Opinion
A133142
10-12-2012
In re J.G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.G., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco City & County Super. Ct. No. JW106264
&Alameda County Super. Ct. No. SJ11017390)
J.G. appeals from a dispositional order committing him to out-of-home placement following the juvenile court's findings on two Welfare and Institutions Code section 602 petitions. On the initial dependency petition, the court found that he committed rape in concert (Pen. Code, § 264.1), and rape § 261, subd. (a)(2). On the subsequent petition, the court found that defendant committed assault with a deadly weapon (§ 245, subd. (a)(1)), assault by means of force likely to produce great bodily injury (§ 245, former subd. (a)(1)), and possessing a BB gun at school (§ 626.10, subd. (a)). He contends that the juvenile court abused its discretion by ordering an out-of-home placement. We affirm.
Unless otherwise indicated, further statutory references are to the Penal Code.
FACTUAL BACKGROUND
On April 30, 2010, the San Francisco District Attorney's office filed a delinquency petition alleging that defendant committed rape in concert and one count of rape upon B.W. on or about October 1, 2009 to November 5, 2009. The charges stemmed from an incident in which defendant and two other boys committed the offenses on the victim in the gym at Martin Luther King Middle School. On December 14, 2010, following a contested jurisdictional hearing, the court found the charges to be true.
In May 2010, the court ordered that defendant undergo a psychological evaluation to determine treatment options. On June 15, 2010, Dr. Jonathan French filed his evaluation with the court. Dr. French opined that defendant did not have a psychiatric impairment, but that he was at risk for problems in the community.
The jurisdictional hearing on the second petition was held on June 16, 2011. In this matter, the court sustained the assault charges based on evidence that on November 17, 2010, defendant brought a BB gun to school and shot at the victim in the schoolyard. The shot hit the victim's left eye. A teacher saw defendant point the BB gun at the victim and shoot her.
On June 29, 2011, defendant underwent a sexual offending risk evaluation. Dr. Ralph recommended a residential treatment program due to the nature of defendant's offenses.
On July 27, 2011, the matter was transferred to Alameda County for the dispositional hearing based on defendant's residence there. The dispositional hearing was held on August 30, 2011. The court continued defendant as a ward of the court and ordered an out-of-home placement with a maximum period of confinement of 15 years.
DISCUSSION
Defendant contends that the juvenile court abused its discretion in ordering an out-of-home placement. He argues that there is insufficient evidence in the record to show that the placement meets the statutory goals of rehabilitation and maintenance of family bonds.
" 'An order of disposition, made by the juvenile court, may be reversed by the appellate court only upon a showing of an abuse of discretion . . . .' [Citation.] It is not the responsibility of this court to determine what we believe would be the most appropriate placement for a minor." (In re Khamphouy S. (1993) 12 Cal.App.4th 1130, 1135.) We must review the whole record in the light most favorable to the order below and will not disturb the juvenile court's findings when there is substantial evidence to support them. (Id. at p. 1134; In re Lorenza M. (1989) 212 Cal.App.3d 49, 53.) " 'In determining whether there [is] 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.' " (In re Lorenza M., supra, 212 Cal.App.3d at p. 53.)
Here, the record contains substantial evidence supporting the juvenile court's dispositional order. Although defendant was a first time offender, the court found true the allegations in two separate petitions that he committed several serious and violent offenses including rape and assault with a deadly weapon approximately a year apart. The probation report recommended that defendant be placed in a residential treatment program for adolescent sexual offenders because he was ineligible for outpatient treatment due to his claim that he did not commit the rape. The report noted that defendant's risk for recidivism was in the moderate category for reoffending. This recommendation was consistent with that of Dr. Ralph, who also recommended a structured program for youth who have committed sexual offenses. Dr. Ralph and Dr. French both reported that there were challenges to managing defendant in his home. In particular, Dr. French was concerned that defendant's home life was unstable, his family was currently being investigated by child protective services, and his mother appeared to have issues in handling her parental responsibilities as to defendant's behavior. Dr. French noted mother's history of not being responsive to inquiries concerning defendant and failing to keep appointments. Although Dr. French recommended investigating the home of the paternal grandparents for placement, and defendant, on appeal, suggests that placement with his maternal grandmother should have been ordered, the court rejected a family home placement given the severity of the offenses: "We have two extremely serious offenses committed in a very short period of time. In addition, we have psychological, sociopsychological, and home information that suggests the minor needs a consistent level of supervision, counseling, and monitoring. And based on this minor's and the minor's family history, I have no faith that this can take place in an [in] home setting."
The probation report indicates that defendant was referred to probation for burglary, receiving stolen property and conspiracy in December 2007, but the matter was "counseled" and closed without a petition being filed.
The probation department also experienced difficulties in reaching mother and cited her failure to return telephone calls.
The court, although recognizing that the offenses merited a Department of Juvenile Justice commitment, considered the defendant's age at the time he committed the various offenses and the fact that he had not yet had the benefit of services that the probation department could offer. The court thus urged the probation department "to take into consideration the recommendations of the Guidance Clinic and place the minor in a program that will address his psychological needs, will address his sexual offender status, and will also address the educational requirements and personal circumstances characteristic of this minor."
The record indicates that defendant is of small stature for his age.
In sum, the record reflects that the court acted well within its discretion in committing defendant to an out-of-home placement. Welfare and Institutions Code section 202 emphasizes that the purpose of the juvenile law is (1) "to provide for the protection and safety of the public and each minor under the jurisdiction of the juvenile court" and (2) "to preserve and strengthen the minor's family ties whenever possible, removing the minor from the custody of his or her parents only when necessary for his or her welfare or for the safety and protection of the public." The court ordered an out-of-home placement because it was the only alternative, short of committing defendant to the Department of Juvenile Justice, to address defendant's needs for rehabilitation, education, and care. (See Welf. & Inst. Code, § 202, subd. (b); John L. v. Superior Court (2004) 33 Cal.4th 158, 182-183 [recognizing that purpose of statutory scheme is "to rehabilitate juvenile offenders while both protecting the public and holding the person accountable for his misconduct"].) No abuse of discretion appears.
DISPOSITION
The order is affirmed.
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RIVERA, J.
We concur: ___________
REARDON, ACTING P. J.
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SEPULVEDA, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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