Opinion
A130689
08-31-2011
In re S.B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. S.B., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J167979-4)
This is an appeal from the dispositional order entered on December 8, 2010, after the juvenile court found that S.B. (minor) committed a felony violation of Penal Code section 241.1, assault on an officer. Pursuant to this order, the juvenile court continued minor as a ward of the court and continued his detainment at the Alameda County Juvenile Justice Center.
After minor filed a timely notice of appeal, appellate counsel was appointed to represent him. Appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (People v. Wende), in which she raises no issue for appeal and asks this court for an independent review of the record. (See also People v. Kelly (2006) 40 Cal.4th 106, 124 (People v. Kelly).)Counsel attests that minor was advised of his right to file a supplemental brief in a timely manner, but he has not done so.
We have examined the entire record in accordance with People v. Wende. For reasons set forth below, we agree with counsel that no arguable issue exists on appeal. Accordingly, we affirm the juvenile court's dispositional order.
FACTUAL AND PROCEDURAL BACKGROUND
On October 5, 2010, a subsequent juvenile wardship petition was filed pursuant to Welfare and Institutions Code section 602, subdivision (a), alleging that, on October 2, 2010, minor committed three felonies while detained at a juvenile facility: (1) battery resulting in serious bodily injury in violation of Penal Code section 243, subdivision (d) (count one), (2) assault on an officer in violation of Penal Code section 241.1 (count two), and (3) resisting an officer in violation of Penal Code section 69 (count three). On October 22, 2010, this petition was amended to change the allegation in count one to felony battery against an officer in violation of Penal Code section 243, subdivision (c)(1).
Unless otherwise stated, all statutory references herein are to the Welfare and Institutions Code.
Minor, born with fetal alcohol syndrome, was first placed in foster care at age two due to his mother's inability to care for him. The parental rights for both parents of S.B. were terminated in January 2000; minor was continued in foster care and, by age 15, had lived in 28 different placements. Perhaps not surprisingly, minor began exhibiting volatile behavior and was ultimately diagnosed with Attention Deficit Disorder for which he was prescribed medication.
Minor's history as a juvenile delinquent appears to have begun in 2002. At the time of his latest offense, which occurred on October 2, 2010, minor was being temporarily housed in the Alameda County Juvenile Justice Center (the center) after being terminated from the Upright Treatment Center in Oakland for engaging in a physical alteration with his peers. Shortly after his termination from the Oakland program, the Alameda County Probation Department filed a request that the juvenile court consider dismissing minor's probation and returning him to the section 300 juvenile dependency system, reasoning that minor required a highly structured setting with a nurturing behavior modification component, which could not be adequately provided under the juvenile delinquency system. The child welfare worker assigned to minor's case disagreed, however, arguing that minor posed a current safety risk requiring highly structured supervised care, which would be better provided under the juvenile delinquency system.
At the contested hearing, Officer Derron Thibodeaux, a level three juvenile institutional officer at the center, testified that, at about 5:45 p.m. on October 2, 2010, he responded to a "scan alarm" indicating an incident was occurring in Unit Two. After arriving at Unit Two, Officer Thibodeaux saw minor surrounded by six to eight other officers, who were trying to convince him to return to his room. According to Officer Thibodeaux, these officers were using a low level show of force toward minor, in effect trying to corral him toward his room. Minor, however, was pacing with clenched fists and a threatening expression, refusing to do so.
Officer Thibodeaux testified that he first met minor over three years earlier during one of minor's many periods of temporary housing in the maximum security unit. The officer believed he had a good rapport with minor, and had often helped calm minor down when he was upset. Given their good rapport in the past, Officer Thibodeaux addressed minor during the October 2, 2010 incident, encouraging him to control his emotions. However, on this particular evening, Officer Thibodeaux's efforts to calm minor were unsuccessful, as minor told him in a hostile manner that he did not care.
Around this time, Officer Rafael Colon, acting institutional supervisor, also began to negotiate unsuccessfully with minor. Minor, who appeared to attempt to walk around or between the officers, bumped into Officer Colon and some of the others a few times. In response, Officer Colon warned minor four or five times that the officers would pepper spray him if he continued to disobey their orders. Then, when minor continued to attempt to move through the officers' blockade, Officer Colon gave an order to spray minor with the pepper spray.
Reacting to the pepper spray, minor "started throwing punches." Many of these punches struck Officer Thibodeaux, who was standing directly in front and to the right of minor. Officer Thibodeaux was able to duck out of the way and, although he was struck over his right eye and on the side of his face on the left side of his nose and cheek, he received only glances rather than solid blows. Eventually, the officers, including Officer Thibodeaux, were able to push minor to the ground, a restraint tactic used to immobilize a person so he or she can be handcuffed to prevent further injury. Following the incident, Officer Thibodeaux was treated for a bloody nose, a small lump over his right eye, a neck strain, and back injury, and was prescribed pain medication.
After describing the October 2, 2010 incident, Officer Thibodeaux testified more generally regarding the standard procedures for dealing with acts of resistance or aggression by the minors detained at the center. Among other things, Officer Thibodeaux testified that, before being authorized to carry pepper spray, all juvenile institutional officers must undergo Crisis Diffusion training, which includes training on the proper application of the spray to a minor. The Crisis Diffusion training also teaches the officers to use exculpatory processes to try to de-escalate a minor. The officers are required to use the least amount of force necessary to compel the minor's compliance with the officer's orders. Generally speaking, an officer must first attempt to verbally persuade the minor to obey. If this does not work, the officer may resort to increasingly more physical tactics to persuade the minor, such as the use of an "armed escort," where officers on either side of the minor hold their arms so as to escort him or her to the desired location. Relevant here, when it appears imminent to an officer that a minor may inflict harm or destroy property, standard procedures permit the officer to use pepper spray on the minor. According to Officer Thibodeaux, an officer is entitled to resort to pepper spray whenever the officer believes that a threat exists to himself or herself, to another staff member or to the center's property. Application of pepper spray is intended as a protective measure rather than a punitive measure. Ideally, an officer receives advance authorization from a supervisor to use pepper spray in a particular situation; however, unexpected situations may arise calling for the spray's immediate use.
Following the contested hearing, the juvenile court sustained count two, assault on an officer (Pen. Code, § 241.1), but made no findings with respect to counts one and three, battery against an officer or resisting an officer. In particular, the court found that "[minor] did act willfully in his response to custodial staff Thibodeaux seeking to talk with him, have some ameliorating discussion about what the minor's actions should be."
A dispositional order was then entered on December 8, 2010, by which the juvenile court continued minor as a ward of the court and continued his detainment at the center. In doing so, the court declined minor's request to dismiss probation or return him to the juvenile dependency system pursuant to section 300. The maximum term of minor's confinement was set for three years. This appeal followed.
DISCUSSION
Neither appointed counsel nor minor has identified any issue for our review. Upon our own independent review of the record, we agree none exists. (People v. Wende, supra, 25 Cal.3d 436.) The juvenile court found that minor violated Penal Code section 241.1, assault on an officer, based upon evidence that included Officer Thibodeaux's testimony that he personally observed minor disobeying other officers' directives to return to his room and exhibiting a hostile stance and threatening look. After another officer resorted to use of pepper spray, minor "started throwing punches," many of which struck Officer Thibodeaux, who had intervened in an attempt to verbally convince minor to calm down. As a result of minor's punches, Officer Thibodeaux required medical treatment and pain medication for injuries he sustained to his nose, right eye, neck and back. In minor's defense, counsel cross-examined Officer Thibodeaux regarding the propriety of the officers' tactics to restrain minor during the October 2, 2010 incident, including their use of pepper spray and resort to physical force when pushing minor to the ground. At all relevant times during these proceedings, minor was represented by competent counsel. Ultimately, however, the juvenile court accepted Officer Thibodeaux's testimony that minor punched him several times, causing injury, when the officer was trying verbally to convince him to calm down. The court's decision in this regard was committed to its sound discretion. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330 [" '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' "].) Under these circumstances, we believe the juvenile court's findings and subsequent order continuing minor as a ward of the court and confined to an out-of-home placement are valid. (Ibid.; In re Aline D. (1975) 14 Cal.3d 557, 563.)
Thus, having ensured minor has received adequate and effective appellate review, we affirm the juvenile court's dispositional order. (People v. Kelly, supra, 40 Cal.4th at pp. 112-113; People v. Wende, supra, 25 Cal.3d 436.)
DISPOSITION
The dispositional order of December 8, 2010, is affirmed.
Jenkins, J. We concur: McGuiness, P. J. Pollak, J.