Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J0601132
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Introduction
Defendant and appellant Jason O. appeals the juvenile court’s dispositional order committing him to the Orin Allen Youth Rehabilitation Facility (OAYRF) for a period of six months. Appellant contends the juvenile court abused its discretion by sending him to the OAYRF rather than returning him to the home of his mother. He also contends the juvenile court’s decision amounts to a violation of his constitutional rights to due process. For reasons explained in more detail below, we discern neither abuse of discretion nor any violation of appellant’s constitutional rights. Consequently, we affirm.
Facts & Procedural Background
On May 3, 2006, the San Mateo County District Attorney filed a juvenile wardship petition against appellant pursuant to Welfare and Institutions Code section 602 subdivision (a). The petition alleged appellant committed three misdemeanor violations of Penal Code section 71 and one misdemeanor violation of Penal Code section 415 stemming from an incident at Hillsdale High School in San Mateo on March 20, 2006. On that day, appellant was accused of accosting another student before being escorted to the principal’s office by the visiting probation officer. It was decided appellant should leave the campus. Appellant became very hostile and aggressive towards the principal and staff escorting him off campus. He cursed them, approached them in a loud and threatening manner with fists clenched. Appellant came within inches of the principal’s face in this manner, and staff described him as being very physically agitated and “close to completely losing it.” At a jurisdictional hearing on June 7, 2006, appellant admitted two counts of threatening an official (Penal Code § 71) and the other two counts were dismissed.
Further statutory references are to the Welfare and Institutions Code unless otherwise stated.
On June 12, 2006, a subsequent section 602 petition alleged appellant violated Vehicle Code section 12500, subdivision (a) by driving a motor vehicle without a valid driver’s license on May 3, 2006. On July 20, 2006, the Contra Costa juvenile court adjudged appellant a ward of court and ordered he reside in the home of his father and stepmother. The court also ordered appellant to attend school regularly and obey school authorities, to complete 40 hours of community service, to submit to an 8:00 p.m. curfew and to attend anger management.
On June 28, 2006, the case was transferred to Contra Costa County for disposition after Jason went to reside with his father Ovidio with court approval.
On August 23, 2006, the probation officer filed a notice of violation of probation pursuant to section 777. The notice alleged appellant violated probation by failing to obey his father and stepmother, failing to follow his probation officer’s orders, and violating curfew on August 21 and 22, 2006. At a hearing on September 7, 2006, the probation officer informed the court appellant had been involved in an incident at his school the day before. Mr. Becker, a teacher at Diablo Community Day School, reported he saw appellant using a cell phone on school property. Appellant denied using his cell phone and refused to hand it over. When Becker again asked appellant to hand over the cell phone, appellant cursed at Becker in an aggressive manner. Becker and appellant went to meet with the principal. The principal asked appellant to hand over the phone and explained it would be returned to him after school. Appellant stated, “Fuck this, I’m out of here,” and walked out of the school looking very agitated.
The hearing on September 7 was concluded and the matter set for disposition after appellant admitted leaving school without permission, and the court found appellant violated probation by going to San Mateo County without the permission of his probation officer. The court dismissed the other allegations with prejudice.
At a contested dispositional hearing on September 25, 2006, appellant’s father, Ovidio O., stated appellant came to stay with him and his wife in May [2006]. Ovidio said things were fine from May through September, but as appellant got ready to start school “we started having problems with his temper.” Ovidio stated: “He has told U.S. clearly that he does not like school. That’s the reason why he is in high school and only has 5 credits accumulated. He does not like it here because we impose rules that he has to go to school. If he went out anywhere, he has to report with U.S. every 2 hours. At 8:00 p.m. he has to be home and inside the house. . . . [¶] . . . [¶] [T]he probation officer . . . authorized me to take the cell phone away from [appellant] because that was a problem. That’s what he was using to contact his friends. He told me that he would not give it back to me. [¶] When I demanded he give it to me, he just threw it at my feet. When I demanded that he pick it up off the floor and hand it to me in my hand, he became out of control. He said that he wanted to kill somebody.” When asked if appellant had threatened to kill him, Ovidio responded: “That day he said he wanted to kill someone, and he would just glare at me and I could see another person in him. I became very scared. I was afraid of him at that moment because I don’t know what he is capable of. [¶] For almost a week I had to brace the door in order to be able to sleep because I thought perhaps during the night he would do something to us. He has a bad temper and he does not respect anyone. [¶] What I want is what is best for him. I want him to go to school, but he does not like school. He does not want to go.”
Ovidio said he wanted appellant placed in an environment where “he can be safe” and “learn to respect himself and the school authorities and his elders.” He opined appellant should not be sent back to live with his mother in San Mateo because “that’s really [like] taking him back to the lion’s den.” Asked to explain this comment, Ovidio stated: “Because he does not go to school or anything. He just wants to be with his friends. [¶] Last Saturday I went to see him in the Juvenile Hall. He told me that he spoke with his sister [who told him] that his friend Jessie had been beat up. He told me that he knows a gang that beat up his friends. They are of the Tongan race. He said when he is released he is going to confront these people and ask them why they beat up his friend. That’s why I want him to be safe. I don’t want him to go back over there.” Further, Ovidio stated appellant does not want to return to his house but “wants to be in San Mateo.” Ovidio repeated he did not think a return to San Mateo was best for appellant, stating, “I want him to be in a place where he can think it over and realize that life is not just being out with your friends, that he needs to go to school.” He added that he loved his son, but, “When he is out of control, I am afraid of him.”
Appellant’s mother, Maura C., testified on appellant’s behalf at the continued dispositional hearing on October 3, 2006. On direct, Maura stated Jason went to live with his father in May after “he had a suspension at school. He was suspended. And they sent him to a school that I did not like. And he took the decision himself, says, ‘I’m going to go with my daddy to see if I can find a better school.’ ” Maura stated appellant’s behavior was good when he visited her in San Mateo at weekends while staying with his father. She also stated she had no problems with appellant at home before he went to live with his father. Maura denied she knew he was cutting class, asserting he only missed school “when he was sick.” She did not know why appellant was so behind on his school credits, saying only that she was told by school officials he was going to have to repeat a year. Maura stated she wanted appellant to come back to live with her. In response to appellant’s counsel’s question as to what she would do to make sure appellant attends school regularly, Maura replied: “Well, what I’ve always done, take him to school and be in contact with the school.” After appellant’s counsel pointed out appellant had not been going to school in the past and asked what Maura would do differently this time, she replied: “Well, pay close attention to him, and you know, continuously be watching over his problems and he’s got to mind me.” Maura asserted she would contact probation if appellant did not attend school as required.
On cross-examination, Maura stated appellant was under her supervision when he was expelled from Hillsdale High School. After appellant was expelled, Maura said she enrolled him in another school. She described the school and appellant’s reaction to it as follows: “[I]t’s a very serious school and they don’t let him go out. They monitor them more closely and all his siblings have gone there. And I was very happy with the school, but [appellant] did not like that school.” After that, appellant was placed in another school in San Bruno, but Maura stated neither she nor appellant liked that school. Asked if she made him attend that school, Maura replied, “I brought him there the first time, but I didn’t get a very good impression of the kids there because it looked like it had a lot of gangs and I didn’t want him involved in that.” After that appellant decided he was going to live with his father. Maura stated she did not want him to go to his father’s house, but she allowed him to make the decision about where he was going to live. Asked whether, in her opinion, she did not pay enough attention to appellant in the past, Maura replied, “I pay all the attention I have been able to pay.” Also, Maura stated she would not send appellant back to the school he did not like if he was released to her, but would “request a transfer to a different one, another one that he likes.” However, she admitted she did not have a specific school yet lined up for appellant to attend, saying only that “I need to go to the District and they’ll tell me about one, right?”
Also at the dispositional hearing, the probation officer provided evidence that appellant had achieved only five high school credits and should have about one hundred at this point. Documentation provided by the probation officer showed appellant had a zero G.P.A. as of April 20, 2006, the date of his expulsion. Appellant’s Grade 10 school attendance record showed he had 29 truant days and 12 days of suspension, as well as 5 excused absences, which the court stated was “obviously an abysmal record.”
After argument, the court ordered as follows: “The minor continues as an indefinite ward of the court. . . . And the Court is going to commit the minor to a six-month regular program at the ranch. I want to point out that the mother . . . stated among many other things, and again, I’m basing my decision on the totality of the record before me, but I’m just pointing out by way of example. Question was asked of her at the October 3rd hearing, ‘If [appellant] is permitted to come back home and live with you, what is it you will do to make sure that [he] attends school regularly?’ Again, keep in mind . . . [appellant] has got a total of five credits. . . . And she answered, ‘Well, what I’ve always done. Take him to school and be in contact with the school. . . . [¶] She also was asked by the Court, ‘Okay, ma’am, the question is whether in your opinion in the past you did not pay close enough attention to your son? . . . And she answered, ‘I pay all the attention that I have been able to pay.’ [¶] It’s clear that whatever attention . . . that hasn’t been enough attention. And she stated she will do what she has always done. [¶] So the Court’s order is that [appellant] is committed to the ranch for six months.”
Discussion
We review the juvenile court’s disposition order for abuse of discretion. (In re Khamphouy S. (1993) 12 Cal.App.4th 1130, 1135.) All reasonable inferences are drawn to support the court’s decision, and its findings will not be disturbed if supported by substantial evidence. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1330.) Although we must “examine the evidence presented at the disposition hearing in light of the purposes of the Juvenile Court Law,” (In re Michael R. (1977) 73 Cal.App.3d 327, 333), we do not “determine what we believe would be the most appropriate placement for a minor. This is the duty of the trial court, whose determination we reverse only if it has acted beyond the scope of reason. [Citation.]” (In re Khamphouy S., supra, 12 Cal.App.4th at p. 1135.) In this regard, issues of fact and credibility are matters for the trial court alone. (In re Amy M. (1991) 232 Cal.App.3d 849, 859-860.) In sum, the juvenile court’s broad discretion to fashion a dispositional order in accordance with the minor’s best interests will not be disturbed absent a clear abuse of that discretion. (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1227.)
Appellant contends the juvenile court’s order removing appellant from his parents’ physical custody and placing him in the OAYRF was an abuse of discretion “because there was no substantial evidence . . . that the parents were incapable or had failed to provide proper care, that appellant had failed to reform while on probation and that appellant’s welfare required this measure.” In addition, appellant asserts the court abused its discretion “by relying on behavior that preceded appellant’s probation,” namely the failure to earn the appropriate number of school credits. We disagree on both points.
In the first place, there was no doubt appellant could not return to his father’s home. All parties, including appellant’s trial counsel, agreed that appellant should not be returned to the father’s home after father’s testimony he was in fear of his son. Rather, as the juvenile court put it, the only two options were whether “the minor be allowed to go back with his mother, to live with his mother, or go to the ranch as is being recommended by probation.” The record contains substantial evidence to support the juvenile court’s decision that the most appropriate placement was a six-month commitment to OAYRF, rather than being sent back to live with his mother.
The record shows appellant was expelled from Hillsdale High School in San Mateo for his violent and threatening behavior towards staff. Appellant was sent to another school which his mother said she liked because it’s a “serious school” where students are closely monitored. Yet she bowed to appellant’s wishes not to attend that school, but sent him to another in San Bruno. Again, she did not insist he attend because she did not “get a very good impression of the kids there because it looked like it had a lot of gangs.” The mother admitted she allowed appellant to make the decision to live with his father, even though she did not think it was a good idea. Also, she stated with regard to her supervision of appellant in the past that she paid “all the attention I have been able to pay.” Further, she acknowledged she did not have a school lined up for appellant because she would not send him back to one he did not like All this, viewed in the light of appellant’s zero G.P.A. and “abysmal” school attendance record, readily supports the juvenile court’s inference that appellant’s past pattern of poor school performance and attendance would likely continue unabated if he was returned to his mother, and therefore it was necessary to subject appellant to a more structured environment.
Nor does the record support appellant’s assertion the juvenile court’s decision was based entirely on poor school performance predating his probation. As previously noted, the court stated at the dispositional hearing: “I’m basing my decision on the totality of the record before me. . . .” Moreover, the record contains substantial evidence that appellant’s performance on probation was poor and a more structured environment was warranted. Appellant flouted the rules against cell phone use at Diablo Community Day School and when caught in the act refused to hand over the cell phone to either a teacher or the school principal. Rather, he cursed and behaved aggressively towards the teacher, Mr. Becker. When the principal tried to reason with appellant, and explained his cell phone would be returned at the end of the day if he handed it over, appellant still refused to accede. His response was, “Fuck this, I’m out of here.” Moreover, appellant also had a confrontation with his father about cell phone use. He refused to hand his cell phone to his father, but instead threw it on the ground. Indeed, his response put his own father in so much fear that father slept with his bedroom door barricaded for a week. In sum, the record contains clear and substantial evidence supporting the juvenile court’s disposition to a more structured environment. It is also clear from the evidence adduced above that the juvenile court’s disposition is supported by the record as a whole and was not based solely on appellant’s poor pre-probation school performance.
Because we conclude the juvenile court’s dispositional order is supported by substantial evidence on the record as a whole, including appellant’s performance while on probation, appellant’s constitutional claims (based on the contention the juvenile court’s decision was based on pre-probation conduct) must fail. In any case, appellant waived any such constitutional arguments by failing to raise them before the court below. (In re Brian K. (2002) 103 Cal.App.4th 39, 42 [“Because Brian K. did not raise a due process objection in the trial court, he may not raise it for the first time on appeal”]); see also In re Josue S. (1999) 72 Cal.App.4th 168, 172-173 [waiver principles are applicable to juvenile court dispositional hearings regarding probation]; People v. Rodrigues (1994) 8 Cal.4th 1060, 1116, fn. 20 [defendant’s federal constitutional due process, fair trial, reliable guilt determination claims concerning the admissibility of a videotape waived in a capital case when they were not raised in the trial court].)
DISPOSITION
The juvenile court’s dispositional order is affirmed.
We concur: McGuiness, P. J., Siggins, J.