In re Alejandro O. CA2/4 ( 2014 )

Filed 5/13/14 In re Alejandro O. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re ALEJANDRO O., a Person B251542
Coming Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. JJ20081)
THE PEOPLE,
Plaintiff and Respondent,
v.
ALEJANDRO O.,
Defendant and Appellant.
APPEAL from a dispositional order of the Superior Court of Los Angeles
County, S. Fumiko Wasserman, Judge. Affirmed.
Stephen Borgo, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Steven D.
Matthews and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
Alejandro O. (minor) appeals from an order of the juvenile court detaining
him in juvenile hall pending a suitable placement. He contends the court abused its
discretion in failing to consider the remedial steps he had voluntarily undertaken,
and declining to place him at home on probation. Finding no error, we affirm.
FACTUAL AND PROCEDURAL HISTORY
On March 22, 2013, the prosecutor filed a two-count wardship petition under
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Welfare and Institutions Code section 602, alleging that the minor committed
battery on a school employee (Pen. Code, § 243.6) and public intoxication
(Pen. Code, § 647, subd. (f)). The court referred the matter to the probation
department for a section 654.2 pre-plea report.
According to the probation officer’s report, on January 24, 2013, the minor
was brought to the nurse’s office at his high school by school security because he
appeared extremely intoxicated. After security left and the nurse was left alone
with the minor, the nurse attempted to reach the minor’s mother by telephone, but
had to leave a message. The minor then requested permission to go to the
bathroom to throw up. At the same time, the minor’s mother called the nurse. The
nurse answered the phone, turning her back briefly to the minor, whereupon the
minor began hitting her in the back of her head with his fist. When she turned
around, he struck her in the face, forehead, and upper body. Eventually, the nurse
was able to get help. Police subsequently arrested the minor and took him to the
hospital. After waiving his rights, he told the officers he drank a water bottle-sized
container filled with tequila and rum that morning, after his mother dropped him
off, but before school started.
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Unless otherwise stated, all further statutory references are to the Welfare
and Institutions Code.
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The report also noted that the minor had a discipline record dating back four
years to when he was 11 years old. There were numerous acts of violence against
other students (punching them in their genitals), defiance, disruption, and
marijuana issues that required multiple interventions by school personnel.
According to the report, the minor’s mother stated that he was depressed and had
experienced anger issues and behavioral problems since junior high school. The
report noted that the minor’s behavior had improved since the incident.
As a result of the attack, the victim suffered from debilitating headaches,
blurry vision, post traumatic stress disorder, anxiety and memory loss. She could
not return to work and was on disability. The report noted that the minor
expressed no remorse, and that the mother expressed no emotion when she was
told how seriously the victim was injured by her son.
The probation report recommended that the minor be declared a ward of the
court and placed in a camp community placement for the following reasons: “It is
felt that the minor poses a threat to the community. He severely injured the victim
without provocation. He is using marijuana and alcohol without consequences in
the family home. The minor needs to be in a secure setting where he will be held
accountable for his actions and receive consequences.”
At the adjudication hearing, the minor’s counsel submitted on count 2
(public intoxication), but argued that the minor was so intoxicated, he did not
remember attacking the nurse. The nurse described the attack and testified that she
was still suffering from headaches and had not returned to work.
The minor admitted that on the morning of the incident he drank alcohol
obtained from home, but claimed it was the first time he had done so. He stated
that he decided to drink because he was depressed after breaking up with his
girlfriend. He remembered walking to the nurse’s office, but could not recall
anything until he woke up in the hospital. He stated he was not a violent person,
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was not in his “right mind” at the time, and did not intend to hurt the nurse. He felt
very bad about the incident, and was disappointed in himself.
The court found the allegations true and sustained the petition. At the
dispositional hearing, the minor’s counsel argued that the minor had taken
proactive steps since the incident. He had completed a substance abuse program,
submitted to 12 random drug tests and received 12 negative results. Additionally,
he had entered an anger management counseling program. His mother testified
that he had improved his behavior and school grades. He had agreed to all
suggested counseling, and “[i]f more counseling is necessary, then we are willing
to do more counseling.”
The prosecutor argued that at a minimum, the court should order the minor
to placement. She noted that the minor had a long history of behavioral problems,
and expressed her concern that the minor’s recent good behavior was a short-term
reaction to his fear of being placed in camp.
The juvenile court declared the minor a ward of the court under section 602.
It rejected the probation report’s recommendation of a camp placement, but further
determined that “[c]ontinuance in the home of the parent is contrary to the minor’s
welfare.” The court temporarily placed the minor with the probation department
until suitable placement could be found.
The minor timely appealed.
DISCUSSION
“A juvenile court’s commitment order may be reversed on appeal only upon
a showing the court abused its discretion. [Citation.] ‘“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.’”
[Citation.]” (In re Robert H. (2002) 96 Cal. App. 4th 1317, 1329-1330.) Appellant
contends the court abused its discretion in deciding against returning appellant
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home on probation and instead ordering suitable placement. Specifically, he
argues the court failed to give “enough consideration” to the steps appellant had
taken to rehabilitate himself. As explained below, we disagree.
Pursuant to section 202, in determining the proper care, treatment and
guidance for a minor under its jurisdiction, a juvenile court “shall consider the
safety and protection of the public, the importance of redressing injuries to victims,
and the best interests of the minor.” (§ 202, subd. (d).) The disposition must be
“consistent with [the minor’s] best interest,” “hold[] [him] accountable for [his]
behavior,” and be “appropriate for [his] circumstances.” (§ 202, subd. (b).) The
court acted in conformity with those principles in the instant case. Here, the minor
attacked a school nurse without provocation while she was attempting to assist
him. The attack targeted the victim’s head, leaving her with debilitating
headaches, blurry vision, memory loss, post-traumatic stress and anxiety. Two
months after the attack, the victim had not fully recovered and was still on
disability. The gravity of the offense alone would have justified the court’s order
of camp placement for the safety and protection of the public.
The court properly considered appellant’s circumstances. He had obtained
the alcohol from his mother’s home. He had a history of committing acts of
violence against his fellow students. The escalation of appellant’s violent behavior
-- from punching fellow students to beating a school nurse about the head and face
-- indicated that the minor needed treatment not being provided at home.
Appellant contends his recent improved behavior showed that he had changed.
The court, however, was entitled to evaluate the credibility of the minor and to
determine the weight to be given his recent behavior. (See In re Robert H., supra,
96 Cal.App.4th at p. 1329 [juvenile court entitled to evaluate credibility of minor
and weight to be afforded psychological evaluation].) In light of appellant’s
behavior over the past several years, the court acted within its discretion in
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determining that any improvement in appellant’s behavior since the attack on the
nurse was insufficient to support his remaining home on probation. On this record,
the court properly exercised its discretion by concluding the minor should be
committed to suitable placement.
We find no merit to the suggestion that the court’s silence on appellant’s
post-incident behavior indicated it had failed to consider such behavior or accord it
any weight. In this regard, In re Ricky H. (1981) 30 Cal. 3d 176 is instructive.
There, the appellant minor argued that the trial court abused its discretion in
committing him to the California Youth Authority without giving adequate
consideration to less restrictive alternatives, such as placement in the local county
youth center. (Id. at p. 179.) The minor contended the lack of inquiry or comment
by the judge at the dispositional hearing established that the court had failed to
consider less restrictive alternatives. (Id. at p. 183.) The Supreme Court rejected
the contention:
“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 or completely failed to evaluate appellant’s suitability
for the Youth Authority. Moreover, the silence of the judge regarding his
reasons for making a Youth Authority commitment has never been held to
violate statutory or constitutional requirements. [Citation.] . . . [T]he
absence of inquiry does not establish that the superior court failed to
consider other placements.” (In re Ricky H., supra, 30 Cal.3d at pp. 183-
184.)
Here, the court heard testimony from appellant and his mother about his
behavior following the incident. It heard argument from appellant’s counsel that
his recent behavior supported returning him home on probation. The court read the
probation report, which recommended camp placement despite the recent
improved behavior. It also heard from the prosecutor, who argued -- at a minimum
-- for placement outside the home. After considering all the evidence and
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arguments, the court rejected both camp placement and returning appellant home,
and ordered suitable placement. We note that the court apparently accorded
appellant’s behavior some weight as the court rejected the recommendation for
camp placement. On this record, we find the court considered appellant’s recent
behavior in determining the appropriate disposition and did not abuse its discretion
in ordering suitable placement.
DISPOSITION
The dispositional order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.
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