Opinion
2d Juv. No. B291894
02-05-2020
In re K.S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. K.S., Defendant and Appellant.
Mary Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and Peggy Z. Huang, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. TJ22080)
(Los Angeles County)
K.S., a minor born in 2002, became a ward of the juvenile court in 2016 after admitting two felony assaults. (Welf. & Inst. Code, § 602.) She appeals from an order committing her to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ).
Unlabeled statutory references are to the Welfare and Institutions Code.
We conclude that the court did not abuse its discretion by sending K.S. to DJJ after she violated probation three times. She was removed from a group home for assaulting peers. In a camp program, she engaged in gang fights and attacked two probation officers. Her repetitive violence and refusal to accept counseling support the court's finding that placement at DJJ is necessary for K.S.'s welfare and public safety. We affirm.
FACTS AND PROCEDURAL HISTORY
Two delinquency petitions were filed against K.S. in 2015. The first alleged assault with a deadly weapon when K.S. was 12 years old. The second alleged assault by force likely to produce great bodily injury at age 13; she personally inflicted great bodily injury, making the offense a serious felony. (Pen. Code, §§ 245, subd. (a)(1), (4), 12022.7, subd. (a).)
At the jurisdiction hearing on January 22, 2016, the court stated that the first petition arose when K.S. cut a person who was trying to retrieve a stolen cell phone. The second petition involved K.S. kicking or beating someone into unconsciousness. K.S. admitted all allegations. The court sustained the petitions, as felonies. K.S. was released to her family pending disposition; however, a February 2016 probation report stated that her truancy from school violated the terms of her release.
K.S. was declared a ward of the court at disposition. The Department of Children and Family Services (DCFS) was named lead agency and directed to find a suitable placement. K.S. was a dependent of the court (§ 300) because her mother and stepfather were arrested for engaging in violent physical altercations. K.S.'s natural father was unwilling to care for her due to her aggressive behaviors.
K.S. was placed in a group home. In April 2016, a deputy probation officer (DPO) reported that K.S. refused to participate in counseling. She was angry that DCFS placed her in a group home and was disrespectful toward staff. A new dependency petition was sustained because K.S.'s stepfather stabbed K.S.'s sibling in the neck.
A July 2016 report states that K.S. did not attend school or participate in counseling, threatened staff at her group home and committed vandalism. In August 2016, K.S. instigated a fight and hit a resident at her placement. She was belligerent, defiant and threatened to call up "my homies."
In September 2016, the DPO filed a notice of probation violation. (§ 777.) K.S. refused to participate in group and individual therapy, complete community service or attend school; she engaged in verbal conflict, used profanity and threatened teachers at school and staff at the group home. She was removed from the group home for assaultive behavior toward peers. K.S. admitted violating probation. She was placed with her grandmother and they both refused to accept referrals to counseling and anger management services.
In June 2017, a second notice of probation violation alleged that K.S. missed school 50 times, was failing classes, did not complete community service, and was not participating in mental health counseling. K.S. admitted the violation and was detained. In August 2017, she was placed in a camp-community program (Camp Scott) for a five- to seven-month term. The probation department replaced DCFS as lead agency.
K.S. did not adjust well to Camp Scott. She established poor relationships with peers, teachers and staff. She had a physical altercation with a peer; was cited for "a near fight"; participated in a late-night disturbance; argued; tagged gang graffiti; and threatened to have her family attack camp staff.
In December 2017, the DPO reported that K.S. disobeyed school and probation staff and was written up for failing to follow instructions, inappropriate language and fighting. She was suspended from school and accrued penalty days for bad behavior.
A third probation violation notice, filed in February 2018, alleged that K.S. punched a DPO in the mouth with a closed fist during a dining hall melee. On the way to detention afterward, she began yelling that she would not go. A second DPO gave her a "touch prompt on her right shoulder" to convince her to go. Without warning, K.S. struck his neck, punched his shoulder with a closed fist, then ran away. The DPO was taken to the hospital for examination.
In March 2018, the DPO informed the court that K.S. was written up five times since December. She engaged in self-harm by hitting a wall with her head and fists, gang activity, disruptive behavior, fighting, inappropriate language, and assaulted and injured a DPO. K.S. was detained in juvenile hall.
At a contested hearing on April 3, 2018, a DPO who supervises the camp dining hall testified that two residents began trading insults, whereupon "the giant fight occurred." K.S. lunged toward the melee. The DPO extended his arms and told her to stop and calm down; she punched him in the mouth, then apologized. He stated that K.S. has had many behavioral incidents and some gang-related fights. A second DPO testified that as he escorted K.S. to detention after the fight, she struck his neck with her elbow then punched his shoulder.
K.S. testified that she was not trying to join the melee but sought to assist a female DPO who was being hit. She admitted hitting the DPO who stopped her but denied striking the second DPO. She admitted to engaging in gang fights at camp. The court found that K.S. violated probation.
In late April 2018, the DPO reported that K.S. continued to be written up in juvenile hall. She would not follow simple instructions, was oppositional with staff members, and disrupted her class by talking, using profanity and acting defiant. Disposition was delayed while K.S. underwent psychological evaluation. (Evid. Code, § 730.)
The evaluation states that K.S. has had anger management issues since the fourth grade. She began using marijuana at age nine, alcohol at age 10, and suffered sexual abuse, domestic violence at home and parental absence. She needs ongoing psychotherapy to address emotional issues associated with abuse, depression, anxiety and anger.
At disposition on June 13, 2018, the People asked the court to commit K.S. to DJJ, for public safety. The D.A. argued that during her wardship, K.S. has been aggressive and assaultive, ultimately harming two DPO's; her recent good behavior is a ruse to avoid continued detention, not an indication that she has changed. At DJJ she will have extra resources for mental health, including weekly contact with full-time psychologists to provide cognitive therapy, monitor treatment progress, and address any history of trauma, abuse and neglect.
Defense counsel argued that K.S. is making tremendous progress, is "ready to stop the nonsense" and should be returned to her grandmother's care. In rebuttal, the court was advised that K.S.'s behavior is worsening. On June 7, a week before the hearing, K.S. made gang threats against a student; later that day, she refused to line up and threatened "to piss in a cup and throw it at somebody. Wait. No. I'm going to get two cups instead." On June 8, she possessed contraband.
The Court's Findings and Order
The court based its ruling on K.S.'s entire case file, mental health evaluation, and information that K.S. made gang-related threats a week earlier. The court stated that K.S. committed felonies at ages 12 and 13. Her placements failed because she needs structured supervision. She has "very serious deeply ingrained anger issues that she continues to repetitively respond to in a violent way, and that's a problem." She threatens adults at school and in her placements when they attempt to exert authority over her.
The court cited K.S.'s "escalation of violent behavior" to explain its belief that "dire means are required in order to provide the necessary service for the minor." It rejected the probation department recommendation of a new camp program because K.S. misbehaved in juvenile hall, which is a far more structured environment than camp. The court found that "it is probable that she will benefit from the reformatory discipline or other treatment provided by the Division of Juvenile Justice. The court particularly finds a need for intensive trauma-informed counseling for this minor" based on the psychological evaluation of K.S.
The court committed K.S. to DJJ. It imposed a maximum confinement time of eight years for the sustained petitions filed in 2015 and for the probation violations in 2016, 2017 and 2018.
We have reviewed the reporter's transcript of the dispositional hearing. The trial court set forth the charges to be sentenced including the enhancement. The maximum aggregate term is eight years; the court erroneously computed eight years and four months.
DISCUSSION
"[T]he juvenile court has long enjoyed great discretion in the disposition of juvenile matters [citation] . . . . " (In re Greg F. (2012) 55 Cal.4th 393, 411.) It has "'maximum flexibility to craft suitable orders aimed at rehabilitating the particular ward before it.'" (Ibid.) We review the placement decision for an abuse of discretion and factual findings for substantial evidence. (In re Carlos J. (2018) 22 Cal.App.5th 1, 5; In re Khamphouy S. (1993) 12 Cal.App.4th 1130, 1135 [decision affirmed unless the court "acted beyond the scope of reason"].)
The purposes of juvenile law guide our examination of the record. (In re Calvin S. (2016) 5 Cal.App.5th 522, 528.) The law states that removal may be necessary for a minor's "welfare or for the safety and protection of the public." (§ 202, subd. (a).) Delinquent minors "shall, in conformity with the interests of public safety and protection, receive care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances. This guidance may include punishment that is consistent with the rehabilitative objectives of this chapter." (Id., subd. (b); In re Eddie M. (2003) 31 Cal.4th 480, 507 [court may choose custodial confinement "to hold juveniles accountable for their behavior, and to protect the public"].)
The matter was before the court on K.S.'s third probation violation (§ 777) while she was a ward of the court for committing two felony assaults. Section 777 allows the court to change a previous order and direct a different placement if the minor is shown at a hearing to have violated a court order. Section 777 proceedings do not involve new violations of criminal law. (In re Eddie M., supra, 31 Cal.4th at p. 506.)
Ample evidence justifies the court's determination "that less restrictive alternatives are ineffective or inappropriate." (In re Teofilio A. (1989) 210 Cal.App.3d 571, 576.) The record shows a pattern of violent behavior over the course of the wardship that did not diminish in severity in three years. Less restrictive alternatives did not curb K.S.'s behavior. Where, as here, a ward has a multi-year history of failed placements, the court may order a DJJ commitment to protect the minor and the public. (In re A.R. (2018) 24 Cal.App.5th 1076, 1080-1082.)
At the outset of the wardship proceeding, K.S. was in the least restrictive setting, with her family, despite two sustained felony petitions for assault. She promptly violated the terms of her release by failing to attend school.
Next, K.S. was placed in a group home. There, she refused counseling; was truant from school; threatened teachers and staff members; instigated a fight; assaulted peers; was defiant and belligerent; and committed vandalism. She admitted to violating probation and was removed from the group home.
K.S. was then placed with her grandmother. This proved ineffective. She was truant from school, refused counseling, and did not complete community service. When forced to attend school, she was disruptive, profane, and threatened her teachers, who were afraid to have her in their classes. She admitted a second probation violation.
K.S. entered a more restrictive setting at Camp Scott. Her misconduct increased. She had physical altercations with peers; participated in a disturbance; engaged in gang activity; and disobeyed school and probation staff. The misconduct culminated in K.S.'s attack on two DPO's during a dining hall melee. The court found a third probation violation.
K.S. was detained in juvenile hall, where she continued to be profane, disruptive and defiant. She made gang threats and threatened to throw urine one week before the hearing that resulted in this appeal.
K.S.'s case is akin to In re A.R., supra, 24 Cal.App.5th 1076. A.R. entered the juvenile justice system at 13, when he admitted a residential burglary. Over the years, he was placed in multiple facilities, including treatment centers and camp, and occasionally was released to home supervision; he engaged in crime and violated probation the entire time. At 18, A.R. committed a robbery and hit the victim. The court sent him to DJJ stating, "'We have tried repeatedly to rehabilitate you. None of those rehabilitative goals have been met . . . .'" (Id. at pp. 1078-1079.)
On appeal, the court found no abuse of discretion in a DJJ commitment, observing that juvenile law protects the public while rehabilitating the minor. (In re A.R., supra, 24 Cal.App.5th at p. 1081.) Substantial evidence supported the court's finding: A.R.'s "history leaves little doubt that less restrictive alternatives have been wholly ineffective in rehabilitating the Minor. The need for a significant change from prior placements is amplified by his age; at 18, there is little time remaining before he faces the adult correctional system." (Id. at p. 1082.)
Substantial evidence demonstrates a probable benefit to K.S. from a DJJ commitment. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) K.S.'s psychological evaluation disclosed long-standing but unaddressed anger issues, beginning in the fourth grade. The evaluation states that K.S. requires ongoing psychotherapy to address emotional problems arising from abuse, parental violence and neglect. Though detained in 2015, K.S. has yet to receive the counseling she requires because she has so far succeeded in her refusals to attend or participate.
K.S. was sent to counseling while at the group home but refused to participate. After being ejected from the group home for assaultive behavior, she lived with her grandmother. They refused referrals to counseling and anger management. At the camp program she fought with peers and attacked two DPO's. In juvenile hall, she continued to be threatening and disobedient. The record does not show she received any meaningful help for her psychological needs in over three years.
K.S. relies on In re Carlos J., supra, 22 Cal.App.5th 1. It is distinguishable. Carlos admitted to an assault with a firearm and a gang enhancement; the court sent him directly to DJJ owing to "'the seriousness of the offense.'" (Id. at pp. 4, 7-9.) The disposition was reversed because there was no substantial evidence of a probable benefit under section 734. (Id. at p. 10.)
Section 734 reads, "No ward of the juvenile court shall be committed to [DJJ] unless the judge of the court is fully satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefited by the reformatory educational discipline or other treatment provided by [DJJ]." --------
Unlike the minor in Carlos J., K.S. was not sent directly to DJJ. Instead, she spent years in less restrictive placements that did not curb the type of assaultive behavior that led to the 2015 petitions. Her attacks on two DPO's at Camp Scott landed one of them in the hospital, prompting the court to focus on K.S.'s repetitive violence and need for "reformatory discipline."
Though the probation department did not recommend DJJ for K.S., this did not prevent the court from finding that a return to camp or her grandmother's home was inappropriate given her failure to succeed in those environments. (In re A.R., supra, 24 Cal.App.5th at p. 1082.) K.S. knew before disposition that the D.A. sought commitment to DJJ. She forfeited her claims about omissions in the probation report and the inadmissibility of the prosecutor's description of services available at DJJ by not objecting at the hearing. (People v. Welch (1993) 5 Cal.4th 228, 234; In re Travis W. (2003) 107 Cal.App.4th 368, 379.)
Years of failed rehabilitative attempts demonstrate that less restrictive alternatives will not suffice for K.S. The parental home, the group home, the grandmother's home, the camp program and juvenile hall were all inadequate. K.S.'s underlying felonies—cutting someone in aid of a robbery and kicking a classmate's head until she lost consciousness—coupled with evidence of continuing assaultive behavior show that K.S. presents a danger to society that has not been mitigated during her wardship. Her behavior requires a high level of supervision and discipline. The court did not abuse its discretion by determining that DJJ is the appropriate environment for K.S. as she reaches the cusp of adulthood.
In supplemental briefing, K.S. argues that the court erred in imposing the minimum $100 restitution fine without finding that she has the ability to pay it. The fine is unaffected by ability to pay. (§ 730.6, subds. (b)(1), (c); In re Enrique Z. (1994) 30 Cal.App.4th 464, 467-469.) K.S. did not claim at the hearing any inability to pay, forfeiting the issue. (People v. Avila (2009) 46 Cal.4th 680, 729; People v. Torres (2019) 39 Cal.App.5th 849, 860. Compare People v. Duenas (2019) 30 Cal.App.5th 1157 [disabled homeless defendant raised her inability to pay fines at sentencing].) No constitutional rights are implicated by counsel's failure to object to the imposition of a fine. (People v. Trujillo (2015) 60 Cal.4th 850, 859-860; Torres at p. 860.)
DISPOSITION
The order committing appellant K.S. to the Department of Corrections and Rehabilitation, Division of Juvenile Justice is affirmed.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
GILBERT, P. J.
YEGAN, J.
Denise McLaughlin-Bennett, Judge
Superior Court County of Los Angeles
Mary Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.