Opinion
A145628
01-20-2017
In re Juan T., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. Juan T., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. JW11-6128)
Appellant Juan T. appeals from a contested dispositional order of the juvenile court committing him to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities ("DJF") for a maximum term of confinement of six years and six months. The disposition is the culmination of lengthy juvenile wardship proceedings brought under Welfare & Institutions Code section 602, involving a prior petition sustaining two counts of sexual battery Juan had committed at age 12 (Pen. Code, § 243.4, subds. (a) & (e)), followed by a new petition while Juan was still under wardship, and was by then 15 years old, charging him with second degree robbery (id., § 211) and misdemeanor vandalism (id., § 594, subd. (b)(1)) which allegations also were sustained.
The appeal is authorized by Welfare and Institutions Code section 800.
Juan's court-appointed attorney filed a brief raising no issues and asking this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Juan was advised of his right to file a supplemental brief by his attorney and filed no supplemental brief. This court reviewed the entire record, as supplemented by a transcript of proceedings determined to be missing from the record originally transmitted to this court, directed supplemental briefing on a limited number of questions, and we now affirm.
That was the transcript of proceedings held on the morning of June 22, 2015, the second day of the disposition hearing.
BACKGROUND
On March 17, 2011, the San Francisco District Attorney filed a juvenile wardship petition pursuant to Welfare and Institutions Code section 602(a) concerning Juan, then 12 years old, alleging, as amended, that Juan had illegally possessed marijuana and had committed multiple sexual offenses against two other children. Shortly thereafter criminal proceedings against him were suspended because Juan was declared incompetent, due both to developmental immaturity and mental health issues stemming from his traumatic and harsh upbringing. By then, he was also in the dependency system.
Unless otherwise noted, all further statutory references are to the Welfare and Institutions Code.
Juan was born to a crack-addicted teenage mother who was in and out of juvenile hall, county jail and state prison during his childhood. His father was incarcerated too. Juan lived from time to time with his mother in a shelter, and sometimes with his grandparents and reportedly began using marijuana at age 8. He was physically and sexually abused from a young age and grew up in environments where he and his half-siblings were exposed to a great deal of trauma, involving violence, sexual abuse, physical abuse and neglect.
Proceedings remained suspended for two-and-a-half years. During that time, Juan was initially placed in home detention with his grandparents but the placement was revoked after approximately five months. Thereafter, he was placed in various out-of-home settings as a dependent under section 300, each time unsuccessfully, continually getting expelled for aggression and other behavior problems. He spent considerable time in San Francisco's Juvenile Hall in that period, and while there he allegedly assaulted two other minors detained there too which resulted in two new (also suspended) section 602 petitions.
The juvenile court eventually found Juan competent, on December 13, 2013, and shortly thereafter, on January 6, 2014, he entered admissions to two counts of sexual battery alleged in the initial petition, one a felony (Pen. Code, § 243.4, subds. (a), (e)). The remaining counts against him and the two later petitions concerning the Juvenile Hall assaults were dismissed. Wardship was declared, and after an aborted effort to place Juan in an out-of-state program, Juan was placed on probation in the custody of his grandparents, and began living with them on December 5, 2014. By the time of a status hearing a month and a half later, on January 16, 2015, Juan was reportedly doing well on probation and the juvenile court authorized the removal of his G.P.S. monitor.
Less than a month later, on February 10, 2014, the District Attorney filed a new section 602 petition, charging Juan, who was then 15-and-a-half years old, with second degree robbery (Pen. Code, § 211) and misdemeanor vandalism (id., § 594, subd. (b)(1)). The underlying incident involved the theft of an iPhone near a BART station in downtown San Francisco, and damage to the window of a BART train during the assailants' flight from law enforcement officials. Juan was ordered detained, and at a March 24, 2015 contested jurisdiction hearing both counts were found true.
A three-day, contested disposition hearing took place. The probation department recommended a six-and-a-half year commitment to DJF, principally on the ground that prior, less restrictive placements had failed and/or were otherwise unsuitable because of Juan's educational needs and the security risk he posed to others. The probation report described Juan's terrible history of child neglect and abuse, a lengthy history of social services intervention on Juan's behalf, numerous failed placements for him both in state and out of state, and countless incidents of disciplinary problems and aggressive, disruptive behavior while Juan was detained at Juvenile Hall and elsewhere. In addition, it documented a history of Juan absconding from various placements over the years.
In May 2011, Juan cut off his GPS monitor and absconded from his grandmother's custody, later the same year he absconded from an out-of-home placement (Teen Triumph), and in 2013, he absconded from a residential treatment facility in Utah, was detained and then ultimately returned to California.
The defense advocated, and presented evidence in favor of, a less restrictive placement within San Francisco's local juvenile justice system, such as a brief confinement to Juvenile Hall (for no more than six months with credit for time served) followed by a "step-down" to a less restrictive placement at San Francisco Unified School District's Log Cabin Ranch school or other local program, with intensive counseling and other services.
Juan had documented special education needs, due to a disability for "emotional disturbance." Although he had no cognitive learning issues, and is very bright, he had social and emotional issues that were impacting his ability to learn. By the time of the disposition hearing, his most recent individual education plan ("IEP") called for a nonpublic school education during periods that Juan was not incarcerated. Given Juan's mental health issues, educators concluded he needed "a highly-structured environment to meet his academic and emotional/behavioral needs," because "[h]e can be extremely volatile and aggressive verbally and potentially physically." Juan's IEP identified several areas of "social-emotional" needs, and called for specialized academic instruction entailing "co-teaching with a special education teacher in the regular education classroom" while in juvenile court school, individual mental health counselling and other components.
He had been enrolled in a nonpublic high school before his most recent detention, at the Rise Institute.
At the disposition hearing, two prosecution witnesses addressed Juan's special educational needs. One was Doug Ugarkovich, a 26-year employee of DJF who had worked his way up from correctional officer to a court and community liaison now responsible, among other things, for reviewing referral packets for incoming youth to ensure that any special education needs they had were adequately addressed. Ugarkovich described the educational resources available at DJF. He testified that 30 to 35 percent of the youth committed to DJF are classified as needing special education services. According to Ugarkovich, those youth are taught in the same classrooms as others at DJF but "may be receiving additional services. More individual based upon their needs, but they'll be in the classroom." Although he provided no details, Ugarkovich testified that DJF can accommodate youth with IEPs based on social and emotional issues. He didn't know whether any of DJF's special education youth had IEPs calling for a nonpublic school, or whether DJF could accommodate youth with a nonpublic school designation.
Chris Lanier, the principal of court schools within San Francisco Unified School District, including both the school at Juvenile Hall and Log Cabin Ranch, testified that Log Cabin Ranch could not meet JT's documented special education needs. Youth at Log Cabin Ranch do receive mental health counselling when needed, from an organization called Special Programs for Youth ("SPY") that visits on nearly a daily basis. But Log Cabin Ranch does not have any special education teachers to assist in the classroom; it has only two general education teachers with no background in special education (one teaching math and science, and the other teaching social studies and English). He testified Log Cabin Ranch wasn't equipped to provide social/emotional services within the classroom, unlike in a nonpublic school setting where staff would be "trained to focus on those things as well as academics", and unlike the court school Juan attended while detained at San Francisco Juvenile Hall. Lanier testified Log Cabin Ranch does have special education services but only for students with "moderate to mild" learning disabilities. Those special education services are academic-based only, provided by a paraprofessional who works for the special education department but is not a certified teacher, and sometimes also by a "floating" special education teacher who acts as a "content specialist," visiting the school to help to write IEPs for students who need them. Log Cabin Ranch had no students with IEPs for social/emotional issues, and had never had any for at least the two years that Lanier had worked there. According to Lanier, Log Cabin Ranch is a "very small program," currently with only 12 or 14 students.
Educational needs aside, Lanier also expressed safety concerns for other students at Log Cabin Ranch, because while attending Juvenile Hall court school, Juan had been involved in three assaults in the classroom during the last school year, including a recent, unprovoked attack on another student just the prior month that injured both the student (whom Juan had beaten in the face) and a teacher standing nearby. These incidents occurred even though counsellors are in the classrooms there at all times to ensure classroom safety. And unlike the court school at Juvenile Hall, Log Cabin Ranch doesn't place youth counsellors inside the classrooms, but instead posts them outside the classrooms in case of any disturbances. Even Juan's own expert witness on juvenile sentencing, Nisha Ajamani of the Center on Criminal Juvenile Justice in San Francisco, admitted that safety was "a very valid concern" with placing Juan at Log Cabin Ranch and "should be considered," given his history of assaultive behavior and his AWOL history.
Log Cabin Ranch is a medium security institution, unlike both San Francisco's Juvenile Hall where Juan had been detained which is a high security institution and DJF which is the highest security institution available for juveniles in the state. DJF is staffed with both correctional officers and youth counselors, the latter serving predominantly in the living units. Among other things, Log Cabin Ranch is not a physically secured facility, and just two weeks before Juan's disposition hearing another youth had absconded from it. In addition, Log Cabin Ranch has open-room dormitory housing (12 beds per dormitory) where the youth committed there are free to roam between beds. By contrast, at two of DJF's three facilities, the youth are housed in individual rooms not dormitories, and in the third facility, they're housed in open dormitories but under close guard surveillance.
Juan had been housed in the high security unit at San Francisco Juvenile Hall, its Unit 7, where he lived with 15 to 20 other youth.
At the conclusion of the hearing, on June 24, 2015, the juvenile court carefully considered its options and, adopting the probation department's recommendation, committed Juan to DJF for a maximum period of confinement of six years and six months. It also imposed a $110 restitution fine.
The court rejected Log Cabin Ranch because of Juan's special education needs. We quote its ruling in full on this issue: "The key thing the Court has to look at, besides everything I've heard, the W&I Code says and Rules of Court, is basically, education, mental health, potentially substance abuse, the Minor's general welfare. [¶] The Court cannot knowingly send a Minor to a program that it knows cannot meet his needs and his requirements. Hence Log Cabin Ranch School is off the table. [¶] The principal whose [sic] been working here for several years is quite familiar with the program. There's a reason for IEPs and [Juan's] is quite extensive as documented in the exhibit that the Court has read and considered. [¶] And Log Cabin Ranch School, unfortunately, cannot handle or take care of one of the main requirements that the law makes sure, has to make sure is taken care of and the educational component cannot be handled by Log Cabin Ranch School. So that is not an option. [¶] And the Court doesn't feel it can just knowingly try to force the square peg into the round hole and try to make Log Cabin Ranch School change their policies and procedures in terms of making them assign a special ed teacher to their program to accommodate this one person. So, Log Cabin Ranch School is not an option."
This timely appeal was filed on June 30, 2015.
DISCUSSION
I.
Jurisdictional Findings
There is no reason appearing in the record to doubt Juan was competent to stand trial since the time the juvenile court found him competent to do so in connection with the prior sustained petition.
In addition, substantial evidence supports the juvenile court's jurisdictional findings that Juan committed the charged offenses of second degree robbery and vandalism. In his testimony at the jurisdictional hearing, Juan admitted kicking out the BART train window which constitutes vandalism. (See Pen. Code, § 594, subd. (a).) As for the robbery, Juan admitted grabbing the iPhone out of the victim's hand and although he denied using force, the victim testified he pushed her to the ground when doing so. A witness heard her scream and saw her get up from the ground as her assailants ran away. And although there was conflicting evidence as to the substance of a spontaneous statement Juan made within the earshot of law enforcement officials, one recalled him saying, "Yeah. I pushed her and took her phone. That's how it happened." So there is substantial evidence the theft was "accomplished by means of force or fear," and that it thus constituted robbery. (See Pen. Code, § 211.)
There is no evidence of the timing of the push, i.e., whether the victim was pushed to the ground immediately before or after the phone was snatched, but that is immaterial. "[A] robbery can be accomplished even if the property was peacefully or duplicitously acquired, if force or fear was used to carry it away." (People v. Gomez (2008) 43 Cal.4th 249, 256.)
II.
Disposition
The disposition, moreover, is authorized by law. The maximum term of confinement specified by the juvenile court is authorized by law. And in the circumstances, the order committing Juan to DJF does not constitute an abuse of discretion.
" ' "An order of disposition, made by the juvenile court, may be reversed by the appellate court only upon a showing of an abuse of discretion. . . ." [Citation.] It is not the responsibility of this court to 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.' " (In re J.S. (2016) 6 Cal.App.5th 414, 423.)
In light of the juvenile court's stated basis for rejecting Log Cabin Ranch as an option, and the fact that Juan's court-appointed attorney did not have the benefit of the full record at the time the Wende brief was filed, we requested supplemental briefing on several questions. First, we asked whether the court's finding that Log Cabin Ranch cannot meet Juan's special educational needs was legal error in light of California Education Code section 56150, or any other provision of state or federal law governing the provision of special education services to incarcerated youth. Second, we asked whether the court's finding was supported by substantial evidence and whether there is substantial evidence that DJF can better meet Juan's educational needs. Finally, we asked whether the dispositional order must be reversed and/or remanded if any answer to our questions is no.
That provision states: "Special education programs authorized by this part shall be provided, pursuant to Section 48645.2, for individuals with exceptional needs who have been adjudicated by the juvenile court for placement in a juvenile hall or juvenile home, day center, ranch or camp, or for individuals with exceptional needs placed in a county community school pursuant to Section 1981." (Ed. Code, § 56150; see also §§ 48645.2 [governing the administration and operation of juvenile court schools], 48645.1 [defining juvenile court schools].)
Having reviewed the parties' briefs, we conclude that substantial evidence does support the court's determination that Log Cabin Ranch cannot meet Juan's educational needs and its implied finding, by contrast, that DJF can better meet those needs. In addition we find it unnecessary to decide the legal impact, if any, of Education Code section 56150 because we agree with the People who contend, in effect, that any error by the juvenile court in failing to take into account any mandatory duty by Log Cabin Ranch to provide appropriate staffing to meet Juan's special education needs (assuming for argument's sake there is one) would be harmless in light of this entire record.
Substantial evidence, too voluminous to detail here, supports a determination that Juan would probably be benefitted by the commitment to DJF and that less restrictive alternatives would be ineffective or inappropriate. (See § 734; In re M.S. (2009) 174 Cal.App.4th 1241, 1250.) That evidence includes, but is not limited to, the probation department 's disposition report we have described and the testimony of probation officer Lisa Smith who described, among other things, Juan's extensive placement history and the probation department's inability now to find him a suitable out of home placement. In addition, there was testimony by DJF official Doug Ugarkovich, who described the mental health services and re-entry programs available for youth committed to DJF, opined that DJF could accommodate the special educational needs of youths like Juan who have IEPs based on emotional and social difficulties, and described the resources available for special education students committed there. And unlike Log Cabin Ranch, DJF does provide additional special education services to students in the classrooms when needed.
By contrast, there was substantial evidence the Log Cabin Ranch was inappropriate. Again, we refrain from fully summarizing it but note Lanier's testimony that Log Cabin Ranch couldn't meet Juan's special education needs outlined in Juan's IEP because Log Cabin Ranch has no staff trained to focus on the kind of social/emotional needs his IEP identified. And as noted, he also was concerned for the safety of other youths there given Juan's history of disruptive and violent behavior at Juvenile Hall and elsewhere, including most recently the unprovoked attack on another youth in a classroom at Juvenile Hall, a week before the disposition hearing was scheduled to commence, in which both the youth and a teacher were injured. In addition, given Juan's history of absconding from other placements, and his long history of assaultive behavior, a commitment to a higher security facility was well within the juvenile court's discretion. The juvenile court also found the defense proposal for a lesser placement "light on specifics[,] [a]nd with this Minor we need specifics." In addition, there was extensive evidence from the probation department, already noted, that less restrictive placements had already been tried, and failed. In these circumstances, we cannot say that any error in evaluating the educational adequacy of Log Cabin Ranch was prejudicial.
We are not unmindful of the factors that could be argued to weigh against a DJF commitment, which we refrain from detailing fully but the juvenile court appropriately considered. Chief among them, there was Juan's deplorable and traumatic childhood. And his desire to remain near San Francisco so he could maintain contact with the adults who had been important supports in his life including perhaps most importantly his grandfather, who is his only real family and who testified movingly at the dispositional hearing about the emotional toll that years of detention has taken on Juan. And there was professional opinion that Juan had been over-institutionalized already through long periods of detention, and would be much better served in a less institutional setting, particularly when the alternative was placement among some of California's most serious juvenile offenders, many of them recidivists, in a setting where gang activity is prevalent. Juan has faced incredibly tough challenges in his young life, dare we say heartbreaking. And no doubt a commitment to California's most restrictive facility for youthful offenders may present him with additional challenges to come as he undertakes, with the aid of professionals there, to try to turn his life around. This young man has suffered immensely in his life, and has serious emotional needs. That we, or for that matter the trial court, have sympathy for Juan, however, does not mean he could safely be placed in the less restrictive setting of Log Cabin Ranch.
For example, recounting one incident shortly after Juan was returned home to him, Juan's grandfather described waking Juan from sleep only to have Juan "jump[] straight out of the bed in a very, very aggressive way coming at me and [shout] 'Motherfucker. I'll kill you,' this and that. 'Juan! Juan! It's me. Grandpa. Juan. It's me. Grandpa.' And when he finally got his bearings, 'Oh, grandpa.' He hugged me and tears running down his eyes and it moved me. I was very disturbed by that saying, 'Lord, what have they done to my grandson?'" --------
Juan at all times was represented by able counsel who protected his rights and interests.
Our independent review of the record has revealed no additional arguable issues that require further briefing.
DISPOSITION
The judgment, including the disposition, is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
MILLER, J.