People v. Hector H. (In re Hector H.)

• Decision Date: 20 June 2017
• Docket Number: D070373
• Court: California Court of Appeals Court of Appeals
• Parties: In re HECTOR H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. HECTOR H., Defendant and Appellant.

In re HECTOR H., a Person Coming Under the Juvenile Court Law.THE PEOPLE, Plaintiff and Respondent, v. HECTOR H., Defendant and Appellant.

D070373

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

June 20, 2017

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J235108)

APPEAL from an order of the Superior Court of San Diego County, Browder A. Willis, Judge. Affirmed.

Daniel Yeager, 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, Barry Carlton, Heidi Salerno and Elizabeth Renner, Deputy Attorneys General, for Plaintiff and Respondent.

Hector H. appeals from a juvenile court disposition order committing him to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ). He contends the court abused its discretion in committing him to the DJJ without adequate consideration of reasonable alternatives and without making necessary findings about his special educational needs under California Rules of Court,¹ rule 5.651(b)(2), and seeks remand to allow for further assessment of his educational needs. Hector further contends the court erred in ordering restitution because he did not cause the victim's loss. We conclude the disposition order was not an abuse of the juvenile court's discretion and the restitution order was proper. We therefore affirm both orders.

FACTUAL AND PROCEDURAL BACKGROUND

Hector's history of delinquency began in 2014, at the age of 13, when he committed battery on a disabled female minor after school and then vandalized the home of another minor who had informed school officials of Hector's conduct. In May 2014, Hector admitted to misdemeanor battery and vandalism, and the court declared him a ward of the court under Welfare and Institutions Code² section 602 and committed him to the Short Term Offender Program (STOP). Thereafter, Hector committed multiple probation violations, several of which involved leaving his placement.

Hector admitted to additional misdemeanor charges in 2015, including resisting an officer, falsely identifying himself to an officer, escaping from a juvenile facility, and knowingly receiving a stolen vehicle. The juvenile court addressed Hector's various probation violations and offenses by placing him in the following programs or facilities: Turning Hearts Center, Reflections North, Community Unit, Youth Day Center, the 56-day Behavior Modification Program, Breaking Cycles, and Campo Juvenile Ranch Facility. The court also ordered home supervision on several occasions and supervision by the Juvenile Gang Suppression Unit (JGSU).

Hector was in custody between August 26, 2015, and November 19, 2015, and during that time he was involved in three assaults (among a total of 10 violent incidents), and was placed in administrative segregation due to the severity of the assaults, which appeared to be gang-related.³ In late December 2015, while housed at Camp Barrett, Hector attacked a rival gang member and resisted a probation officer who attempted to stop the attack, causing the officer to hit his head on the floor. After the assault, Hector was moved to the East Mesa Juvenile Detention Facility, where he assaulted another rivalgang member a few days later. In February 2016, Hector admitted to felony assault and misdemeanor resisting an officer.

The probation department had previously submitted a social study evaluating Hector. The social study noted Hector's history of nine school suspensions for offenses such as "stolen property," bullying, and fighting. The social study indicated Hector had an individualized educational plan (IEP), qualified for special education services as a result of a " 'Visual Processing and Attention' " learning disability, and participated in special education classes.⁴ Hector also had received counseling for two years, as recommended by his IEP.

Shortly before the disposition hearing, the probation department filed a supplemental report, recommending Hector be committed to the DJJ. The report described screening Hector's case with the JGSU, who concluded the DJJ was the most suitable placement for Hector due to his gang entrenchment, history of violence and the nature of his current offenses. The DJJ screening officer also considered Hector's case and indicated he would qualify for placement at DJJ; would undergo a medical, mental health, substance abuse, educational, dental and sexual offender screening upon intake; and would be placed in the facility that best suits his needs, with access to evidence-based programming addressing, among other things, victim awareness, gang involvement, and anger management. In addition, the screening officer for the Youthful Offender Unit(YOU) program concluded Hector was not suitable for YOU and would benefit from services provided by the DJJ.⁵

The probation office's DJJ recommendation was based on the severity of Hector's continued violent behavior⁶; his blatant disregard for prior rehabilitative opportunities; his admitted association with the Diablos gang; his admissions that he would do anything for the gang, including participation in gang fights to support his "homies;" and his statement that he could see himself going to "county or to the pen." The probation officer further referenced Hector's lack of remorse for injuring a probation officer at Camp Barrett and reported that when she asked Hector what he would do if given the opportunity for a new life, he had told her he "would 'just do this all over again.' " She also quoted Hector as describing the environment at YOU as follows: "The homies are chillin right now and we have enemies in there. But if they fight then I'll hop in." The probation officer opined that removing Hector from his comfort zone and fellow gang members may curb his behaviors. In addition, the probation office's report touted the benefits available to Hector at DJJ, including the mental health and educational services, and gang curriculum through the IMPACT program, which the DJJ characterized as showing promising results in reducing gang-related violence. The report also attachedprogram information describing the DJJ's educational intake assessment, which includes a review of a minor's most recent IEP, and referring to the availability of a "full continuum of Special Education programming" at each DJJ site, including counseling services if required by an IEP.

Hector filed a motion for alternative disposition, seeking placement in either YOU or Camp Barrett, and attached a report by psychologist Richard J. Jordan, who had evaluated Hector. In his report, Dr. Jordan opined the "primary factor influencing the minor's poor choices appears to be his gang identification" and characterized his assaultive behaviors as resulting less from poor impulse control than from Hector's conscious decision to follow gang rules and mores. Dr. Jordan noted Hector's IEP several times in the report and also referred to Hector's participation in special education classes. Hector's test results revealed he had a below-average composite IQ of 79, comprised of a very low nonverbal score and an average-range verbal score. Dr. Jordan surmised the weak nonverbal score could relate to his visual processing deficits, as described in his IEP, and stated that although Hector's test results "do not clearly point toward a learning disability, the determination of this is deferred to the more thorough assessment process of the minor's IEP." Dr. Jordan recommended Hector continue therapy, with anger management and "psychoeducation related to gang lifestyle;" participate in substance abuse testing and treatment; undergo a psychotropic medication evaluation; and obtain continuing academic support through his IEP.

The juvenile court held a contested disposition hearing in March 2016. The court stated it had reviewed the probation report and the psychological evaluation and heardtestimony from Hector and his mother and grandmother. Following arguments of counsel, the juvenile court adopted the probation department's recommendation and ordered Hector committed to the DJJ.

In making its ruling, the court explained that Hector's prior comments regarding his behavior and how he chose to live his life, along with his escalating pattern of criminal behavior, were of major concern to the court. The court described the final choice as between YOU and the DJJ, noting it had eliminated Camp Barrett from consideration, and determined the DJJ would be the better option because it would remove Hector from the Diablos and give him the opportunity to get his high school education.⁷ The court further stated its belief that the DJJ's IMPACT program and psychological and educational component would be a "better fit" for Hector, helping him move "from this entrenched position to a more productive position." At the conclusion of the hearing, the court expressed its hope that Hector would be able to finish high school while at the DJJ.

In the dispositional order, the court stated it had "considered all of the facts and circumstances of this case, including the entire court file." The court's review of Hector's file is further evident from its underlining of various portions of the latest probation report and Hector's psychological evaluation, including notations in the paragraph directly below Dr. Jordan's recommendation that Hector obtain continuing academicsupport through his IEP. However, the court indicated in its minute order and in the commitment order (form JV-732) that Hector "is not an individual with exceptional needs." In a...