In re K.G.
Filed 7/2/13 In re K.G. CA1/1
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opinion has not been certified for publication or ordered published for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
In re K.G.,
a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
K.G.,
Defendant and Appellant.
A136731
(San
Francisco City
& County
Super. Ct.
No. JW106598)
Appellant and defendant K.G. appeals
from the dispositional order of the juvenile court following a negotiated
resolution of a third Welfare and Institutions Code section 602 petition,
pursuant to which defendant admitted committing felony assault (Pen. Code,
§ 245, subd. (a)(4))
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while in juvenile hall. His appellate counsel has
raised no issues and asks this court for an
determine whether there are any issues that would, if resolved favorably to
defendant, result in reversal or modification of the judgment. (People v. Kelly
(2006) 40 Cal.4th 106; People v. Wende
(1979) 25 Cal.3d 436.) Defendant was notified
of his right to file a supplemental brief, but has not done so. Upon independent review of the record,
we conclude no arguable issues are presented for review, and affirm the
disposition order.
Background
Starting in November 2010, the
Francisco District Attorney filed a series of Welfare and Institutions Code
section 602 petitions against defendant.
At the time the first petition was filed, defendant was 14 years
old. He was born in El
Salvador, and when he was four years old,
his parents emigrated to the United States. He remained in El
Salvador with his grandparents until 2005,
when he joined his parents in the United States. After his parents separated the following
year, his mother went through a year of depression. Defendant started associating with juveniles
his mother suspected were gang members, and began becoming a “terror†at
home.
On November 23, 2010, the San Francisco District Attorney
filed a Welfare and Institutions Code section 602 petition alleging defendant
possessed marijuana for sale in violation of Health and Safety Code section
11359, subdivision (a)). Defendant was
released pending receipt of narcotics results.
On returning home, defendant promptly sought additional marijuana, and
shortly thereafter was “jumped†by Sureño gang members at a new school because
he “flashed†Norteño signs. Defendant
exuded contempt and disrespect for his parents, the probation officer and the
legal proceedings.
On March 2, 2011, the
and released defendant subject to numerous terms and conditions, including drug
testing. Defendant’s conduct continued
as before, and he tested positive for marijuana throughout the month. On April 7, pursuant to a negotiated
disposition, defendant admitted to being an accessory to a felony (§ 32),
and on April 4 was placed on formal probation.
Less than two months later, on June
29, 2011, the district attorney filed a second petition alleging defendant had
participated in two robberies, an assault and attempted murder for the benefit
of a street gang. The district attorney
also filed a petition to revoke his probation and a motion to determine he was
unfit for adjudication in the juvenile court system. Defendant and three other males assaulted,
robbed and repeatedly stabbed the victim.
Nine months later, on March 28,
2012, the matters were resolved by defendant admitting to one count
each of receiving stolen property, robbery and assault. All other allegations and enhancements, and
the petition to revoke probation were dismissed. Following a contested dispositional hearing
on June 5, the court declared defendant a ward, placed him in juvenile hall for
two years, and set his maximum term of confinement at seven years four months,
with 350 days’ credit for time served.
The court at one point expressed interest in placing defendant at the
Log Cabin Ranch School, but the court and counsel believed, given his
immigration and customs enforcement (ICE) hold, he was not eligible for such
placement under Probation Department rules or policies.
Two months later, on August 1, 2012,
the district attorney filed a third petition, alleging defendant, while in
juvenile hall, committed felony assault with force likely to produce great
bodily injury and for the benefit of a street gang (§§ 245, subd. (a)(4),
12022.7 & 186.22), and re-alleging the street gang participation allegation
that had been dismissed as part of the negotiated resolution of the second
petition. Defendant admitted the felony
assault allegation, and all other allegations were dismissed. Given defendant’s continuing gang
affiliation, the Probation Department was of the opinion continued placement at
juvenile hall was not beneficial and contrary to his rehabilitation, and
recommended placement at the Department of Juvenile Facilities (DJF), where
there were additional programs that could assist him. In a dispositional request, defendant
challenged what he had understood was his ineligibility for the Log Cabin Ranch
School. He pointed out the Probation
Department’s policy regarding undocumented persons, policy 8.12, which
Probation had cited to support its position on the school, said nothing about
excluding juveniles with ICE holds from the school. In fact, it included the statement: “Probation Officers may not inquire about the
juvenile’s or family member’s immigration status and may not make detention
decisions based on actual or perceived immigration status.†The issue was discussed at the disposition
hearing, and the court asked the Probation Department to investigate and
continued the hearing.
At the continued hearing, the court,
counsel and senior probation staff conferred in-chambers, and the court
thereafter summarized the discussion on the record. The court stated: “We had some discussions off the record. I think we can summarize some of the
discussion this way, and that is that the Probation Department has a policy
against sending undocumented youths to the Log Cabin Ranch because it’s an
unsecured facility. And in the past
there have been problems with escapees who knew that there was an ICE detainer
hold on them and they absconded from the premises and committed crimes while
they were down there. But there’s no
legal prohibition on sending [undocumented youths with ICE holds] . . . to an unsecured
facility; it’s just the policy of the Probation Department based upon past
experience. [¶] So I think that was
the issue that raised at the last session.
We wanted to get a determination on that. And I think we have resolved that.†After listening to further argument on
disposition, the court redeclared wardship and placed defendant in the DJF for
a period of no more than five years, with credit for 487 days in custody.
In
light of the negotiated resolution of the August 2012 petition and defendant’s
admission of felony assault, appellate review is limited to post admission
proceedings. (See People v. Shelton
780.) A juvenile court’s dispositional order may be reversed
on appeal only upon a showing the court abused its discretion. “ ‘ “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.]â€
(In re Robert H. (2002)
96 Cal.App.4th 1317, 1330.)
Defendant was ably
represented by counsel during all proceedings on the petition, including the
and admonitions in connection with his admission. At the disposition hearing, the juvenile
court heard argument by counsel and in light of that, continued the hearing to
address defendant’s challenge to the Probation Department’s position on placement
at the Log Cabin Ranch School. That
issue was adequately clarified, and the juvenile court acted well within its
discretion in placing defendant at DJF, given his criminal history and the extent of the programs and
services that will be provided to him at DJF.
Disposition
After a full review of the
record, we find no arguable issues and affirm the disposition order.
_________________________
Banke,
J.
We concur:
_________________________
Margulies, Acting P. J.
_________________________
Sepulveda, J.
unless otherwise indicated.
Retired Associate Justice of the Court of Appeal, First Appellate
District, Division Four, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
