In re A.R.

Filed 1/14/10 In re A.R. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sutter)

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Minor A.R. admitted that he came within the provisions of Welfare and Institutions Code section 602 in that he committed voluntary manslaughter.[1] (Pen. Code,  192, subd. (a).) In exchange, an allegation of second degree murder was dismissed. (Pen. Code,  187, subd. (a), 190, subd. (a).) The Colusa County Juvenile Court determined that the minor resided in Sutter County and transferred the case there for disposition. The Sutter County court adjudged the minor its ward and committed him to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF), for a maximum confinement time of 11 years less credit for time served.[2] The court found that the offense was gang related.

On appeal, the minor contends there was insufficient evidence that (1) his welfare required that he be removed from his parents, and (2) the offense was gang related. We modify the judgment by striking the finding the offense was gang related and otherwise affirm the judgment.

FACTS[3]

The minor, who turned 13 just two days after the incident, and the victim, age 13, were neighbors and had been friends until the year prior to this incident. The two boys developed an animosity toward one another after the minor started associating with Norteo gang members and the victim associated with rival Sureo gang members. When the victim would see the minor around town, he would call the minor a Chapete, a derogatory term referring to a Norteo gang member. The minor would often call the victim a scrap, a derogatory name for a Sureo gang member.

On August 13, 2008, the minors mother contacted the principal of his school to inform her that the victim had been harassing the minor on his way home from school. The victim wanted to fight the minor because he was wearing a red shirt.

On August 22, 2008, in Colusa, California, the minor was walking home with two friends. As the minor neared his home, he passed by the victims house. The minor and his friends heard someone in the direction of the victims house make a distinctive whistling sound, known as the southside whistle. Then the minor heard the victim yell the word Cheeks, a term he would use to annoy the minor.

When the minor reached his driveway, the victim emerged through an open portion of a wooden fence. The victim confronted the minor, who called the victim a Scrap. The boys exchanged other insults and physically fought in a parking lot near the minors house. During the fight, the minor used a sharp object to stab the victim multiple times in his chest and ribs.[4]

Following the fight, the victim retreated through the opening in the fence to his backyard. Once there, he realized that he was bleeding and then collapsed on the grass. He was taken by ambulance to a regional medical center and then by helicopter to a facility in Sacramento. Four days after the stabbing, he died of his injuries.

DISCUSSION

I

The minor contends the juvenile court abused its discretion when it removed him from the physical custody of his parents. In his view, no evidence showed the welfare of the minor required removal. We disagree.

The decision of the juvenile court may be reversed on appeal only upon a showing that the court abused its discretion in committing a minor to [DJF]. [Citations.] An appellate court will not lightly substitute its decision for that rendered by the juvenile court. 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. [Citations.] In determining whether there was substantial evidence to support the commitment, we must examine the record presented at the disposition hearing in light of the purposes of the Juvenile Court Law. [Citations.] (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395; see In re Asean D. (1993) 14 Cal.App.4th 467, 473.) Those purposes include the protection and safety of the public; to that end, punishment is now recognized as a rehabilitative tool. ( 202, subds. (a), (b); In re Asean D., supra, at p. 473; In re Michael D., supra, at p. 1396.)

Section 726, subdivision (a) provides that no ward of the court shall be taken from the physical custody of a parent or guardian unless the court makes one of three findings.[5] Because the court did not attempt to make the first or second finding, our review is confined to whether substantial evidence supports the third finding, i.e., [t]hat the welfare of the minor requires that custody be taken from the minors parent or guardian.

A formal order in the language of section 726 is not required; [i]f the transcript of the proceedings shows the substance of a finding [citation] within that section, it is sufficient. (In re John S. (1978) 83 Cal.App.3d 285, 292.)

Here, the juvenile court expressly found that a placement alternative less restrictive than DJF would be inefective [sic] or inappropriate. Because placement with the parents would be less restrictive than DJF, the finding necessarily implies that placement with the parents would be ineffective or inappropriate. The minors welfare required an effective and appropriate placement, which necessitated that custody be taken from the parents.

The record presented at the disposition hearing contains substantial evidence to support a finding that the minors welfare required his removal from his parents.[6] (In re Michael D., supra, 188 Cal.App.3d at p. 1395.) The probation report explained that the minor was not suitable for a group home or camp placement due to the seriousness of his offense and the placements inability to offer long-term treatment and security. The lack of security was highlighted by the fact that camp program participants are allowed to engage in community activities within months of entry into the program. The report noted that placing the minor in an unsecured setting would be placing the community at great risk. Prior to a return to the community, the minor will need a substantial amount of treatment to address his lack of empathy, as well as his gang involvement.

The evidence did not suggest that the parents new home in Sutter County offered the long-term treatment and security that the group home and camp placements lacked. There was no evidence that the home could prevent the minors premature reentry into the community. The juvenile court properly concluded that the minors welfare required his placement in a more secure location than the parents home.

The minor does not claim that the probation reports security concerns were misplaced. Instead, he points to the reports summary of his very stable and ideal home life, his parents intact marriage, and their lack of criminal history or other unfavorable information. This argument fails under our standard of review. Because the evidence reasonably justifies the finding of the juvenile court, the fact that the evidence could also be reconciled with a contrary finding does not warrant reversal of the judgment. (Peoplev.Ceja (1993) 4 Cal.4th 1134, 1139.)

In a related argument, the minor contends the juvenile court abused its discretion by undermining the objectives
of the Juvenile Court system. In his view, those objectives include: (1) promoting the probable benefit of the minor;
(2) requiring that less restrictive alternatives are ineffective or inappropriate; and (3) that the public is protected and safe. He argues that his removal from his parents undermined all three of these policy goals. We are not convinced.

The minor first reprises his contention that his welfare is best served by keeping him with his parents. In his view, the parents can provide a safe and nurturing home for the minor to thrive. He points in particular to the parents drastic step of relocating from their old neighborhood to a new home in a different county that assertedly is free from negative influences. But the issue is not simply whether the minor is safe from the old neighborhood; it is also whether the new neighborhood is safe from the minor. No evidence suggested that the parents new home would provide the minor the substantial amount of treatment that he needs and would prevent his premature reentry into the community.[7]

The minor next contends the probation report rejected less restrictive alternatives to DJF exclusively based on the seriousness of the crime. However, his quotation from the report tellingly omits the passages, summarized above, that describe the minors need for long-term treatment and the alternative placements inability to provide it. No evidence suggested that the parents home could provide both the long-term treatment and the secure environment that the minor required. Because the prospect that the home could do so is speculative at best, the probation departments failure to evaluate the home to resolve that issue was not error.

The minor lastly contends it is unclear whether a DJF commitment can provide sufficient protection to the public. The argument is based on a report filed in litigation in Alameda County Superior Court. However, the report was not before the juvenile court and we decline to consider the report in the first instance. The minors commitment to DJF is supported by substantial evidence. (In re Michael D., supra, 188 Cal.App.3d at p. 1395.)

II

The minor contends the trial courts finding that this is a gang related offense is not supported by sufficient evidence. Specifically, he contends there was insufficient evidence to prove that his offense was for the benefit of, at the direction of, or in association with a criminal street gang. He reasons that the unsupported finding is prejudicial because it requires him to register as a gang member for five years. The point has merit.

Background

Under the heading Evaluation, the probation report stated [t]here is substantial evidence that the minor has been affiliating with the Norteo gang for more than a year, and that the offense was gang related. However, under the heading Recommendation, the report did not request an order that the minor register as a gang member.

At the close of the disposition hearing, the probation officer stated: Your Honor, if I may at the Courts discretion, we were going to put it in but we omitted it accidentally. We are going to request that the crime be found a gang-related offense. The reason we ask for that term is then it would be at no cost to the County for the [DJF] commitment, and we believe that there is evidence to support that request.

The prosecutor concurred that the People were going to request that based upon the minors statements. Defense counsel countered that the issue should be deferred because he wanted to make sure there are no other collateral consequences. The court refused to defer the matter and made the requested finding.

Analysis

The gang registration issue is one of the collateral consequences to which defense counsel alluded when he objected to the probation officers request for a finding. Penal Code section 186.30 provides that any person who has had a petition sustained in juvenile court for [a]ny crime that the court finds is gang related at the time of . . . disposition shall register with the chief of police or the sheriffs office where they reside. (Id.,  186.30, subds. (a), (b)(3).)

Penal Code section 186.31 provides that, at the time of the disposition hearing, the court shall inform any person subject to Penal Code section 186.30 of his or her duty to register. However, receipt of the Penal Code section 186.31 advisement is not made a condition precedent of the Penal Code section 186.30 duty to register. Thus, the minor is subject to the registration requirement, even though the juvenile court did not advise him of that fact. The duty to register continues for five years. (Pen. Code,  186.32, subd. (c).)

A gang registration order is based on a finding that the crime[] the minor committed [was] gang related. This finding is supported by sufficient evidence only if there is evidence that is reasonable, credible, and of solid value supporting each element of gang relatedness. A crime is gang related if it is related to a criminal street gang as defined in [Penal Code] section 186.22, subdivisions (e) and (f). The elements of
this definition require: (1) an ongoing organization or group, (2) of three or more persons, (3) having as one of its primary activities the commission of the crimes enumerated in [Penal Code] section 186.22, subdivision (e)(1)(25), (4) having a common name or symbol, and (5) whose members individually or collectively have engaged in a pattern of criminal gang activity. This pattern of gang activity must consist of: (a) two or more of the offenses enumerated in [Penal Code] section 186.22, subdivision (e)(1)(25), provided that at least one offense occurred after the effective date of the statute; (b) the last offense occurred within three years of the one before it; and (c) the offenses were committed on separate occasions or by two or more persons. (In re Jorge G. (2004) 117 Cal.App.4th 931, 944.)

The Attorney General concedes that there was no specific evidence put forth at the disposition hearing to show that the Norteo gang with which [the minor] associated was a criminal street gang as defined by [Penal Code] section 186.22, subdivisions (e) and (f). We accept the Attorney Generals concession and agree with the parties that the evidence was insufficient under In re Jorge G, supra, 117 Cal.App.4th at page 944.

The Attorney General nevertheless claims the minor forfeited his right to contest that the Norteos are a criminal street gang by failing to object to the probation reports finding that the Norteos are a criminal street gang. We disagree.

The Attorney General relies on cases involving trial court failure to properly make or articulate discretionary sentencing choices (People v. Smith (2001) 24 Cal.4th 849, 852 [parole revocation fine correctable despite failure to object]) and trial court failure to make a minute entry regarding HIV testing (People v. Stowell (2003) 31 Cal.4th 1107, 1112-1113 [omission of a finding of probable cause of fluid transfer from the court docket and minute order is forfeited by failure to object]). The present case is different: the minors claim is insufficiency of evidence, which is forfeited only by failure to file a timely notice of appeal. (People v. Rodriguez (1998) 17 Cal.4th 253, 262.)

In any event, the condition precedent to forfeiture is failure to object. Defense counsel effectively objected to the courts immediate consideration of the probation officers surprise request on the prescient ground that the finding may have untold collateral consequences. Counsel was not required to make a more specific objection, because the probation report had not alerted him that the Penal Code section 186.30 finding would be sought or that certain elements must be proved before the finding could be made.

We thus conclude that the evidence was insufficient to support a finding that the crime was gang related within the meaning of Penal Code section 186.30, subdivision (b)(3).

DISPOSITION

The judgment is modified by striking the finding that the minors offense was gang related. As so modified, the judgment is affirmed. The juvenile court is directed to correct its dispositional minute order to conform to our modification.

NICHOLSON , Acting P. J.

I concur:

BUTZ , J.

I concur fully in this opinion but write separately to note that the probation officer should be ashamed of requesting a gang enhancement solely to save the county money. This is an inexcusable violation of the public trust in his office.

ROBIE , J.

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[1] Further undesignated statutory references are to the Welfare and Institutions Code.

[2] Effective July 1, 2005, the Department of Youth Authority has been renamed the Department of Corrections and Rehabilitation, Division of Juvenile Facilities. ( 1703, subd. (c).) (In re Lemanuel C. (2007) 41 Cal.4th 33, 37, fn. 2.)

[3] Because the matter was resolved by plea, our statement of facts is taken from the probation officers report.

[4] The minor told an investigating officer that he had stabbed the victim 4, 5, 6 times with a ballpoint pen. The minor could not explain to the officer why no blood was visible on the pen. The pathologist who conducted the autopsy on the victim concluded that the victims injuries were more consistent with a knife or similar cutting instrument. A Department of Justice forensic report noted that cuts on the victims shirt were linear and show little stretching, suggesting they were made by a blade or sharp device. The report confirmed that no blood had been detected on the ballpoint pen.

[5] Section 726, subdivision (a) provides: In all cases in which a minor is adjudged a ward or dependent child of the court, the court may limit the control to be exercised over the ward or dependent child by any parent or guardian and shall in its order, clearly and specifically set forth all those limitations, but no ward or dependent child shall be taken from the physical custody of a parent or guardian, unless upon the hearing the court finds one of the following facts:

(1) That the parent or guardian is incapable of providing or has failed or neglected to provide proper maintenance, training, and education for the minor.

(2) That the minor has been tried on probation while in custody and has failed to reform.

(3) That the welfare of the minor requires that custody be taken from the minor's parent or guardian.

[6] The evidence at the disposition hearing consists mainly of the probation report. The only live testimony at the hearing was by members of the victims family.

[7] The probation report noted that the familys income consisted of unemployment compensation. During harvest season, the minors father earned $2,000 per month. Nothing in the report suggests the family was capable of providing the minor his needed treatment.