In re Alejandro v. CA5

Filed 8/20/14 In re Alejandro V. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re ALEJANDRO V., a Person Coming Under
the Juvenile Court Law.
THE PEOPLE, F067907
Plaintiff and Respondent, (Super. Ct. No. JJD065740)
v.
OPINION
ALEJANDRO V.,
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Juliet L.
Boccone, Judge.
Arthur L. Bowie, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and
Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Cornell, Acting P.J., Franson, J. and Chittick, J.†
† Judge of the Superior Court of Fresno County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
The court continued appellant, Alejandro V., as a ward of the court (Welf. & Inst.
Code, § 602) after appellant admitted allegations charging him with public intoxication
(Pen. Code, § 647, subd. (f))1 and violating his probation (Welf. & Inst. Code, § 777).
On appeal, appellant contends the court abused its discretion when it committed
him to the Tulare County Youth Facility (youth facility). We affirm.
FACTS
On December 5, 2011, then 15-year-old appellant admitted allegations charging
him with possession of a knife on school grounds (§ 626.10, subd. (a)).
During a probation department interview on December 11, 2011, appellant
admitted he did not like school, was behind academically, and that he last attended school
in March 2011. Additionally, appellant’s grandmother reported that his mother had been
in and out of jail the majority of her children’s lives and was currently involved in a
relationship with a man who had just been released from prison. Appellant’s
grandmother moved in with appellant and his four siblings on November 6, 2011,
because appellant’s mother was incarcerated on that date on a charge of possession of a
controlled substance for which she was subsequently sentenced to a two-year prison term.
On January 9, 2012, the court placed appellant on probation with certain terms and
conditions, including that he attend school regularly, abstain from the use of alcohol and
drugs, participate in alcohol and drug abuse counseling, participate in anger management
and family counseling, and abide by a 10:00 p.m. to 6:00 a.m. curfew.
On April 20, 2012, appellant and a confederate approached two victims, demanded
they empty their pockets, and asked for money or drugs. Appellant also asked the
victims if they were gang members. When they replied they were not, appellant stated he
belonged to the northern gang. When appellant struck one of the victims in the head, a
1 All further statutory references are to the Penal Code, unless otherwise indicated.
2
fight ensued and appellant and his confederate fled without taking anything. Appellant
was later identified as one of the robbers at an infield show up.
A detention report filed April 24, 2012, indicated appellant was then living with an
older brother, his brother’s girlfriend, a niece, a nephew and a younger brother.
On April 25, 2012, appellant admitted allegations in a second petition charging
him with attempted robbery (§§ 664/211) and misdemeanor battery (§ 242) conditioned
on appellant being granted deferred entry of judgment (DEJ) as to those offenses.
During a probation department interview, appellant admitted that prior to
committing the above offenses he had been drinking alcohol and did not remember
anything from the time he left a friend’s house to purchase alcohol until he arrived at the
Juvenile Detention Facility. He also had not yet started attending alcohol counseling.
On May 9, 2012, the court placed appellant on DEJ with the same conditions as
his probation and ordered him to live with an adult brother.
On May 29, 2012, appellant was drinking with friends in a garage with the door
open when police officers walked up the driveway. Appellant hid, but he came out when
directed to by the officers.
On October 5, 2012, the probation department filed a notice of DEJ
noncompliance alleging, among other things, that appellant failed to abstain from using
alcohol and marijuana, abide by his curfew, attend school, enroll in a drug treatment
program, enroll in anger management, enroll in individual or family counseling, and
complete community service hours.
On October 9, 2012, the probation department filed a notice of violation of
probation alleging the same violations as the notice of DEJ noncompliance.
On October 23, 2012, the district attorney filed a third petition charging appellant
with resisting arrest (§ 148, subd. (a)(1)) and being a minor in possession of alcohol (Bus.
& Prof. Code, § 25662, subd. (a)).2
2 Appellant’s mother was released from prison sometime in October 2012.
3
On November 1, 2012, after appellant admitted the allegations in the third petition,
the court released appellant on the electronic monitoring program.
On November 11, 2012, the probation department reported to the court that
appellant was not in compliance with the terms and conditions of the electronic
monitoring program.
On December 19, 2012, the court continued appellant on probation with respect to
the first and third petitions and continued him on DEJ with respect to the second petition
with the same terms of probation except that he was required to perform an additional 40
hours of community service.
On March 11, 2013, the district attorney filed a fourth petition charging appellant
with assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)),
a great bodily injury enhancement (§12022.7, subd. (a)) and a gang enhancement
(§ 186.22, subd. (b)(1)(C)).
On May 13, 2013, appellant was taken into custody for failing to attend school on
time and violating the terms of his release on the electronic monitoring program. He was
also dropped from school on that date.
On May 28, 2013, the court dismissed the fourth petition at a jurisdictional hearing
at the close of the People’s case, pursuant to a motion to dismiss by appellant’s counsel.
It also terminated appellant from DEJ.
On June 12, 2013, the court placed appellant on probation for the charges in the
third petition and added several gang conditions including that he not associate with gang
members.
On July 6, 2013, while investigating a vehicle theft, a Lindsay police officer was
told by the victim that two gang members approached him while he was reporting the
crime and attempted to fight with him. As appellant and another person walked across
the street towards the victim and the officer, the victim identified them as the gang
members who approached him earlier. The officer contacted appellant and his
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companion. Although they both denied attempting to fight with the victim, the officer
arrested them anyway because their eyes were bloodshot and they each had a strong odor
of alcohol.
On July 15, 2013, the district attorney filed a fifth petition charging appellant, who
was then 17 years old, with public intoxication (§ 647, subd. (f)), and the probation
department filed a notice of probation violation alleging appellant violated his probation
by failing to abstain from alcohol and failing to abide by his curfew.
On July 16, 2013, appellant admitted the public intoxication charge and that he
violated his probation.
Appellant’s probation report indicated that during an interview with a probation
officer, appellant denied being a gang member but admitted associating with them. The
report also indicated that appellant had 14 excused absences and 29 unexcused absences,
had been suspended a total of five days, had a grade point average of only 1.45, and
although a junior in high school, had earned only 63.50 of 220 credits needed to graduate.
Appellant’s probation officer reported that appellant lived in a dysfunctional family and
was not being properly supervised.3
Further, the authoring probation officer was concerned with appellant’s continued
use of alcohol and poor decision making skills and believed appellant needed more
structure in his life. The officer considered placing appellant in a group home, foster
home, or the home of a suitable relative. However, those placements were deemed
inappropriate because appellant did not have the social needs that required those types of
placements and appellant could receive appropriate services without the need for out of
home placement. The officer recommended a placement at the youth facility because it
3 The case plan attached to the report also indicated appellant received inadequate
supervision at home and that his mother minimized, denied, justified, or excused
appellant’s behavior. It also indicated appellant associated with taggers or gang members
and that gang associates were gaining considerable influence over him.
5
would provide appellant the opportunity to participate in alcohol and drug education and
counseling, mental health counseling, aggression replacement training, and to continue
his education in a secure setting. A commitment there also would provide appellant 24
hour supervision, ensure he refrained from using illegal substances, and instill discipline
by providing him with a structured setting and holding him accountable for his actions.
On July 30, 2013, at appellant’s disposition hearing, defense counsel argued for a
long-term or a modified long-term program. According to defense counsel, the youth
facility provided an open dorm setting where appellant would easily be influenced by
peer pressure, whereas he would be housed in a single cell in a long-term program. The
court, however, followed the probation department recommendation and committed
appellant to the youth facility for one year. The court also set appellant’s maximum term
of confinement at three years six months.
DISCUSSION
Appellant contends the court abused its discretion when it committed him to the
youth facility because: (1) it failed to adequately consider appellant’s drug treatment
needs; (2) there was no evidence presented at his disposition hearing that the youth
facility would be able to provide him with the treatment he needed to address his
substance abuse; and (3) the court should have ordered his guardian or the probation
department to place him in an outpatient or residential treatment program. We will reject
these contentions.
A juvenile court’s commitment order may be reversed on appeal only upon a
showing the court abused its discretion. (In re Todd W. (1979) 96 Cal.App.3d 408, 416.)
“‘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.’” (In
re Lorenza M. (1989) 212 Cal.App.3d 49, 53.)
In less than three years, appellant had charges sustained in four petitions, violated
his probation twice and was terminated from the DEJ program. Further, appellant had
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problems adhering to a court-ordered curfew, failed to attend court-ordered drug
counseling, and he associated with gang members. Appellant also had been suspended a
total of 5 days from school, had 14 excused and 29 unexcused absences, was failing
school, had not earned enough credits to graduate, and was dropped from school in May
2013. It was also undisputed that appellant had a substance abuse problem involving
alcohol and marijuana and more recently with the drug spice. The court could reasonably
find from appellant’s failure to abide by previous court orders, the inability of his
dysfunctional family to control him, his continued association with gang members, and
his dismal school attendance and performance that appellant would benefit from being
committed to a secure placement. Additionally, at the youth facility appellant would
have to attend school, mental health counseling, and drug and alcohol treatment, and he
would not be able to use drugs or freely associate with gang members who appeared to be
gaining influence over him. The court could also consider the rehabilitative effect of
punishment in holding appellant accountable for his behavior and that appellant would
benefit from the structure and discipline inherent in a secure commitment. (Welf. & Inst.
Code, § 202.)
Further, the court did “adequately consider” his need for substance abuse
counseling. The probation report, which the court read, clearly identified alcohol abuse
as one of appellant’s main problems. It also recommended a youth facility commitment
because it would provide appellant the opportunity to receive substance abuse counseling
in a secure setting where he would have to attend and ensure that he refrained from the
use of illegal substances. At appellant’s disposition hearing, defense counsel did not
dispute that appellant would receive these services at the youth facility and argued only
that appellant should be committed to a long-term program where he would be housed in
an individual cell. Accordingly, we reject appellant’s contention that there is no evidence
in the record that he would receive substance abuse treatment at the youth facility.
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Moreover, placement in an outpatient treatment program or long-term residential
program was not feasible. Since neither type of program is provided in a secure setting
and appellant had previously disobeyed many court orders, it was unlikely appellant
would participate in either type of program. Further, neither of these placements would
address appellant’s other issues, such as his dismal school attendance and performance
and his association with gang members, and a residential program would be inappropriate
for the additional reason that it would interfere with appellant’s ability to attend school.
In any event, appellant did not identify at the disposition hearing any outpatient or
residential treatment program that he claims he could have been committed to in lieu of
the youth facility. Accordingly, we conclude that the court did not abuse its discretion
when it committed appellant to the youth facility.
DISPOSITION
The judgment is affirmed.
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