California Cases December 06, 2019: People v. W.L. (In re W.L.)

Case Description

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.No. SWJ1600687)

OPINION

APPEAL from the Superior Court of Riverside County. Sean Lafferty, Judge. Affirmed.

Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant, W.L. (Minor), born in May 2001, admitted allegations that he had committed a burglary (Pen. Code, § 459; ¶ 1) and grand theft of cash and guns (§ 487, subd. (a); ¶ 2). The juvenile court determined Minor's period of maximum confinement was six years eight months and ordered him placed in Optimist Boys Home and Ranch (Optimist).

The People subsequently filed two petitions for a change in Minor's placement due to Minor's violations of the terms of his placements. The screening committee recommended an out-of-state placement for Minor after his second violation. The juvenile court ordered that an out-of-state placement was warranted.

On appeal, Minor contends the court abused its discretion in ordering an out-of-state placement because the evidence did not support a determination that in-state facilities were either unavailable or inadequate to meet Minor's needs. Minor additionally argues the juvenile court incorrectly calculated Minor's maximum term of confinement. Plaintiff and respondent, the People, maintain the court properly ordered an out-of-state placement, but erred in calculating Minor's maximum term of confinement. We affirm.

On October 17, 2017, an officer was dispatched to the victims' home in response to a report of a completed burglary. The victims informed the officer that unknown suspects had entered the residence; cut a hole in a gun safe; and took several firearms,

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$30,000 in cash, and jewelry. The victims estimated their total loss at $40,000. They advised the officer that their granddaughter might have information regarding the burglary. The victims' granddaughter reported that her boyfriend, R.B., asked to stay the night at the residence; the next morning, he told her he had done something wrong. R.B. said he, G.B., and Minor had broken into the safe and took guns and money.

On October 18, 2017, an officer detained G.B. G.B. informed officers that he and Minor had entered the residence and cut into the safe; R.B. took guns and money from the safe. R.B. gave Minor $500 and one of the guns "to keep his mouth shut." G.B. later sold the gun to R.B. for $200. Officers took Minor into custody that day; he denied any involvement.

In a memorandum to the court filed on October 30, 2017, the probation officer reported that Minor's mother, J.L. (Mother), said she could not participate in Minor's detention hearing. Subsequent to the detention hearing, multiple attempts to contact Mother had been unavailing. Mother had a warrant out for her arrest. Minor asked that probation interview the paternal grandmother (PGM) rather than Mother because Mother had never been reliable in his life and the PGM had taken over a parental position in his life. The probation officer responded that while understandable, he had to conduct the interview with Mother since she was Minor's legal guardian.

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In the probation officer's report filed on November 9, 2017, Mother reported she would be moving out-of-state with her boyfriend within the next three months. A review of Minor's school records reflected he had been placed on an individualized education plan in January 2016. Subsequently, Minor had incurred numerous negative behavioral reports, including being found in possession of a stolen bicycle, smoking marijuana in a restroom, stealing from the ASB storage room, punching another student in the privates, and engaging in mutual combat.

Minor admitted using alcohol and abusing marijuana, methamphetamine, and cocaine. Mother reported Minor had been diagnosed with attention deficit hyperactivity disorder and oppositional defiance disorder, but had discontinued taking his prescribed medication. Mother and Minor's father, between them, had a combined total of 10 prior social services investigations, three of which had been substantiated. Minor's father was serving a four-year prison sentence for robbery and assault with force likely to cause great bodily injury, which began in April 2017.

Minor's history reflected he had been referred to the Youth Accountability Team in January 2016, regarding a misdemeanor allegation of battery. On April 14, 2016, Minor refused the Youth Accountability Team. On April 22, 2016, he was referred to the AWARE program, which was closed when Minor refused to participate in two diversion classes. On November 10, 2016, an initial petition was filed and Minor was granted informal probation, which he successfully completed on May 4, 2017.

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The probation officer noted that this was Minor's fifth referral and second petition before the juvenile court. The probation officer recommended that Minor be placed out of the home in a short-term residential treatment program: "Removal from the community and his family environment would provide the intensive treatment he needs, allowing him to focus on his needs without distractions or temptation within the community or his mother." On November 16, 2017, Minor admitted the allegations in the petition based upon the recommended disposition.

In a November 28, 2017, 15-day review memorandum, the probation officer reported that Minor was involved in a physical altercation with another youth on November 24, 2017. The probation officer reported that Minor required constant redirection and described him as immature. On November 20, 2017, Minor received free time restrictions for failing to comply with staff directions. Minor was eventually placed at Optimist on December 4, 2017.

On March 13, 2018, probation filed a notice of hearing to change Minor's placement. On March 12, 2018, Minor had left the placement and his whereabouts were unknown. In the May 25, 2018, placement review memorandum, probation noted Minor's whereabouts remained unknown. The probation officer described Minor's placement as follows: "Optimist is a structured program that provides daily intensive and comprehensive services such as individual therapy, community meetings, group therapy, multi-family therapy, life skills development, socialization skills, recreational therapeutic activities, structured peer interaction, independent living skills, and substance abuse

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treatment." Minor had struggled adjusting to the rules and expectations of the placement; he refused school, had negative peer and staff interactions, and displayed aggressive behavior.

In January 2018, Minor received incident reports for not following staff directives, poor peer interactions, testing positive for amphetamines and methamphetamines, punching a wall, involvement in a physical altercation, and property damage. On February 7, 2018, Minor received an incident report for throwing a chair in class. Minor finally turned himself in on June 12, 2018.

At the hearing on the proposed change of placement on June 14, 2018, the People requested that Minor be screened for all options, including out-of-state placement. Minor admitted violating the terms of his placement. The juvenile court ordered probation to screen Minor for all options, including an out-of-state placement.

In a June 26, 2018, 15-day review memorandum, probation noted that they had sent screening packets to Alan M. Crogan Youth Treatment and Education Center, New Haven, Boys Republic, Oak Grove, Olive Crest, Woodward Academy, Lakeside Academy, and The Summit Academy. Alan M. Crogan Youth Treatment and Education Center, Boys Republic, and The Summit Academy accepted Minor. New Haven rejected Minor due to concerns regarding Minor's theft history, drug use, and disregard for authority. At the hearing on June 29, 2018, the juvenile court deferred to probation's recommendation to place Minor in-state. On July 9, 2018, probation placed Minor in Boys Republic.

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In a November 21, 2018, placement review memorandum, probation noted Minor had a difficult time following placement structure and staff directives. Minor became disrespectful to his peers and staff. He required redirecting regarding horse play with peers, being "out of bounds," staying in his room, and not following rules in school. He had a difficult time separating himself from negative peers. Nonetheless, probation noted Minor had used counseling to reduce his impulsive behavior.

At the hearing on December 3, 2018, the juvenile court noted: "[Minor], I don't have a lot to say to you because while there are some mentions in here about you making some progress, it's kind of a one step forward, two steps back kind of approach. Especially, if you're getting into it with other kids, if you're using, then you're not doing what you need to be doing at the program. So at some point Boys Republic and the Probation Department will say, 'This is not working. So we have to try something else.' And you know how that process goes. I don't want that for you. If you like Boys Republic and you think it can be effective for you, then you've got to turn it around and do stuff." The court set another six-month placement review hearing, finding placement outside the home continued to be necessary.

On December 24, 2018, probation filed a second notice of hearing to change Minor's placement. On September 27, 2018, Minor left the placement without permission, but retuned the same day. On November 27, 2018, Minor was removed from class for profanity, refusal to follow instructions, and refusal to do his work. On December 2, 2018, Minor failed to comply with directives to cease touching staff

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members. On November 29 and December 13, 2018, Minor tested positive for marijuana. On December 26, 2018, Minor admitted the alleged violations of his placement.

In the January 14, 2019, memorandum to the juvenile court, probation reported: "On January 3, 2019, the [M]inor's matter was screened before the [Interagency Placement Committee (the committee)] for appropriate placement options. It was determined the [M]inor's treatment needs are individual counseling, family counseling, grief counseling, drug treatment, impulse control, and peer issues. The [c]ommittee felt . . . [M]inor's identified problems and treatment needs would be adequately addressed in an out-of-home placement, preferably out of state, given his behaviors have not improved at two of the previous in-state placements where he was placed."

Probation sent screening packets to Woodward, Lakeside, and George Jr. Behavioral health for Wraparound services had concerns regarding Minor's ability to remain home, as well as Mother's ability to supervise him: "The fact that he has not been able to complete a residential program raises concerns for his ability to maintain without the high level of structure and supervision."

At the hearing on January 17, 2019, Minor's counsel expressed disagreement with an out-of-state placement. Counsel requested the matter be continued so that the PGM's

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home could be screened. The court observed: "Well, the problem is . . . Wraparound already said they do not feel he would be an appropriate candidate. So that would negate a local placement with family, from my perspective." The court set the matter for a contested hearing.

At the contested hearing on February 1, 2019, Minor's counsel called two members of the committee to testify. Candice Miranda testified the committee determined out-of-state placement would be appropriate because "this was his second placement. The behaviors he displayed while at Boys Republic and his previous [absent without leave] from Optimist determined that . . . [M]inor at that point was not suitable for in-state placement or for Wraparound services, and we recommended out-of-state placement at that point due to his previous behaviors."

The committee did not consider placement with the PGM because Minor's "behaviors in placement have not proven that he can be successful in a home setting at this point." The committee considered Minor's following needs: "His needs considered were individual counseling, grief counseling, self-esteem training, family services, behavior health services, drug treatment, anger management, impulse control, peer issues, IOP services, emancipation skills, and credit recovery program."

Miranda testified the committee did not consider in-state placement because "[t]he behaviors that he displayed showed that an out-of-state placement was stronger, [a] [more] secur[e] facility, and more intense therapeutic needs would probably—would be more beneficial for . . . [M]inor." She noted that Boys Republic, Minor's previous

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placement, was an open facility, close to the freeway and a shopping center where one has access to "pretty much anything." "As opposed to a facility we would say like in Iowa or in Michigan where it is not close to any living environments, or community centers, or homes, or freeways, as you know—there's no quick access for him to receive anything at that point. It is in a secluded area." Miranda noted that there was no lockdown facility that she supervised in California and that she was not aware of any remote California facilities that offered the services which were offered by the out-of-state facilities the committee considered.

Naomi Durley, another member of the committee, testified that Minor's needs could not be met by placement in the community: "So based on . . . [Minor's] history of absconding, poor academic performance, poor family connections, with the exception of his paternal grandmother, we felt that his therapeutic needs have not been met." Durley continued: "So one of the main issues is that although all of the local facilities were not considered, they always do come up in conversation within the committee. And we considered one of the furthest facilities up north that we use, which is actually in Fresno. And that's Promesa. And even with Promesa, it's still in Fresno. [Minor] . . . could still leave the placement like he did at Boys Republic and Optimist to obtain drugs . . . . So we considered that. We didn't believe that was a good fit." "Because [Preomesa is]

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s[t]ill in somewhat of a big city area. He still has access to drugs and to get himself involved in certain issues like he has at Optimist or Boys Republic."

Durley continued: "[T]he reason why we considered out-of-state placement was because of his history [of] absconding. We figured that if we can get him into a more secure setting, he can focus on this therapeutic needs, on his academic performance, and it will really force him to focus on succeeding in those areas." "[O]ur out of state facilities are located in more rural areas."

The People argued: "It sounds like from the testimony that the out-of-state placements given their rural settings are going to avoid the problems that happened in California placements where he was able to run across the street or abscond." The court found "an out-of-state placement is the least restrictive, given his needs and considering the information that is provided to me about what he's done in the past and what's available to us today." The court found: "In-state facilities or programs have been determined to be unavailable or inadequate to meet the needs of . . . [M]inor."

Minor contends the court abused its discretion in ordering an out-of-state placement because the evidence did not support a determination that in-state facilities were unavailable or inadequate to meet Minor's needs. Minor additionally argues the juvenile court incorrectly calculated Minor's maximum term of confinement. The People maintain the court properly ordered an out-of-state placement, but erred in calculating Minor's maximum term of confinement.

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A. Out-of-state Placement

Minor contends the court abused its discretion in ordering an out-of-state placement because the evidence did not support a determination that in-state facilities were either unavailable or inadequate to meet Minor's needs. We disagree.

"Under [Welfare and Institutions Code] section 727.1, subdivision (b)(1), a court may not order out-of-state placement of a ward unless '[i]n-state facilities or programs have been determined to be unavailable or inadequate to meet the needs of the minor.'" ( In re Oscar A . (2013) 217 Cal.App.4th 750, 756.) "The court need not determine all in-state facilities are unavailable. It may determine in-state facilities are either unavailable or inadequate [citation]. The mere existence of other facilities in California does not mean the court abused its discretion by ordering out-of-state placement." ( Id . at p. 757.) "The court retains discretion to decide in-state facilities [are] simply inadequate to rehabilitate a minor." ( Id . at p. 758.)

"The placement decision is particularly fact intensive and requires a fully informed analysis by the juvenile court of the minor's needs and the programs' services. For this reason, we do not prescribe the Oscar A . investigation or any other specific method of justifying a non-California placement to be applied in all cases. However, the investigation must leave the juvenile court in a position where it may reasonably make the finding required by [Welfare and Institutions Code] section 727.1[, subdivision] (b)(1)." ( In re Khalid B . (2015) 233 Cal.App.4th 1285, 1291.)

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"'"We review a juvenile court's commitment decision for abuse of discretion, indulging all reasonable inferences to support its decision." [Citation.] "'[D]iscretion is abused whenever the court exceeds the bounds of all reason, all of the circumstances being considered.'" [Citation.] We will not disturb the juvenile court's findings when there is substantial evidence to support them. [Citation.] "'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.'"' [Citation.] 'A trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence.' [Citation.]" ( In re Khalid B ., supra , 233 Cal.App.4th at p. 1288.)

Here, the original placement review determined that "[r]emoval from the community and [Minor's] family environment would provide the intensive treatment he needs, allowing him to focus on his needs without distractions or temptation within the community or his mother." This was because Minor already had a lengthy history of substance use and abuse in addition to the commission of significant delinquent offenses.

After probation placed Minor in Optimist, Minor received incident reports for not following staff directives, poor peer interactions, testing positive for amphetamines and methamphetamines, punching a wall, involvement in a physical altercation, and property damage. On March 12, 2018, Minor had left the placement and did not turn himself in until June 12, 2017, three months later. At the hearing on probation's notice to change Minor's placement, the juvenile court ordered probation to screen Minor for all options,

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including an out-of-state placement. One of the placements considered rejected Minor due to concerns regarding Minor's theft history, drug use, and disregard for authority. At the hearing on June 29, 2018, the juvenile court deferred to probation's recommendation to place Minor in-state.

On September 27, 2018, Minor left the placement without permission, but retuned the same day. On November 27, 2018, Minor was removed from class for profanity, refusal to follow instructions, and refusal to do his work. On December 2, 2018, Minor failed to comply with directives to cease touching staff members. On November 29 and December 13, 2018, Minor tested positive for marijuana. Probation filed a second notice for hearing on a change of Minor's placement.

The committee, in considering Minor's placement needs, determined that he should be placed "preferably out of state, given his behaviors have not improved at two of the previous in-state placements where he was placed." "The behaviors that he displayed showed that an out-of-state placement was stronger, [a] [more] secur[e] facility, and more intense therapeutic needs would probably—would be more beneficial for . . . [M]inor." This was because out-of-state facilities were more remote than in-state facilities which would make it more difficult for Minor to abscond, even for short periods of time, to obtain drugs. According to both members of the committee who testified, there were no in-state facilities of which they were aware that were sufficiently remote to obviate Minor's penchant to leave and obtain drugs. This was sufficient evidence with

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which to conclude that in-state placements were either unavailable or inadequate to meet Minor's needs.

Indeed, between both his placements, Minor had tested positive for drugs on three separate occasions, twice for marijuana and once for methamphetamine. The implication of the reports and the testimonies of the members of the committee was that Minor had simply walked off his placements into the surrounding urban or suburban communities to obtain the drugs. Thus, a more remote and rural placement was needed to obviate Minor's penchant for easily obtaining drugs just outside his placements. Likewise, Minor had twice absconded from his placements, once for a day and once for three months. Again, in the opinions of the committee members and probation, a more remote and rural placement was necessary to negate Minor's tendency to easily leave placements located in urban or suburban areas.

In determining which placement would better meet Minor's needs, in-state facilities were considered, but rejected because they were insufficiently remote. Miranda testified she supervised a number of in-state facilities, none of which offered sufficient remoteness to alleviate Minor's penchant for obtaining drugs or going absent without leave. Durley testified that the most remote in-state facility of which she was aware and which was discussed by the committee was Promesa in Fresno, but that it was insufficiently remote to remedy the problems Minor had in previous placements. Likewise, the committee considered the two prior in-state placements at which Minor had

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previously been placed. Thus, the juvenile court's determination that in-state placements were inadequate was within its discretion.

Minor contends that the decision in In re Khalid B ., supra , 233 Cal.App.4th 1285 compels a determination that the court here abused its discretion. We disagree. In Khalid , the juvenile court ordered the minor placed in an out-of-state placement at the dispositional hearing on the first petition filed against Minor. ( Id . at p. 1287.) Here, the court ordered Minor placed out-of-state only after the third dispositional hearing after Minor twice admitted allegations that he had violated the terms of his placement at two separate in-state facilities.

In holding the juvenile court abused its discretion in placing Minor in an out-of-state facility, the Khalid court noted that the juvenile probation department had evaluated only two in-state facilities. ( In re Khalid B ., supra , 233 Cal.App.4th at p. 1289.) Here, as noted above, the committee explicitly considered three in-state facilities. Moreover, the Khalid court noted that the "placement decision is particularly fact intensive and requires a fully informed analysis by the juvenile court of the minor's needs and the programs' services. For this reason, we do not prescribe [any particular] investigation or any other specific method of justifying a non-California placement to be applied in all cases." ( Id . at p. 1291.) Thus, the decision in Khalid was limited to the facts of its own case. Here, as discussed above, the need to place Minor in a facility which was sufficiently remote to

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obviate his ability to easily obtain drugs or abscond entirely supported the juvenile court's discretional determination to place Minor in a more remote, out-of-state facility.

Minor also maintains the failure of the court and committee to consider placement of Minor with the PGM was an abuse of discretion. However, probation noted that behavioral health for Wraparound services had concerns regarding Minor's ability to remain home: "The fact that he has not been able to complete a residential program raises concerns for his ability to maintain without the high level of structure and supervision." This, of course, would apply to the PGM's home because she would be incapable of offering the "high level of structure and supervision" which residential programs would provide. Miranda testified Minor "was not suitable for . . . Wraparound services . . . ." Miranda testified the committee did not consider placement with the PGM because Minor's "behaviors in placement have not proven that he can be successful in a home setting at this point." As the court observed, "the problem is . . . Wraparound already said they do not feel [Minor] would be an appropriate candidate. So that would negate a local placement with family, from my perspective." This would, of course, include placement with the PGM. The court's finding that out-of-state placement was necessary was within its discretion.

B. Maximum Term of Confinement

Minor contends the court erred in determining his maximum term of confinement was six years eight months because the period of confinement on the grand theft allegation should have been stayed pursuant to Penal Code section 654. Minor maintains

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his maximum period of confinement should be corrected to six years. The People agree. We disagree.

"A minor may appeal a judgment in a Welfare and Institutions Code section 601 or 602 proceeding 'in the same manner as any final judgment.' [Citation.] The juvenile court's jurisdictional findings are not immediately appealable and the appeal is taken from the order made after the disposition hearing. [Citation.] The minor may also appeal any subsequent order in such proceedings 'as from an order after judgment.' [Citation.]" ( In re Shaun R . (2010) 188 Cal.App.4th 1129, 1138.)

"An appeal in a juvenile case must generally be filed 'within 60 days after the rendition of the judgment or the making of the order being appealed.' [Citations.] 'A timely notice of appeal, as a general matter, is "essential to appellate jurisdiction."' [Citation.] 'In general, an appealable order that is not appealed becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment.' [Citation.]" ( In re Shaun R ., supra , 188 Cal.App.4th at p. 1138; see People v . Sapienza (2019) 39 Cal.App.5th 58, 68.)

The juvenile court computed Minor's maximum period of confinement at the dispositional hearing on November 16, 2017. At the hearing on the first change of placement on December 26, 2018, when Minor admitted the violations of the conditions of his placement, the court reminded him that the maximum period of his confinement was six years eight months. Any appeal from the court's determination of Minor's maximum period of confinement should have been made within 60 days from the order

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of November 16, 2017. Minor did not file an appeal until February 21, 2019, long after the time for filing an appeal from the first dispositional hearing had expired. Thus, this court lacks jurisdiction to evaluate any Penal Code section 654 analysis because Minor failed to timely appeal from the initial dispositional order.

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
Acting P. J.

We concur:

SLOUGH
J.

MENETREZ
J.