Opinion
A152262
10-10-2018
In re N.Y., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. N.Y., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J17-00793)
N.Y. was declared a ward of the court after pleading no contest to second-degree robbery. On appeal, he contends the juvenile court abused its discretion in deciding to remove him from his family home and place him in a twelve-month program at a juvenile ranch facility. We affirm.
BACKGROUND
On July 4, 2017, 13-year-old N.Y., his 15-year-old cousin M.M., and another companion J.W. put on dark clothes and Spider-Man masks and approached the victim, a 58-year-old man, walking down the street. M.M. pulled out a semi-automatic handgun, pulled the slide back, pointed the gun into the victim's face, and demanded his belongings. The victim ran, and the three boys followed. A passing motorist heard the victim's yells to call 911 and saw the trio run off.
Antioch police later found N.Y. and his companions sweating and out of breath. The officer who found them told them to sit on the curb so he could talk to them, but they refused. Instead, the boys began questioning the officer and then started to leave. M.M. ran away, as N.Y. and J.W. encouraged him.
The officer yelled at N.Y. to sit down, and N.Y. again refused. The officer grabbed him, and N.Y. actively resisted the officer's attempt to push him into a seated position. N.Y. kept trying to leave, but the officer tackled him and punched him. When he kept resisting, the officer struck him again. N.Y. was handcuffed with the assistance of a second officer. When they searched N.Y., the officers found a Spider-Man mask and a pocket knife. J.W. possessed an unloaded, semi-automatic handgun.
The district attorney filed a Welfare and Institutions Code section 602 juvenile wardship petition alleging attempted second-degree robbery (Pen. Code, §§ 211, 212.5, subd. (c), 664 (count one)) and resisting an executive officer (Pen. Code, § 69 (count two)). An enhancement was alleged on count one for N.Y. being armed with a firearm (Pen. Code, § 12022, subd. (a)(1).) N.Y. entered a no contest plea to attempted second-degree robbery. Resisting an officer and the firearm enhancement were dismissed. He was detained in juvenile hall prior to his disposition hearing.
All statutory references are to the Welfare & Institutions Code unless otherwise stated.
The probation officer's disposition report explained that N.Y. took responsibility for most of his actions, wanted to apologize to his victim, and expressed remorse. Regretting his participation in the offense, N.Y. said he never had the gun or knew his cousin was going to use it and rob the victim. N.Y. told the probation officer that if he were presented with a similar situation in the future, he would walk away.
N.Y. had never previously been referred to probation. He thought he deserved to be released to home supervision and placed on probation. He intended to obey all the terms and conditions of probation, and also anticipated his " 'very strict' " mother would punish him for several months and keep a close eye on him.
N.Y.'s mother shared her son's view that he should be released to home supervision, placed on probation, and ordered to attend counseling and complete community service. She told the officer that N.Y. behaved well at home, acted respectfully, and never gave her problems. She recently allowed N.Y. more freedom but planned to limit that and punish him if he were released. She also intended to keep him away from his older cousin, M.M., who influenced him. N.Y.'s mother lectured him about his behavior and believed he "learned his lesson." She pledged her son would no longer take part in delinquent behavior.
The report also explained that in his last school year in eighth grade, N.Y. received an A, four C's, two D's, and four F's. He had unexcused absences for 33 classes and tardies for 47 classes. His school record contained 45 disciplinary referrals, including disrespectful, disruptive, and defiant behavior; throwing objects; leaving class without permission; and bullying. N.Y. had recently participated in anger management classes at school and had started using marijuana. He admitted to using it daily for several months but decreased usage to twice or three times per week. He used marijuana the day of the offense. Under the Juvenile Assessment and Intervention System, N.Y. was "classified as having a moderate risk level for reoffense."
Probation gave credit to N.Y. for being remorseful and noted his good behavior at home and willingness to cooperate but expressed a number of concerns and found multiple problems that needed to be addressed. The report stated, "The minor acted in a very deplorable, negligent and dangerous manner during the sustained offense. [N.Y.] not only put his life, but the [lives] of others, in danger. It is clear . . . that the offense was a meticulous plan as all minors clearly were trying to disguise their identity by using Spiderman masks. Unmistakably, [N.Y.] lacks the tools necessary to effectively guide his decision making during non-pro-social situations. [¶] While the instant offense is [N.Y.'s] first sustained law violation, [N.Y.] needs to be held accountable for his actions and poor choices, and he needs to understand that there are direct consequences for his actions and failure to abide by the law. Undoubtedly, the offense was serious and has left the victim emotionally traumatized." N.Y.'s school attendance, grades, and disciplinary record were additional matters of concern, as well as his "noteworthy substance abuse problem."
Considering the totality of N.Y.'s situation, probation believed N.Y. "would benefit from the therapeutically, structured and supervised environment at [Orin Allen Youth Rehabilitation Program ("Orin Allen")] . . . [and that N.Y.] would benefit from the immediate services on site, such as appropriate cognitive behavioral therapy, anger management counseling, substance abuse counseling, a victim impact class and he will attend school every day." Based on the severity of the crime and the information in the report, probation recommended N.Y. be removed from his mother's custody for his welfare and committed to Orin Allen for a 12-month program.
At the disposition hearing, N.Y.'s counsel proposed the juvenile court suspend the commitment to Orin Allen and put N.Y. on an ankle monitor and probation where he can receive counseling. His counsel acknowledged N.Y.'s "conduct could warrant" Orin Allen but argued N.Y.'s role in the offense was less than the other boys who handled the firearm. Counsel expressed concern that N.Y., then 13 years old and "never . . . in trouble before," would be housed with 17-and-18-year olds at Orin Allen on multiple commitments. Counsel explained, "I don't think that is going to be a positive impact and a place where [N.Y.] will learn to have better judgment in the future."
N.Y.'s mother addressed the court, promising that if her son were placed on home probation she would not let him out of her sight. She intended to make sure N.Y. stayed out of trouble and planned to cut off his recent independence. Referring to N.Y.'s academics, she said she brought in a tutor to help N.Y. with math before and that family members were willing to help N.Y. with school. She described N.Y.'s family members—a grandmother, aunts, uncles—willing to make sure [N.Y.] stayed out of trouble. She told the court, "[W]hatever I have to do to make sure he stays out of trouble, I will do it."
The People refused to minimize N.Y.'s role in the armed robbery and expressed concern about the gravity of N.Y.'s first offense. For the People, it was essential for both N.Y. and public safety that N.Y. enter "a structured program where he can really get the insight that he needs to go off further in life and not threaten other people and to be a productive person of society." Noting N.Y. was just 13 years old and participated in an armed robbery, the prosecutor stated, "Right now is the time that he needs to get into the structured programming to realize that there's alternatives." The People stated that N.Y.'s school performance and marijuana use showed he had no structure at home. The People further explained, "[Orin Allen] isn't like jail or prison where someone goes in, and they see all these hardened criminals, and they come back out and they're just going to go back into the cycle of violence. The . . . program . . . has all these different treatment facilities for minors just like [N.Y.] to get the program that he needs, to learn about how to deal with life and to learn how not to be like those people that end up in prison. . . ." Regarding home supervision as "a huge risk," the prosecutor saw the 12-month program at Orin Allen as "extremely appropriate" for an armed robbery.
The probation officer underscored the Orin Allen placement would help N.Y. by providing therapeutic services, structure, and the chance to catch up with his schooling; it would further allow him "to learn a very serious lesson at a young age." Having worked with middle schoolers with similar profiles to N.Y., the probation officer stated, "[T]he sooner these young people are given consequences for their actions and their therapeutic needs are addressed, the better likelihood we have of not seeing them as repeat offenders, and that's what we don't want for [N.Y.]." Probation had no doubt that N.Y.'s mother would manage him if he were released on home supervision with an ankle monitor but thought that such a disposition was a "Band-aid" fix that did not address "the real issues." To probation, the commitment to Orin Allen would serve the department's rehabilitation and community safety objectives and give N.Y. consequences for his actions.
The juvenile court adjudged N.Y. a ward of the court and adopted probation's recommendation. The court commented, "Well, fundamentally, [N.Y.] is a good person because he did accept responsibility for what he did, and he does, I think, show genuine remorse. But he is going down a very dangerous path and not just with regard to public safety but his own safety." The court focused on Orin Allen as "a rehabilitative facility [that] has multiple programs that will address the very issues that you are struggling with . . . . There is a substance abuse program. There is an anger management program. There is a victim impact class. And there is school. . . . [B]ecause you are very bright, you need to focus on academics and not waste the good brain that you have. [¶] And when I look at your record in school, I shudder—45 disciplinary actions is outrageous. And I don't find that any of them are particularly minor. And what really jumps out is your disrespect and defiant behavior, and I want to get you on the right track. I want that to stop because you have so much potential that I feel that this is an early intervention for you, to get you reprogrammed, get you on the right track, have you avoid any kind of further criminal conduct, and have you focus on your talents and your strengths. . . . I think that you will respond well to the [Orin Allen] program. [¶] . . . [¶] I do think that you do need the structure and the services [Orin Allen] will provide you. You are going to benefit from the therapeutic structure and supervised conditions . . . , and I think you are going to come out a better person." N.Y. now appeals.
DISCUSSION
Applicable Law
The Welfare and Institutions Code vests placement and custody decisions in the sound discretion of the juvenile court. (See §§ 725, 726.)
Section 726 provides, in relevant part, as follows: "(a) . . . [N]o ward or dependent child shall be taken from the physical custody of a parent or guardian, unless upon hearing the court finds one of the following facts: [¶] (1) That the parent or guardian is incapable of providing or has failed or neglected to provide proper maintenance, training, and education for the minor. [¶] (2) That the minor has been tried on probation while in custody and has failed to reform. [¶] (3) That the welfare of the minor requires that custody be taken from the minor's parent or guardian."
"A juvenile court's commitment order may be reversed on appeal only upon a showing the court abused its discretion. [Citation.]" (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.) " '[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered.' [Citation.]" (In re Carl N. (2008) 160 Cal.App.4th 423, 432.) "An appellate court will not lightly substitute its decision for that rendered by the juvenile court. We must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them. [Citations.] In determining whether there was substantial evidence to support the commitment, we examine the record presented at the disposition hearing in light of the purposes of the Juvenile Court Law. [Citations.]" (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.)
The dual purposes of the juvenile court law are "(1) to serve the 'best interests' of the delinquent ward by providing care, treatment, and guidance to rehabilitate the ward and 'enable him or her to be a law-abiding and productive member of his or her family and the community,' and (2) to 'provide for the protection and safety of the public. . . . ' " (In re Charles G. (2004) 115 Cal.App.4th 608, 614.) To that end, the juvenile court considers the probation officer's report and any other relevant and material evidence that may be offered, as well as the age of the minor, the circumstances and gravity of the offense, the previous delinquent history, and other relevant and material evidence. (§§ 202, subd. (d), 725.5).
Removal from Family Home on "First Offense"
N.Y. argues the court abused its discretion because it removed him from his home on his first wardship petition. This is not grounds for reversal. Section 726 permits the juvenile court to remove a ward from his family home when it finds one of the facts enumerated in section 726, subdivision (a). (See, § 726, subd. (a)(1)-(3).) N.Y. acknowledges that the court made one such finding. When one of the requisite findings is made, there is nothing in section 726 that precludes a juvenile court from removing a minor who has never before been a ward from his parent's custody. (See generally, § 725 et seq.) N.Y. has presented no authority that a court abuses its discretion in removing a first-time ward from his parent, and we are not aware of any. (See In re Sade C. (1996) 13 Cal.4th 952, 994 (Sade C.) [appellant carries burden of presenting argument and authority on each point made.)
Less Restrictive Alternatives
N.Y next argues that in committing him to Orin Allen, the juvenile court "failed to consider the least restrictive or most family-like environment. As such the court abused its discretion when it ordered appellant placed in the highly restrictive [Orin Allen] program without first considering and trying less restrictive alternatives." Not so.
N.Y. provides no support or authority for his contention that the court had to consider the "most family-like environment," so we need not address that argument. (See Sade C., supra, 13 Cal.4th at p. 994.)
There is also no support for N.Y.'s contention that the court abused its discretion in not "trying" less restrictive alternatives. As N.Y. acknowledges, the court is not required to begin with the least restrictive alternatives. Our Supreme Court has stated that "juvenile placements need not follow any particular order . . . including from the least to the most restrictive. [Citations.] Nor does the court necessarily abuse its discretion by ordering the most restrictive placement before other options have been tried." (In re Eddie M. (2003) 31 Cal.4th 480, 507.) Accordingly, even for a 13-year-old, first-time offender, the juvenile court had no obligation to exhaust a less restrictive program before committing N.Y. to Orin Allen.
N.Y. has also not demonstrated that the court failed to consider less restrictive alternatives. This court "cannot assume that the superior court judge, who presided over the dispositional hearing and heard appellant's counsel's arguments, gave them no consideration . . . ." (In re Ricky H. (1981) 30 Cal.3d 176, 183-184.) "[I]f there is evidence in the record to show a consideration of less restrictive placements was before the court, the fact the judge does not state on the record his consideration of those alternatives and reasons for rejecting them will not result in a reversal." (In re Teofilio A. (1989) 210 Cal.App.3d 571, 577.) There need be only "some evidence to support the judge's implied determination that he sub silentio considered and rejected reasonable alternative dispositions." (Ibid.) There is such evidence here.
A less restrictive alternative to Orin Allen was discussed multiple times at the disposition hearing. N.Y.'s counsel expressly asked that he be placed on probation with an ankle monitor. N.Y.'s mother promised to not let her son out of her sight if he were released on probation. The prosecutor submitted that home supervision was a huge risk, and the probation officer described it as a "Band-aid" fix. The record reflects that a less restrictive alternative was squarely before the court at the disposition hearing. Given the serious nature of N.Y.'s armed robbery and his poor academic record, it was reasonable for the court to conclude the objectives of juvenile court law could not be accomplished on home detention.
The decision to commit N.Y. to Orin Allen was a proper exercise of the court's discretion.
Substantial Evidence
Finally, while N.Y. acknowledges that the court made the express finding pursuant to section 726 that N.Y.'s welfare required that custody be removed from his mother, he contends the finding was not supported by substantial evidence. He also says the court's reasoning for its removal decision was conclusory.
N.Y. also correctly indicates the juvenile court made no findings under section 726, subdivision (a)(1) (parental neglect) or subdivision (a)(2) (prior failed probation). Since section 726, subdivision (a) requires a juvenile court to find only "one" of the enumerated facts, which it indisputably did in its subdivision (a)(3) finding regarding N.Y.'s welfare, we need not address these other factors.
The court's section 726 finding justifying N.Y.'s removal was neither inadequately supported nor based on conclusory reasoning. The record establishes with substantial evidence that N.Y.'s placement at Orin Allen was for his welfare. The court carefully considered N.Y.'s situation, his offense, and the benefits of the Orin Allen program. Notwithstanding his mother's assertions of N.Y.'s good behavior at home, the record indicated such good behavior did not extend to his school or the community. There were dozens of disciplinary actions on his school record, including for disrespectful and defiant behavior. N.Y. had begun to use marijuana regularly. He attempted an armed robbery. Based on this evidence, the court could reasonably conclude N.Y.'s family home had not been effective in preventing the behavior that caused his wardship. In addition, there was virtually no evidence that N.Y.'s family home could provide him the structured environment and specialized services the court believed he needed. N.Y.'s claim "that there are no facts in the record" from which the court could conclude his welfare warranted his removal is simply a highly selective reading of the record.
DISPOSITION
The disposition order is affirmed.
/s/_________
Siggins, P.J. We concur: /s/_________
Jenkins, J. /s/_________
Ross, J.
Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------