In re K.M. CA4/2 ( 2023 )

Filed 3/3/23 In re K.M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.M., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
E078356
Plaintiff and Respondent,
(Super. Ct. No. J280865)
v.
OPINION
K.M.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Charles J. Umeda,
Judge. Dismissed.
Kendall Dawson Wasley, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Melissa A.
Mandel and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
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I.
INTRODUCTION
When he was 12 years old, K.M. (minor) stole a vehicle and, while its owner was
still hanging from it, sped and crashed. Minor admitted the allegations that he committed
assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and that he personally
inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)). After 16 failed
placements, the juvenile court ordered minor committed to a secure youth treatment
facility (SYTF). He subsequently appealed, arguing the juvenile court abused its
discretion in committing him to a secure facility without considering less restrictive
alternatives.
On September 20, 2022, we withdrew our initial tentative opinion and granted
minor’s motion to file a supplemental brief. In his supplemental brief, minor argued the
matter should be remanded for a new dispositional hearing because Assembly Bill No.
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200 recently amended Welfare and Institutions Code section 875 to require that a
juvenile be 14 years of age or older in order to be committed to SYTF. The People
conceded minor was correct about his age but asserted the new legislation presumptively
applies prospectively only.
After we issued a second tentative opinion in this matter, on February 9, 2023,
minor’s appellate counsel filed a letter indicating minor had been terminated from
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All future statutory references are to the Welfare and Institutions Code unless
otherwise stated.
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probation on December 16, 2022, and that his juvenile matter was dismissed and minor
was placed in the custody of his father in Texas. Due to this new information, we will
dismiss the appeal as moot because minor’s juvenile matter has been dismissed and the
issue he raises while capable of repetition is not likely to evade review.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Minor has a history with the juvenile court system as a dependent and delinquent
minor. After his removal from parental custody at the age of five, minor had been in 16
different placements (11 group home placements, four foster family agency placements,
and one relative home placement) due to his defiant and incorrigible behaviors. Some of
these behaviors included being caught with alcohol and marijuana, absconding from
placements, assaulting others, destroying property, stealing a golf cart, refusing to attend
school for over a year, and threatening to shoot up a school. Attempts had also been
made to place minor in the homes of his paternal and maternal grandparents. Minor had
been involuntarily committed and prescribed numerous psychotropic medications. He
had been diagnosed with Attention Deficit Hyperactive Disorder, Post-Traumatic Stress
Disorder, and Generalized Anxiety. He also has an extensive history of running away,
using marijuana, consuming hard liquor on a daily basis, and using cocaine. He had been
a victim of a sexual assault, and has a history of using sexual favors for drugs.
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Minor first encountered the delinquency system when he was 12 years old after he
stole a vehicle in April 2019. He was granted summary probation in May 2019, after he
admitted to driving or taking a vehicle without the owner’s consent (Veh. Code, § 10851,
subd. (a)) and receiving stolen property (Pen. Code, § 496d, subd. (a)) as alleged in the
section 602 petition. Minor was not declared a ward and released back to the custody of
child protective service (CPS). In July 2019, minor was continued on summary probation
after he admitted to committing vandalism (Pen. Code, § 594, subd. (b)). Minor again
was not declared a ward of the court and replaced in his group home.
While on probation and within two months, minor committed other serious
offenses in Kern County. Specifically, on August 16, 2019, at approximately 1:00 a.m.,
minor broke into an ice cream shop, stole the till from the cash register, and started
smashing it on the asphalt in the middle of a road. After a nearby resident yelled at him,
minor ran to a vehicle, entered it, and attempted to steal it. The owner of the vehicle,
K.B., who had left her keys in the ignition, ran to the vehicle and reached through the
open driver door window with both arms to stop minor from taking the vehicle.
However, minor “quickly accelerated while turning and [with] [K.B.’s] upper torso still
partially inside the vehicle.” As minor drove away at a high rate of speed, he lost control
of the vehicle and crashed into a raised median, causing the vehicle to flip and K.B. to
tumble from it. “The vehicle rolled over [K.B.] before coming to a stop.” As a result,
K.B. “suffered a fracture to her right ulna, and minor abrasions to her arms.”
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On August 19, 2019, a third section 602 petition was filed, charging minor with
carjacking (Pen. Code, § 215, subd. (a); count 1), assault with a deadly weapon (Pen.
Code, § 245, subd. (a)(1); count 2); and second degree burglary (Pen. Code, § 459/460;
count 3). In the commission of counts 1 and 2, the petition also alleged that minor
personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)). Minor admitted
to count 2, as well as the attendant great bodily injury enhancement. The matter was
subsequently transferred to San Bernardino County where he was a dependent minor.
On October 3, 2019, minor was declared a ward of the court and placed on formal
probation in a suitable placement facility. Pending placement, minor was ordered to
remain in juvenile hall. While in juvenile hall, minor struggled to be compliant, was
disrespectful with staff and peers, had issues with structure, and refused to listen or attend
school. By January 2020, due to his incorrigible behavior, minor had been rejected from
10 different placement facilities.
After the probation officer convinced a placement facility to accept minor and also
spoke to minor about his behavior, minor was eventually placed in a group home on
February 6, 2020. However, four days later, minor left his placement, and on February
11, 2020, a violation of probation petition and a warrant for minor’s arrest were filed.
Minor, who was 13 years old at the time, was found in Los Angeles County on February
13, 2020. Minor admitted to violating probation and was continued as a ward of the
court.
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On April 30, 2020, minor was transported to a group home in Michigan. On May
14, 2020, two weeks after arriving, minor was removed the group home by the probation
department due to the “the programs inability to assure the safety and appropriate care of
the youth,” a COVID-19 outbreak, “and other issues at the placement.” The probation
officer reported that minor and all the other California minors were returned to California
following the murder of a youth at the facility by a staff member, which minor had
witnessed.
Eight days after minor’s arrival in San Bernardino County, on May 22, 2020,
minor was placed in another group home in Upland. However, within a few days, minor
left the group home without permission, and a probation violation petition and an arrest
warrant were filed. The petition alleged that minor had left the facility without
permission, he had failed to obey the rules by threatening to use a knife, he had failed to
participate in making a safety plan, and he had tampered with facility’s video cameras.
Minor was eventually arrested about three months later on August 12, 2020, and
admitted to violating the terms of his probation. He was continued as a ward and ordered
placed in a suitable foster care facility. Meanwhile, minor was placed in juvenile hall,
where he again struggled with defiance issues but had also been commended for positive
behavior.
By November 2020, minor had been rejected from six placements and probation
was having challenges finding a placement for minor. Minor had been accepted at a
group home at the end of November 2020, but the placement was delayed because minor
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was suicidal. Two weeks later, minor was still on suicide watch; however, on January
19, 2021, minor was placed in another group home in Riverside.
Less than a month later, on February 7, 2021, minor left the group home. The next
day, a probation violation petition was filed, and an arrest warrant was issued for his
arrest. Minor was arrested five days later. While in placement, minor refused to comply
with the rules and regulations of placement, had threatened to knife other residents, and
had brought alcohol into placement. His defiant behavior continued while in juvenile
hall. He failed to follow staff directives, failed to attend school, yelled out of his room,
disrespected staff and his teachers, isolated himself in his room, hit another youth, cussed
excessively, and displayed poor peer interactions.
On July 27, 2021, minor admitted to violating probation. The probation
department recommended that minor be committed to Secure Youth Treatment Facility
(SYTF), Gateway to ARISE Program. SYTF provides family reunification services and
programs similar to placement homes. The probation officer explained that minor would
benefit from several programs at SYTF, including, but not limited to, Aggression
Replacement Training, anger management, art therapy, dog therapy, community
resiliency model, courage to change, and family therapy. Minor’s counsel objected to
placement at a secured facility, while the People supported the probation department’s
recommendation
On October 4, 2021, the juvenile court requested probation to assess placement of
minor at his father’s house in Texas, and his aunt’s home in Hesperia. After the family
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assessments, the probation department continued to recommend SYTF, but found both
homes had “potential for the youth’s rehabilitation if he is sincere in his desire to comply
with future terms and conditions of probation and his counseling needs.” Minor’s
probation officer again counseled minor to change his behavior and discussed his
expectations. Minor acknowledged his expectations and indicated he understood what
was required of him.
Nonetheless, on November 8, 2021, minor was involved in a “Code Red” incident.
Specifically, minor became agitated and refused to follow directives to step back from his
room door’s entry. When staff pushed minor backward into the room to create distance
to allow them to close his room door, minor grabbed the staff and pulled the staff into the
room entry way. After the staff delivered two hand strikes to his facial area, minor
complied with getting down on the floor, but continued to threaten to assault staff and kill
himself. And the prior day, minor became enraged and attempted to fight another youth.
Minor continued his negative behaviors in December 2022.
Following a contested dispositional hearing, on December 22, 2021, the juvenile
court ordered minor placed at SYTF. The court found that a less restrictive alternative
was not suitable for minor, that previous attempts to rehabilitate minor had not been
successful, and that the programs offered at SYTF were appropriate to meet minor’s
needs. Minor timely appealed.
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III.
DISCUSSION
Minor contends the dispositional order must be vacated and the matter remanded
to the juvenile court because the amendments to section 875 apply retroactively to him
and the new law does not allow him to be committed to SYTF as he was 12 years old
when the offenses were committed. The People agree minor was 12 years old at the time
he committed his offenses, but contend the new law applies prospectively because the
new law “does not impose a lighter penalty; it merely limits where certain juvenile
delinquents may be rehabilitated.”
We need not decide the issue of whether the amendments to section 875 apply
retroactively because minor’s juvenile action was dismissed on December 16, 2022, and
he was placed in the custody of his father in Texas. “It is a fundamental principle of
appellate practice that an appeal will not be entertained unless it presents a justiciable
issue. [Citation.]” (In re I.A. (2011) 201 Cal.App.4th 1484, 1489.) “‘“[A]s a general
rule it is not within the function of the court to act upon or decide a moot question or
speculative, theoretical or abstract question or proposition, or a purely academic question,
or to give an advisory opinion on such a question or proposition. . . .”’ [Citation.]” (Id.
at p. 1490.)
Because minor is no longer subject to the jurisdiction of the juvenile court, this
appeal challenging the retroactivity of the amendments to section 875 and the juvenile
court’s placement of minor to SYTF cannot benefit him to any degree. Therefore, this
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appeal is moot. We decline to exercise our discretion to decide the challenged issue in
this case notwithstanding its mootness because the issue raised herein is not “‘capable of
repetition yet likely to evade review.’ [Citation.]” (Williams v. Superior Court (2014)
230 Cal.App.4th 636, 654.)
IV.
DISPOSITION
The appeal is dismissed as moot.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J.
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