In re K.H. CA4/2 ( 2013 )

Filed 3/6/13 In re K.H. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re K. H., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
E056234
Plaintiff and Respondent,
(Super.Ct.Nos. J239660
v. & RIJ1100008)
K. H., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Thomas S. Garza,
Judge. Affirmed.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and
Appellant.
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Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Melissa Mandel and Eric A.
Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant, K. H. (the minor), challenges the placement order made
by the juvenile court following a dispositional hearing held on March 16, 2012. He
argues the court’s decision to remove him from his mother’s custody and place him in
foster care was an abuse of discretion. As discussed below, we find the court did not
abuse its discretion.
FACTS AND PROCEDURE
First Petition—January 2011
On December 29, 2010, the minor and several other youths robbed a pizza
delivery person at knifepoint. Another youth pointed a knife at the victim and took a
small amount of cash from his person. The minor and other youths took pizzas and other
food items from the trunk of the victim’s car.
On January 4, 2011, the People filed a petition in the Riverside County Juvenile
Court, alleging the minor had committed robbery (Pen. Code, § 211) and possessed stolen
property (Pen. Code, § 496, subd. (a)).1
1 Also on January 4, 2011, the probation office received a referral on the minor
for misdemeanor possession of marijuana (Health & Saf. Code, § 11357, subd. (b)) and
the purchase of tobacco by a minor (Pen. Code, § 308, subd. (b)). The district attorney
returned the matter to the probation department, instructing it to handle the matter along
with the robbery case.
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When interviewed by the probation officer, the minor’s mother maintained that his
friends were a positive influence on him, including two who participated with the minor
in this robbery, one of which was his best friend. Regarding this boy, mother stated:
“‘They are like brothers!’” The probation officer reported: “When advised that most of
[the minor’s] friends are on probation, she stated, ‘I know some of them have been bad in
the past, but they are all good kids. They are all very respectful to me.’” The minor had
been diagnosed as learning disabled and participated in an individual educational plan
meeting in January 2009, at which time his reading, writing, and math scores were at the
5th grade level. For the current school year, defendant already had 49 unexcused
absences and 29 excused absences for being “sick.” He had numerous behavioral
referrals and disciplinary actions stemming from sexual harassment, defiance/disrespect
to staff, dress code violations, assaulting other students, and using foul language. The
minor regularly smoked cigarettes and marijuana, regularly abused prescription drugs,
and regularly consumed alcohol. He was hospitalized in 2010 for overdosing on
prescription pills. Mother was aware of the minor’s substance abuse in the past, but
claimed to be surprised that he was currently using. Mother was also skeptical as to
whether the minor had participated in the robbery at all. The probation officer questioned
whether placing the minor with his mother would be productive because of the minor’s
“belief that he can do whatever he wants, whenever he wants,” and mother’s “lack of
parental control and discipline” and denial regarding her son’s behavior. However, the
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probation officer concluded that the minor deserved “one chance on probation while
remaining in his home.”
On January 20, 2011, the minor admitted both allegations and was declared a ward
of the court. The court sentenced the minor to the 21 days of custody he had already
served and placed him with his mother.
Probation Violation—April 2011
On April 15, the minor’s probation officer filed a petition alleging the minor had
violated his probation by (1) being arrested for shoplifting (Pen. Code, § 490.5) on
February 14, 2011, and (2) being in the presence of one of his codefendants in the
robbery. On April 20, 2011, the minor admitted the allegations. The juvenile court
sentenced him to 20 to 40 days in custody and again placed him with his mother on
probation.
Subsequent Petition and Transfer—May/June 2011
On May 5, 2011, the People filed a subsequent petition alleging the minor
committed felony evading police (Veh. Code, § 2800.2) and reckless driving (Veh. Code,
§ 23103, subd. (a)). On March 15, 2011, the minor drove recklessly and failed to stop
when a law enforcement vehicle activated its lights and siren. On June 20, 2011, the
minor admitted the allegation that he evaded police. The court continued the minor in his
mother’s custody and transferred the matter to San Bernardino County, where the minor’s
mother had moved, for disposition. The court also dismissed the reckless driving charge.
On June 30, 2011, the San Bernardino County Juvenile Court accepted the case. At the
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further transfer-in hearing held on August 12, 2011, the court continued the minor on
probation in his mother’s custody.
Probation Violation—March 2012
On March 7, 2012, the minor’s probation officer filed a petition alleging the minor
had violated his probation by failing to perform the following terms of his probation: (1)
perform community service; (2) attend anger management classes; (3) report to his
probation officer as scheduled; and (4) attend school. On March 9, 2012, the juvenile
court issued a warrant for the minor’s arrest based on his failure to report to his probation
officer after January 17, 2012. At the detention hearing held on March 21, 2012, the
minor admitted to not attending school. The People dismissed the remaining allegations
but the parties stipulated they could be considered for disposition and restitution
purposes. The minor was continued in placement at juvenile hall. At the contested
dispositional hearing held on April 16, 2012, the court heard testimony from the
probation officer and from the minor’s mother. After hearing argument from counsel, the
court found that the minor’s needs were not being met in his mother’s home and ordered
him placed in foster care. This appeal followed.
DISCUSSION
We review a juvenile court’s dispositional order for abuse of discretion, indulging
all reasonable inferences to support its decision. (In re Angela M. (2003) 111
Cal.App.4th 1392, 1396.) The minor argues the court abused its discretion in removing
him from his mother’s custody and placing him in foster care.
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In determining placement in a juvenile delinquency case, the court focuses on the
dual concerns of the best interests of the minor and the need to protect the public. (In re
Jimmy P. (1996) 50 Cal.App.4th 1679, 1684.) The 1984 amendments to the juvenile
court law reflected an increased emphasis on punishment as a tool of rehabilitation, and a
concern for the protection and safety of the public. (In re Michael D. (1987) 188
Cal.App.3d 1392, 1396.) Since retribution must not be the sole reason for punishment,
there must be evidence demonstrating probable benefit to the minor and the
inappropriateness or ineffectiveness of the less restrictive alternatives. (Ibid.; In re
Angela M., supra, 111 Cal.App.4th at p. 1396.)
The minor specifically argues that he does not merit placement because his most
serious offense, robbery, was committed back in December of 2010, and his offenses did
not become more serious over time. He also points out that the juvenile court misspoke
when it stated at the dispositional hearing that the minor had participated in two felony
robberies and argues the court mischaracterized his “drug issues” as current rather than in
the past. Finally, the minor characterizes his probation violations as “technical” only, and
faults the court for improperly emphasizing his lack of school attendance and de-
emphasizing his decision to work part-time in the construction industry.
Regarding the minor’s offenses, we agree that his most serious offense, robbery,
along with felony possession of stolen goods, took place prior to the wardship, and was in
fact its cause. However, the minor ignores the fact that he was arrested for shoplifting
only three weeks after the beginning of his wardship, and for reckless driving and felony
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evading a police officer only a month after the shoplifting. The minor did refrain from
getting arrested for the next year leading up to the dispositional order he challenges here.
However, he also overlooks that he did not attend a single day of school during the 2011-
2012 school year, did not attend any anger management classes or perform any
community service, and actively evaded meeting with his probation officer over a
number of months. While none of these failures is, on the surface, as serious as robbing a
person at knifepoint, the minor has shown by his actions that the less restrictive
alternative of placement with his mother has been utterly ineffective in rehabilitating him.
The proposed placement is of probable benefit to the minor because it would provide him
the structure and discipline that he has sorely lacked at home, especially with regard to
obtaining an education.
Regarding the juvenile court’s incorrect statement that the minor had participated
in “two felony robberies” rather than just one, we agree with the People that this
misstatement does not make the entire disposition an abuse of discretion or lacking in
justification. This is because, although the minor participated in only one felony robbery,
he was actually convicted of three felonies—robbery, receiving stolen property, and
evading a police officer—which adequately demonstrates the minor’s danger to public
safety just as would two felony robberies. Similarly, although the probation officer
testified that the minor was producing clean drug tests, thus showing that the juvenile
court was mistaken as to the minor’s current drug use, the record contains more than
enough evidence to support the dispositional order, in the form of the minor’s complete
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lack of ability to conform with the most simple requirements of probation while in his
mother’s care.
The minor characterizes his probation violations as merely “technical” and argues
that these should be outweighed by the fact that he is working part-time. Again, the
minor did not merely miss a few days of school—he completely failed to attend during
the then-current school year at all. Similarly, with the anger management and community
service requirements, the minor completed none of these requirements. Further, the
probation officer testified that, prior to missing all appointments after January 17, 2012,
the minor also failed to appear for his appointments on October 18 and November 15,
2011. Thus, these violations were not merely “technical,” but are extensive and
intentional. This behavior, while on probation in the custody of his mother, is consistent
with the depiction of the minor provided by the probation officer for the minor’s very
first Welfare and Institutions Code section 602 petition after the 2010 robbery, that the
minor has the “belief that he can do whatever he wants, whenever he wants,” which is
exacerbated by his mother’s “lack of parental control and discipline.” We also note that
the probation officer opined that the minor deserved “one chance on probation while
remaining in his home,” whereas he subsequently received more than one chance.
Although mother testified at the dispositional hearing that she was capable of providing
educational and other support for the minor if he could be continued in her custody, she
had told the probation officer during an interview on January 31, 2012, that the minor
refused to attend school, that he came and went as he pleased, and that she had lost
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control of him. The minor is to be commended for working part-time, but this in no way
compensates for his otherwise complete lack of effort and self-control in complying with
the very plain terms of his probation.
In sum, the record is replete with support for the juvenile court’s dispositional
order removing the minor from his mother’s custody and placing him in foster care.
Thus, the court did not abuse its discretion.
DISPOSITION
The juvenile court’s dispositional orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
RICHLI
J.
MILLER
J.
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