Opinion
F078034
11-20-2019
In re JOHNNY C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JOHNNY C., Defendant and Appellant.
Arthur L. Bowie, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JW132590-11)
OPINION
THE COURT APPEAL from an order of the Superior Court of Kern County. Louie L. Vega, Judge. Arthur L. Bowie, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Smith, J.
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The court committed appellant Johnny C. to the Kern Crossroads Facility after it found true allegations that he violated his probation. (Welf. & Inst. Code, §§ 602/777.) On appeal, appellant contends the evidence is insufficient to sustain the court's finding that he violated probation. We affirm.
FACTS
Appellant had numerous charges sustained in prior petitions and had been on probation since June 2014. On January 11, 2018, while in custody, appellant was found in possession of a cutting instrument.
On January 19, 2018, the Kern County District Attorney filed a supplemental petition No. 132590-10 (petition 10) charging appellant with manufacturing a weapon while confined in a penal institution (Pen. Code, § 4502, subd. (b)/count 1) and violating his probation (Welf. & Inst Code, § 777, subd. (a)(2)). Although the record is unclear, appellant apparently admitted the allegations on that date.
On February 21, 2018, at a continued disposition hearing on petition 10, the court discussed with the parties releasing appellant from custody and ordering him to attend the Homeboy Industries Program in Los Angeles. Appellant's mother (mother) told the court that she, her husband and appellant would move to Los Angeles to allow appellant to participate in the program. After a break during which the court contacted someone from Homeboy Industries and verified that the address mother provided was near there, the court ordered appellant released to mother's custody and it ordered appellant to participate and complete any and all programs as directed by Homeboy Industries. The court also ordered that all prior orders that were not specifically set aside or modified were to remain in full force and effect.
On June 30, 2014, appellant was ordered to attend school regularly and obey school rules.
On July 17, 2018, the probation department filed a memorandum alleging appellant, who was then 17 years old, violated his probation by failing to attend Homeboy Industries and failing to attend school regularly.
Appellant turned 17 in March 2018.
On July 23, 2018, appellant was arraigned on a supplemental petition alleging he violated his probation as noted above.
On August 30, 2018, during a probation violation hearing, mother testified appellant first attended Homeboy Industries on February 22, 2018. Mother took appellant to the program every day for the first three weeks. After that, she took him to the program two to three times a week until May 2018. Mother had planned to move to Los Angeles to her mother-in-law's house so appellant could attend the program. That did not work out, however, because her husband's stepfather, who had molested her husband when he was a child, was living at the house. Nevertheless, even though traveling to Homeboy Industries from Bakersfield involved a four-hour drive round trip, mother drove appellant there until she began running out of money. In July 2018, she again tried to take him there, but she was informed he was no longer in the program. Mother acknowledged that appellant did not have permission to leave the program and did not complete it.
Mother claimed she was unaware of this at the February 21, 2018, hearing because her mother-in-law had hidden this from her.
According to mother, it cost $40 per day for gas to take appellant from Bakersfield to Homeboy Industries in Los Angeles.
Mother testified she tried to enroll appellant in school 50 times but could not recall any of the dates except February 26, 2018, when she tried to enroll him at Bakersfield High School and was told she could not enroll him there because of his criminal record. However, he could participate in home studies, but he needed a referral from probation because he was in Homeboy Industries. At the end of February 2018, mother called appellant's probation officer, Cynthia Aguirre, and was told to try to enroll appellant in "Bridges." Mother told Aguirre she could not put him in Bridges because he would not be able to attend Homeboy Industries and that she needed a referral to place appellant in home studies so appellant could also do his program. Aguirre told mother she would look into it and get her a referral. After not receiving one, mother called Aguirre and was told appellant's case had been transferred and that "they would be getting [her] the referral."
In March 2018, appellant's case was transferred from Aguirre to Probation Officer Arturo Cervantes.
Mother testified that on May 7, 2018, during a home visit, Cervantes informed mother appellant needed to be in school. Mother asked him for a referral and he told her he would get back to her. However, she never received a referral from Cervantes even though she asked him for one three more times and at that point she decided to try to home school appellant.
On May 15, 2018, Cervantes had an office conference with appellant and mother during which he directed her to enroll appellant in school. Mother had not yet enrolled appellant in school because she did not yet have a referral from probation.
Mother further testified that the family lived in Bakersfield until June 15, 2018, when they moved to Hoopa in Humboldt County. Since that date she had been back and forth to Bakersfield for a trial involving another son. She checked with probation about the move and was told it was fine provided appellant checked in with probation when he came into town. Appellant also received permission to work in Hoopa.
After his release on February 21, 2018, appellant did not enroll in or attend school until June 20, 2018, when mother enrolled him in the Community Connections Academy (Academy) in Hoopa, an online school, because it was the only school she could enroll appellant in and it would allow him to do online schooling. According to mother, appellant had done his pretests for the school at the Hoopa library and he was scheduled to start school the following Tuesday, September 4, 2018. However, during cross-examination, the district attorney introduced an email from an Academy school counselor, dated August 29, 2018, that indicated appellant had not completed his enrollment at the school. When asked about the email, mother testified that appellant's enrollment would be complete once she printed one last paper, signed it, and returned it that day. Mother never provided enrollment information to the probation department or informed the department that appellant had enrolled in the Academy.
Cervantes testified he began supervising appellant in March or April 2018. Appellant's probation conditions required him to attend and complete Homeboy Industries. During the May 7, 2018, home visit he asked appellant and mother about Homeboy Industries and they both said he had been attending and continued to attend. Cervantes reminded them appellant needed to continue to attend because it was an order of the court.
Cervantes also asked appellant if he was attending school and appellant stated he was not. Cervantes told appellant he needed to enroll. Appellant replied that he had been enrolled in the Kern High School District, but he would not attend a continuation school because it was not good for him as he would just get in trouble.
On May 15, 2018, during the office conference, Cervantes reviewed with appellant and mother appellant's terms and conditions of probation and Cervantes again directed him to enroll in school. Additionally, mother advised Cervantes they would be moving to Hoopa as of May 21, 2018, so Cervantes did not give her a referral because they no longer would be in Kern County.
Sometime after contacting the program on May 9, 2018, Cervantes received a log that showed appellant had attended the Homeboy Industries program only once.
On June 26, 2018, during a home visit, Cervantes advised appellant and mother that he had received documentation from Homeboy Industries that appellant had attended the program only once and that Cervantes would be filing a violation of probation. During a private conversation, appellant told Cervantes he had been attending the program and had attended approximately six to seven times. Cervantes never received any information from appellant or mother showing that he was enrolling in the Academy.
Appellant was required to check in with Cervantes on the 1st and 15th of every month and every time he left or returned to the county. He generally complied with checking in twice monthly and he seemed to comply with the requirement that he report every time he left or returned to the county.
Aguirre never spoke with Cervantes about a referral for appellant and neither appellant nor mother ever asked Cervantes for one. Nevertheless, he knew appellant needed a referral because Kern County required a probation department referral for a student to enroll in a continuation school. A referral, however, was not needed to attend Bakersfield High School. If Cervantes had known appellant was going to stay in Bakersfield, he could have done something to help appellant sign up for school or attend Homeboy Industries but during the office conference he was informed appellant and his family were moving to Hoopa the following Monday, May 21, 2018.
Mother testified for the defense that the first day she met Cervantes she asked him for a referral to attend Blanton, a continuation school, or any school that would have allowed appellant to do home studies, so he could attend Homeboy Industries. However, she admitted she did not need a referral from probation to attend Bakersfield High School, but according to mother, because of appellant's criminal record the Kern High School District wanted appellant to enroll in a continuation school. Mother tried to enroll him in a continuation school, but she was told appellant needed a referral from probation because it was midyear.
This contradicted her earlier testimony that she could not enroll appellant in home studies through Bakersfield High School because she did not have a referral from probation. --------
After hearing argument, the court found appellant violated his probation by not attending school regularly and not completing the Homeboy Industries program. In doing so, it noted that appellant could have enrolled in a continuation school but refused to.
The court then proceeded to disposition, set appellant's maximum term of confinement at eight years and committed appellant to the Kern Crossroads Facility.
DISCUSSION
Appellant contends his failure to attend and complete the Homeboy Industries program was not willful because he was not responsible for the living arrangements in Los Angeles falling through or his mother's financial inability to transport him from Bakersfield to the program, and he had no control over his family's move to Hoopa. He contends his failure to attend school was not willful because he did not have the ability to enroll himself in school and his failure to attend was also based on circumstances beyond his control. Thus, according to appellant the evidence is insufficient to support the court's finding that he violated his probation because no substantial evidence supports a finding that he willfully refused to attend, participate and complete the Homeboy Industries program or that he willfully refused to attend school. We disagree.
"A court may revoke probation 'if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation ....' ([Pen. Code,] § 1203.2, subd. (a).) 'As the language of [Penal Code] section 1203.2 would suggest, the determination whether to ... revoke probation is largely discretionary.' [Citation.] '[T]he facts supporting revocation of probation may be proven by a preponderance of the evidence.' [Citation.] However, the evidence must support a conclusion the probationer's conduct constituted a willful violation of the terms and conditions of probation." (People v. Galvan (2007) 155 Cal.App.4th 978, 981-982.) "The terms 'willful' or 'willfully,' as used in penal statutes, imply 'simply a purpose or willingness to commit the act ...,' without regard to motive, intent to injure, or knowledge of the act's prohibited character. [Citation.] The terms imply that the person knows what he is doing, intends to do what he is doing, and is a free agent. [Citation.] Stated another way, the term 'willful' requires only that the prohibited act occur intentionally." (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1438.)
"[W]here the trial court was required to resolve conflicting evidence, review on appeal is based on the substantial evidence test. Under that standard, our review is limited to the determination of whether, upon review of the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which will support the trial court's decision. In that regard, we give great deference to the trial court and resolve all inferences and intendments in favor of the judgment. Similarly, all conflicting evidence will be resolved in favor of the decision." (People v. Kurey (2001) 88 Cal.App.4th 840, 848-849.)
The evidence at appellant's probation violation hearing established that he attended Homeboy Industries at most seven days and that he did not complete the program. It also established that from his release from custody on February 21, 2018, through the date of his probation violation hearing, appellant did not attend and was not enrolled in school. Thus, the record supports the court's finding that appellant did not comply with his conditions of probation.
Mother experienced trouble getting appellant to Homeboy Industries because she was unable to move to Los Angeles and the time and expense of driving appellant to the program in Los Angeles became prohibitive. Additionally, appellant's record made it hard for him to enroll in school because his criminal history precluded enrollment in a regular school program and he needed a probation referral to attend a continuation school. However, appellant was 17 years old and presumably familiar with his obligations as a probationer from having been on probation since June 2014. Appellant knew how to contact Cervantes—he checked in with him regularly twice a month prior to moving to Hoopa—and he met with him in person three times. However, even though appellant's case was assigned to Cervantes as early as March 2018, appellant never advised Cervantes he was having trouble complying with his probation conditions or asked him for help. Instead, during the May 7, 2018, home visit, he falsely told Cervantes he had been attending and continued to attend Homeboy Industries. Appellant also admitted that he refused to attend a continuation school because he thought he would get in trouble.
Indeed, some circumstances out of appellant's control impeded his ability to comply with his probation conditions. Nevertheless, the court could reasonably find from the above circumstances that appellant's failure to attend and complete the Homeboy Industries program and enroll and attend school was willful. Accordingly, we reject appellant's contention that the evidence was insufficient to sustain the juvenile court's finding that he violated his probation.
DISPOSITION
The order is affirmed.