needs. Counseling programs are taught in a group setting by mental health professionals and trained probation officers. There are 10 to 15 residents in each class.
Youth Center residents typically awaken around 6:30 to 7:00 a.m. They do their hygiene, have breakfast, attend school, have lunch from 11:30 a.m. to 12:00 p.m., and then resume school until about 2:00 p.m. After school, they attend counseling programs that are usually conducted between 2:00 and 6:00 p.m. The rest of the afternoon and evening is spent on physical exercise, open recreation, or a program activity. Youth Center residents are subject to rules for hygiene, proper dress, and cleanliness of their rooms.
The Youth Center program has three phases: apprentice, journeyman, and foreman; while in the foreman phase, a resident may obtain honor status. Residents progress through the phases based on their written assignments, their performance in school, and their progress in counseling classes. Advancement to the next phase also requires either a long essay or a physical agility test; residents can choose the latter if they wish to avoid the former. However, residents must complete some written work in their progress reports. The writing assignments are graded on a pass/fail basis and are used to gain insight into how the resident is thinking and performing in the program.
After 21 days, residents can begin home passes and are eligible for furlough after at least 84 days. Furlough is supervised release for about a month or two, and eligibility depends upon whether the resident has finished his requirements. Generally, the requirements include completion of home passes, counseling programs, and community service.
The Youth Center accepts residents with limited intellectual functioning or low I.Q. The program can be challenging for these residents, but they can see a psychiatrist and receive medication to assist them. Highly distractible residents usually do the worst in the program.
Special Education at the Youth Center
The school at the Youth Center is named Esperanza. It does not have a special education classroom, and classes are taught by general education teachers. There are approximately 15 students in each class. However, Esperanza offers special education services to students within the general education classrooms. The services are provided by special education technicians, a resource specialist teacher, and the general education teacher. The resident would receive one-on-one service during portions of the six-hour day, but not throughout the day.
The Youth Center has 20 to 25 special education students at Esperanza. Esperanza has one full-time special education technician on staff. Two additional technicians work at Esperanza one day per week.
The Minors Intellectual Functioning
Dr. Schmidt, the psychologist, testified regarding the minors intellectual functioning. The minors full scale I.Q. is 60, which is in the mildly mentally retarded range. Persons who suffer mild mental retardation can have difficulty understanding terminology, verbal concepts, and verbal information being conveyed to them. Certain educational programs have been shown to raise I.Q. by a few percentage points; however, it is rare for a person to leap from one I.Q. category to another.
Dr. Schmidt testified that the minors adaptive functioning was considered low. The 16-year-old minor functions between the age equivalents of eight years, eight months and nine years, eight months. He may struggle in a group setting and become distracted. However, the minor could perform in a small group setting with ten residents and at least two adults, depending on the overall functioning of the group.
The minor has a limited ability for abstract reasoning; his thinking tends to be based on what he is observing at the time. In order to learn in the Youth Center environment, he would need clear expectations about where he is supposed to be and what he is supposed to be doing at all times. He would also need adequate staff and supervision, along with a small classroom environment and appropriate academic materials. It would be preferable for the minor to be involved in only one activity at a time. Otherwise, he would need reminders to stay on task.
The Minors Individualized Education Plan
Amy Wood, a special education teacher with the Sacramento County Office of Education, developed an individualized education plan (IEP) for the minor. An IEP is a tool used to help a special education student meet his or her educational needs inside the classroom. Wood collaborated with the minors general education teachers at juvenile hall to make sure that his needs were being met. Wood also worked with several technicians who work one-on-one with the minor to help him meet his goals. Additionally, she worked with the minor one-on-one to determine how he was doing and what help he needed.
The minors April 2008 IEP, which had been prepared by his local school district, indicated 77 percent of his instruction had been occurring in a special education classroom. His June 2008 IEP, which was prepared while the minor was incarcerated at juvenile hall, indicated that just 1 percent of his instruction was occurring in special education.
At juvenile hall, the minor was placed in general education, rather than special education, because some of the special education students had emotional disturbances. The general education classes in the hall were small enough that the minor could still be helped. Upon commitment to the Youth Center, the minors needs would be reassessed and his IEP would be adjusted. There are other students at the Youth Center with IEPs.
Dr. Schmidts Recommendation
Dr. Schmidt recommended that the minor be referred to Alta California Regional Center to see if it had programs that would benefit him. She recommended he participate in special education classes, psychotherapy, and anger management. It was important that the minor work with professionals who have had experience working with children who have limited intellectual functioning; otherwise, the minors behavior might be misinterpreted.
Dr. Schmidt opined that, if the minor did not receive special education services for the three months he was expected to be at the Youth Center, it could interfere with his ability to progress academically.
Dr. Schmidt acknowledged that she lacked in-depth knowledge of the Youth Center program. She was not familiar with the curriculum, the teaching methodology used, the vocabulary used, or the manner in which staff spoke to residents.
The Juvenile Court Ruling
After considering and weighing the appropriate factors, the juvenile court committed the minor to the Youth Center. The court found that the minor had been supervised on probation for 44 months, had received counseling services from Stanford Home for Children, and had participated in wardship, juvenile work project, community service, home supervision, and electronic monitoring — all without success; that the minors father was incapable of providing, and had failed or neglected to provide, the proper maintenance, training, and education for the minor; and that the minor failed to reform after being tried on probation.
DISCUSSION
I
The minor contends the juvenile courts order removing him from his fathers custody and placing him at the Youth Center was an abuse of discretion because such placement was not in his best interest. We disagree.
"The decision of the juvenile court may be reversed on appeal only upon a showing that the court abused its discretion in committing a minor to [an out of home placement]. [Citations.] An appellate court will not lightly substitute its decision for that rendered by the juvenile court. 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. [Citations.]" (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395; see In re Carl N. (2008) 160 Cal.App.4th 423, 432.)
A minor should be removed from the custody of his parent only when necessary for his welfare or for the safety and protection of the public. (Welf. & Inst. Code, § 202, subd. (a); further section references are to this code.) Minors under the juvenile courts jurisdiction as a result of delinquent conduct shall, in conformity with the interests of public safety and protection, receive care, treatment, and guidance that is consistent with their best interest. (§ 202, subd. (b).)
Before custody can be taken from a parent, the juvenile court must make one of three findings. (§ 726, subd. (a).) All three findings were made in this case.
First, the juvenile court found that the minors father was incapable of providing, and had failed or neglected to provide, proper maintenance, training, and education for the minor. (§ 726, subd. (a)(1).) There is substantial evidence for this finding because the minors father could not control him. (In re Michael D., supra, 188 Cal.App.3d at p. 1395.)
The minor participated in serious vandalism in 2004, which threatened bodily injury and death and resulted in $6,424 in restitution; and he committed burglary in 2006, where jewelry and handguns were stolen. Then, while in his fathers custody between November 2006 and May 2008, the minor absconded from home three times, missed or was late for school 89 times, was suspended from school four times, threatened school personnel, and inappropriately touched female students. During this same period, the minor participated in community service, juvenile work project, home supervision, and electronic monitoring. None of these tools enabled the father to control and guide the minor.
In boldly claiming he "posed no threat to public safety," and "was not a danger to the community," the minor ignores the ultrahazardous facts of his 2004 offense, which involved the opening of a propane cylinder and the disconnection of a natural gas line, both inside a residence. He also ignores the theft of guns and the unprovoked fight while on probation.
Contrary to the minors argument, the juvenile court did not abuse its discretion by failing to consider a fourth round of electronic monitoring as an alternative to the Youth Center. Even though the minor had some success while on the monitor, he had not demonstrated any ability to comply with probation once each period of monitoring ended.
Second, the juvenile court found that the minor has been tried on probation in the fathers custody and has failed to reform. (§ 726, subd. (a)(2).) There is substantial evidence for this finding. (In re Michael D., supra, 188 Cal.App.3d at p. 1395.)
The minor was placed on probation for the 2004 incident. While on probation, he committed the 2006 incident. While on probation for both incidents, he absconded from home and missed days of school. The minor resolved the probation violation and, less than two months later, he was before the court on another violation because he absconded again and missed or was late for school. After resolving that violation, the minor was before the court for missing or being tardy to school 33 times and getting suspended on two separate occasions. The minor was continued on probation, and he violated probation a few months later. The minor was given five opportunities to complete probation, and he failed at all five of them.
The evidence did not show where the minor had gone during his overnight journeys from his residence; nor did it reveal the reasons for his absences. His appellate counsel speculates that the absences were related to the minors learning disability and distractibility. But even a child of the minors mental age of eight to nine years could understand that he should not be away from home overnight.
Third, the juvenile court found that the minors welfare required that custody be taken from the parent. (§ 726, subd. (a)(3); see § 202, subd. (a).) This finding is supported by substantial evidence.
The minor repeatedly absconded from home for days at a time and missed a substantial amount of school in a relatively short period of time. The Youth Center program would prevent the minor from running away from home and would force him regularly to attend school. Further, the minor needed structure and close supervision so he could focus. The Youth Center would provide structure, supervision, and control that the minor needed in order to stay on task and achieve his goals.
The minor disagrees, claiming his intellectual functioning makes it unlikely that he could complete the written assignments required for advancement through the phases of the Youth Center program. Although the Youth Center has a writing requirement, the assignments are graded on a pass/fail basis and "take into account [the residents] writing ability." The minors speculation that he would "be unable to complete the written assignments" assumes, contrary to this testimony, that his lack of verbal ability would not be taken sufficiently into account.
The evidence showed that residents with low intellectual functioning or distractibility issues could find the Youth Center to be a challenge; they could see a psychiatrist and get medication, but there was no other method of tailoring the program to individual residents needs.
No psychiatrist addressed this issue, and the psychologist, Dr. Schmidt, did not claim expertise in psychiatry and medication. Thus, the record does not disclose whether psychiatric treatment and medication would suffice to meet the minors needs. The minors argument that they would not do so is speculative and fails to show an abuse of discretion.
In any event, Dr. Schmidt merely speculated that medication "[p]ossibly" could help the minor, "[b]ut possibly not."
Dr. Schmidt believed that the minor would need "individualized programming and attention" in order to benefit from the Youth Center. However, the juvenile court expressly found that the probative value of Dr. Schmidts comments regarding the minors ability to succeed at the Youth Center was limited by her lack of knowledge of the center and its programs. No abuse of discretion is shown.
The minor argues that the Youth Center lacked appropriate special education services. We disagree.
A special education student at the Youth Center can receive special education services. The services are provided within a general education classroom by a special education technician who is overseen by a certified teacher. The Youth Center has about 110 residents, and 20 to 25 of them receive special education. There are usually 15 students in a given class. The evidence did not show that Youth Center staff lacked sufficient training to work with minors with limited intellectual functioning.
The minor notes that, in public school, he had been spending 77 percent of each day in a special class for students with learning handicaps and was being taught by a special education teacher; but that in juvenile hall and presumably the Youth Center, he would spend only 1 percent of his time in special education. He finds it "iron[ic]" that the juvenile court would shift him from a more suitable school to a less suitable one. However, too often, the minor had been tardy to, or absent from, the public school. Although the school offered 77 percent special education, the minor often was not there to receive it. The court had to weigh the public schools higher percentage of special education, and its lower likelihood that the minor would be present, against the Youth Centers lower percentage of special education and the greater likelihood or certainty that the minor would be present. The court properly determined that the minor was a repeat violator of probation who was not getting the supervision he needed at home and thus needed to be placed, and educated, in a custodial setting. There was no abuse of discretion.
II
The minor contends several probation conditions must be stricken or modified because they are unconstitutionally vague and overbroad. His claims are not persuasive.
Background
When the minor was committed to the Youth Center, the juvenile court imposed special conditions of probation, including:
"1. Not associate with [D.G.] and [Z.L.]," the coparticipants in the 2004 incident.
"2. Not associate with [A.T.] and [M.W.]," the coparticipants in the 2006 incident.
"3. Not knowingly have any contact or communication with William Martin [the victim of the 2004 incident]. Contact or communication is defined as, but not limited to[,] physical contact and contact via telephone, electronic communication, mail[,] or a third party. Minor is not knowingly to be within 100 yards of [Martin], [his] home or place of work."
"4. Not knowingly have any contact or communication with Fonda Scott [the victim of the 2006 incident]. Contact or communication is defined as, but not limited to[,] physical contact and contact via telephone, electronic communication, mail[,] or a third party. Minor is not knowingly to be within 100 yards of [Scott], [her] home or place of work."
Neither the minor nor the People objected to these special conditions of probation.
Analysis
Appellate courts review challenges to probation conditions under the abuse of discretion standard. (People v. Olguin (2008) 45 Cal.4th 375, 379.) "Generally, `[a] condition of probation will not be held invalid unless it "(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . ." [Citation.] [Citation.] This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. [Citations.] As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality. [Citation.]" (Id. at pp. 379-380.)
However, "`[a] probation condition that imposes limitations on a persons constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. [Citations.]" (People v. Olguin, supra, 45 Cal.4th at p. 384.)
Conditions 1 and 2 prohibit the minor from associating with his four coparticipants in the 2004 and 2006 incidents. The minor argues that these conditions are unconstitutionally overbroad and must be modified to prohibit only "knowingly and purposefully" associating with those individuals; otherwise, the minor could violate his probation simply by riding on a bus that is later boarded by a named individual.
The term "associate" implies knowing and purposeful conduct; thus, an express requirement of knowing and purposeful association would be needlessly redundant. Merely remaining on a bus later boarded by one of the proscribed individuals, without interacting with the person, is not the sort of association the condition is designed to prevent. Construing conditions 1 and 2 in this manner, we conclude no modification is necessary.
Conditions 3 and 4 prohibit the minor from, among other things, "knowingly to be within 100 yards of" the two victims. The minor claims he would violate this condition if he were "asleep under a tree and one of the named individuals was seated on a nearby bench." (Italics added.) We disagree. The knowledge element ensures that probation would be violated only if the minor knew that the victim "was seated" on the bench before the minor fell asleep. If the victim were to sit down after the minor is asleep, there would be no knowledge and no violation; only after the minor awakens, learns of the victims presence, and fails to relocate (the equivalent of an "action by" the minor) could a probation violation accrue. There is no overbreadth and no error.
DISPOSITION
The orders are affirmed.
We concur:
RAYE, J.
BUTZ, J.