In re Andrew R.

Filed 3/18/08 In re Andrew R. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Andrew R. appeals a dispositional order of the Contra Costa County Juvenile Court, which established him as a ward of that court pursuant to Welfare and Institutions Code section 602.^[1] He claims the court erred in committing him to the countys Boys Ranch, the Orin Allen Youth Rehabilitation Facility (OAYRF). We find no abuse of discretion and affirm.

Background

The prosecution initiated this delinquency proceeding in March 2006, when it filed a petition charging the minor with misdemeanor possession of a locking blade knife on the grounds of Mt. Diablo High School. (See Pen. Code,  626.10, subd. (a).). The probation officers report prepared for the dispositional hearing noted that the minor admittedly associated with the Norteo street gang, and his mother related that he would do anything for the gang. The report further described two prior gang-related misdemeanor chargesthe first resulting from the minors act of spray painting gang graffiti on a park memorial while wearing gang clothing and in possession of gang paraphernalia, and the second arising from the minors fistfight with a rival Sureo gang member on the grounds of Mt. Diablo High School. Both charges had been dismissed without prejudice in November 2005.^[2]

The juvenile court sustained the charge set out in the March 2006 petition in June, and on July 28 adjudged the minor to be a ward of the court. On that date it entered a dispositional order placing him on 45 days of home supervision with juvenile electronic monitoring (JEM).

The terms of the minors probation, among other things, prohibited the minor from possessing weapons, from associating with gang members or participating in gang activities, and from using gang colors, clothing, or paraphernalia. The minor initially complied with these terms. In October 2006, however, a Concord police officer contacted the minor in the company of a known member of the Norteo gang. The minor possessed a hammer that could be used as a weapon and gang-related itemsa red bandana and photographs and videos on the minors cell phone depicting gang associations and activities. On the basis of this contact, his probation officer filed both a notice of probation violation, alleging the foregoing facts, and a supplemental petition charging the minor with felony possession of a deadly weapon and an enhancement alleging the minor had committed the offense in furtherance of a criminal street gang. (See Pen. Code,  186.22, subd. (b)(1), 12020, subd. (a).)

On November 22, 2006, the juvenile court sustained the probation violation, but dismissed the supplemental petition and ordered a continuance of the minors JEM. On December 8, 2006, the court entered a dispositional order on the probation violation, which added an additional 30 days of JEM from the date of that order, and directed the minor to participate in a gang counseling/awareness program.

Less than two months later, on January 11, 2007, the juvenile court sustained another violation of the minors terms of probationa week earlier the minor had been found driving without a license in the company of two validated Norteo gang membersand ordered the minors detention for one weekend in the countys juvenile hall. Later that month, the probation department reported another violationfollowing a denial of the minors request for a suspension of JEM home supervision in order to visit his father who had been seriously injured in a motorcycle accident in Fresno, the minor left anyway. On January 25, the court added five days to the minors JEM for this violation.

The minors probation officer filed yet another notice of probation violation on February 21, 2007. The notice stated the minor had disobeyed school authorities and had engaged in disruptive behavior at high school on February 8, and on February 15 had been found in possession of gang-related insignia at that school. A report submitted in connection with this violation stated that during the first incident the minor had made gang related challenges to another student, and during the second appeared to be attempting deliberately to provoke tension on the school grounds between members of the Norteo gang and members of the rival Sureo gang. When confronted over this conduct, the minor was not at all receptive to the idea that he needed to stop this behavior and follow the rules, but was argumentative and rude both to his probation officer and the schools vice principal. The probation officer additionally reported that the minor had been involved in another verbal confrontation with a student on school grounds on March 2, and had been observed later that day, off school grounds, fighting with that same student. The officer also described an entry the minor had written on his personal web page in Myspace.com, to the effect that a Norteo gang member must be prepared to give [his] life to the defense of La Raza de Norteos.

On March 9, 2007, the juvenile court sustained the probation violations committed the previous month and described above, and ordered the minor detained in juvenile hall pending a dispositional hearing. In his report prepared for the dispositional hearing, the probation officer detailed the minors known gang activities, which we have summarized above, and added that the minors web page in Myspace.com had been filled all year with gang related pictures, colors, symbols, insignias and writings [that] [v]iewed collectively . . . demonstrate[d] a very serious level of gang involvement. With respect to the minors home environment, where he had lived during his probation, the officer reported that the minor had problems getting along with his stepfather, and the police had been previously called to the home to quell disturbances between the two. There was also an ongoing concern that the minor was a negative influence on his younger brother, who was becoming increasingly involved in gang activity himself. The minors mother, in March 2007, had related to the officer that the minor had been hostile and disrespectful towards her, and for that reason she had proposed a plan whereby the minor would live with his father in Fresno instead. The officer reported, however, that there were problems with this plan, including the fact that the father was reportedly bedridden due to the injury he received in his motorcycle accident. The officer also reported that the superintendent of OAYRF had screened the minors case and found him to be an appropriate candidate for the facilitys six-month residential program.

The probation officer concluded that the minor had failed to rehabilitate himself during probation, that he still had significant problem areas that need[ed] to be addressed[, and] also need[ed] to be held accountable for his defiance towards the rules of probation. Given the minors deep involvement with street gangs, his continuing association with a gang during probation, his anger issues and his problems with defiance of authorities, the officer felt that [the minor was] a threat to the community and himself, and that he [would] remain a threat until he [made] a genuine commitment to change. The officer accordingly recommended that the minor be committed to a six-month residential program at OAYRF, deeming such placement to be appropriate and necessary to provide the structure and supervision necessary for him to address his noted problem areas, and one that would hold him appropriately accountable for his conduct.

At the conclusion of the dispositional hearing on March 20, 2007, the juvenile court continued the minor as a ward of the court and adopted the probation officers recommendation to commit the minor to a six-month regular program at OAYRF. This appeal followed. ( 800, subd. (a).)

Discussion

The minor contends the juvenile court abused its discretion in committing him to the OAYRF. He reasons that, whereas the primary problem area to be addressed in his case was his involvement with the Norteo gang, there was insufficient evidence to show that a commitment to OAYRF would appropriately address this problem. The minor suggests that his probation officer simply made the easiest recommendation without regard to whether the OAYRF commitment was in his best interests. He suggests further that a OAYRF commitment would not adequately remove him from the gang milieu he faced in his community, because gang rivalries exist at that facility.

We will reverse a juvenile courts commitment order only on a showing that it abused its discretion in issuing the order. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.) We indulge all reasonable inferences to support the juvenile courts decision and uphold findings supported by substantial evidence. (Id. at p. 1330.) We do not, of course, consider any facts not admitted into evidence at the dispositional hearing, such as the unsupported comments of the minors trial counsel concerning conditions at OAYRF or comments made by the minors mother, to which the minor has adverted in his opening brief.

We observe further that, while the delinquency law requires a juvenile court to consider a disposition that will provide a ward with care, treatment, and guidance in his or her best interests, such care, treatment, and guidance must also be in the best interests of the public, and must be that which holds the minor accountable for his or her behavior and is otherwise appropriate under the circumstances. ( 202, subd. (b).) The guidance provided by the courts disposition may include rehabilitative punishment when appropriate under the circumstances, and such punishment may in turn include commitment to a local detention or treatment facility such as a ranch. ( 202, subds. (b) & (e)(4).) In making a commitment such as the one challenged here, there must be evidence that the commitment will have probable benefit to the minor and that less restrictive alternatives have been ineffective or are otherwise inappropriate, but the juvenile court must consider such evidence together with that which relates to the other purposes to be accomplished by the delinquency lawthat is, the purpose of protecting the public, as well as that of holding the minor accountable for his or her delinquent conduct. (See In re Teofilio A. (1989) 210 Cal.App.3d 571, 575-576.)

We have summarized above the salient facts included in the probation officers report admitted at the dispositional hearing. In our view, those facts provide substantial evidence to support the juvenile courts implied findings (1) that alternatives less restrictive than a OAYRF commitment, such as continued home supervision with JEM or home supervision with the minors father in Fresno, were ineffective or inappropriate; (2) that an OAYRF commitment appropriately served to protect the public and hold the minor accountable for his probation violations; and (3) that the proposed OAYRF would have probable benefit to the minor. While it may be true that the minor might be exposed to gang rivalries at OAYRF, it is also reasonable to inferin favor of the courts decisionthat any such exposure would be subject to a level of supervision and control that would not be available in a less restrictive placement. As the juvenile court commented, while the minor had a genuine desire, finally, to break away from his gang involvement, it seemed clear this could not be accomplished in a less restrictive setting such as the home supervision with JEM in which the minor had already, unsuccessfully, been placed.

We conclude the juvenile court acted well within its discretion when it committed the minor to the OAYRF.

Disposition

The dispositional order of March 20, 2007, is affirmed.

______________________

Marchiano, P.J.

We concur:

______________________

Swager, J.

______________________

Margulies, J.

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^[1]Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2]The probation officer subsequently learned of two additional, earlier police contacts with the minor in December 2004 and March 2005. In the first such contact, the minor was found wearing Norteo gang clothing and in possession of gang paraphernalia, as well as a bat and buck knife. The second incident involved a fight at Glenbrook Middle School initiated by the minor against another student identified as a rival Sureo gang member.