Opinion
A130067
12-29-2011
In re M.L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. M.L., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. C185732)
M.L. (appellant) admitted committing assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). Thereafter, the court adjudged him a ward of the court, ordered his out-of-home placement, and imposed probation conditions. Appellant appeals the dispositional order on the grounds that there was insufficient evidence that he would benefit from an out-of-home placement and that reasonable efforts were made to avoid removing him from his home. We reject the contentions and affirm.
All undesignated section references are to the Penal Code.
The following allegations were dismissed: attempted murder with a knife causing great bodily injury, use of a deadly weapon, and infliction of great bodily injury (§§ 187, 664, 12022, subd. (b), 12022.7); and battery causing serious bodily injury (§ 243, subd. (d)).
BACKGROUND
Shortly after midnight on August 17, 2010, the police were dispatched to a San Leandro address regarding a fight in progress. When they arrived, the police were informed that 17-year-old appellant had stabbed the victim, Duane Collins. Collins said appellant came at him with a knife and threatened to kill him. Collins attempted to flee as appellant came at him and kicked at appellant to avoid being stabbed in the chest and neck. Collins sustained nonlife-threatening injuries to his arm and leg.
Appellant admitted the stabbing. He claimed Collins had earlier threatened his life and the life of his family, and he and Collins got into an altercation. Appellant then left, retrieved a kitchen knife from his apartment, and returned to confront Collins.
At the September 15, 2010 hearing in which appellant admitted the assault allegation, his grandfather requested that appellant be released to his custody. The court responded: "You should speak to the probation officer. I'll tell you, honestly, that it's not likely. With a serious charge like that, he's going to have to do some serious in-custody time."
Probation Department's Intake/Jurisdictional Report
Probation officer Tamara Johnson's August 2010 intake/jurisdictional report noted that this was appellant's second referral to the Alameda County Probation Department. On April 29, appellant was referred for violating section 245, subdivision (a)(1), but the prosecutor did not file a petition due to insufficient evidence. The report noted that appellant's detention on home supervision was not recommended and continuance in the home was contrary to his welfare.
Probation Department's Dispositional Report
Johnson's September 2010 dispositional report related that appellant was diagnosed with a learning disability at an early age. Appellant's mother described him as having a "goofy" personality and said he had not been a behavior problem. Appellant said he needed to be "more serious about school and life." He denied involvement in any street gangs or use of illegal drugs. He said he had a good relationship with his family, especially his mother. There were no negative reports from staff at juvenile hall.
Appellant's criminogenic risk of recidivism was assessed using the Youth Level of Service/Case Management Inventory. Appellant's score of "4" placed him the "Low Category" for reoffending within the next year. His highest ranking criminogenic factors were "Recreation, Peer Relations, Education, and Behavior." The report stated, "[a]ddressing these issues will be part of the supervision plan for this minor." The report also noted that appellant's mother stated she was moving to another house so that appellant and the victim would not associate with each other. She also stated she "believe[d] that [appellant] would respond well to the services that probation has to offer and is willing to offer her assist to [appellant] in efforts to rectify his behavior and exercise better judgment." The report stated: "Even though his crime is very severe, [appellant] admits that he has an anger problem and is willing to get some help. The undersigned will be recommending that [appellant] be placed on formal probation and attend ang[er] management classes, attend school regularly, complete 40 hours of community services and attend WETA and have no contact with victim." The report recommended that minor be adjudged a ward of the court and reside in his mother's home under standard conditions of probation.
Dispositional Hearing
At the commencement of the September 29, 2010 dispositional hearing the court stated: "I'm pretty disappointed or unhappy with the [probation officer's] recommendation. It appears to be a placement case." Appellant's counsel argued that the incident was an "aberration" not likely to be repeated and requested that appellant be placed on the family preservation unit caseload and returned to his mother. The prosecutor stated the victim said he was "still very traumatized by the assault." She argued in favor of a placement order given the severity of appellant's conduct and the fact that releasing him to his mother's home would put him in close contact with the victim, since they lived at the same address. Appellant's counsel asserted that appellant's grandfather would be willing to have appellant live with him.
Citing Welfare and Institutions Code section 726, subdivision (a)(3), the court found that appellant's welfare required he be removed from his parent's custody. It also found that reasonable efforts had been made to prevent or eliminate the need for removal and remaining in the home would be contrary to appellant's welfare. The court ordered appellant removed from his mother and placed in a "suitable family home or group home" under specified probation conditions. The court requested the probation officer "look at R.O.P. or Boys Republic." The probation department's October 2010 placement review report stated that appellant had been referred to Menzes Group Home.
Welfare and Institutions Code section 726, subdivision (a)(3) provides in relevant part: "In all cases in which a minor is adjudged a ward . . . of the court, the court may limit the control to be exercised over the ward . . . by any parent or guardian and shall in its order, clearly and specifically set forth all those limitations, but no ward . . . shall be taken from the physical custody of a parent or guardian, unless upon the hearing the court finds one of the following facts: [¶] . . . [¶] (3) That the welfare of the minor requires that custody be taken from the minor's parent or guardian."
The People assert that R.O.P. refers to the Rites of Passage program.
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DISCUSSION
Appellant contends the juvenile court erred in ordering his out-of-home placement without giving a statement of reasons. He notes he has no prior criminal history, has never received "rehabilitative services" and there is no evidence that he would benefit from removal from his home.
Our Supreme Court has held express findings are not required under section 726. (In re Kenneth H. (1983) 33 Cal.3d 616, 620-621.) We reverse a juvenile court's commitment order only on a showing that the court abused its discretion. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.) We indulge all reasonable inferences in support of the juvenile court's decision and uphold all findings supported by substantial evidence. (Id. at p. 1330.)
"When determining the appropriate disposition in a delinquency proceeding, the juvenile courts are required to consider '(1) the age of the minor, (2) the circumstances and gravity of the offense committed by the minor, and (3) the minor's previous delinquent history.' [Citations.] Additionally, 'there must be evidence in the record demonstrating both a probable benefit to the minor by [out-of-home] commitment and the inappropriateness or ineffectiveness of less restrictive alternatives.' [Citation.]" (In re Jonathan T. (2008) 166 Cal.App.4th 474, 484-485.) However, these must be considered with the purposes underlying the juvenile court law: "protection and safety of the public" (Welf. & Inst. Code, § 202, subd. (a)) and "care, treatment and guidance that is consistent with [the minors'] best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances" (Welf. & Inst. Code, § 202, subd. (b)). (See In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684.)
We conclude the court's commitment of appellant to an out-of-home placement was not an abuse of discretion. Appellant left the victim, went to his apartment where he retrieved a knife, and then returned and stabbed the victim in the leg and arm and threatened to kill him. Had the victim not attempted to fend off appellant's attack, he may have been stabbed in the neck and chest. Four months prior to this offense appellant was referred to the probation department for a section 245, subdivision (a)(1) assault; the referral was ultimately dismissed for lack of evidence. Although appellant's mother stated she was planning to move, the court could reasonably conclude that, at least until such move took place, releasing him to his mother's home would put him in close contact with the victim, since they lived at the same address. In addition, the evidence that appellant had done well in juvenile hall supports the court's determination that a more secure placement would benefit appellant.
DISPOSITION
The dispositional order is affirmed.
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SIMONS, J.
We concur.
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JONES, P.J.
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BRUINIERS, J.