People v. Southern (In re Southern)
| Decision Date | 07 March 2017 |
| Docket Number | No. A149010,A149010 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re GREGORY S., a Person coming Under the Juvenile Court Law. THE PEOPLE, v. GREGORY S. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. J1400048)
Minor Gregory S. appeals from the juvenile court's disposition findings and order, issued in a wardship proceeding initiated pursuant to Welfare and Institutions Code section 602,1 committing him to the Division of Juvenile Justice (DJJ). Gregory S. contends the juvenile court abused its discretion by failing to sufficiently consider less restrictive alternatives and relying on speculation in committing him to DJJ. We affirm the court's disposition findings and order.
In August 2012, Gregory, then fifteen years old, participated in a robbery with two others in which an iPhone was stolen and the victim assaulted. The Alameda County District Attorney filed a wardship petition. In September 2012, Gregory admitted to one count of robbery in violation of Penal Code section 211, and the court adjudged him award of the court. Gregory was placed in his father's home with GPS supervision.
From January 2013 through May 2013, four supplemental petitions under section 777 were filed indicating that Gregory had violated the court's orders, such as by not attending school and not following the rules of the GPS contract. Gregory admitted to these violations and the court ordered further conditions on his probation.
Another supplemental petition was filed under section 777 in December 2013. His father reported to the GPS office that his son was not following house rules, such as by using drugs. In January 2014, Gregory admitted to violating a court order regarding his GPS, which allegation the court found to be true. The court also transferred his wardship to the Contra Costa County juvenile court for disposition because his father lived in that county.
Later in January 2014, the Contra Costa County juvenile court issued a disposition order that Gregory be placed in the Orin Allen Rehabilitation Facility (Orin Allen) for six months. In August 2014, the probation department reported that Gregory's overall performance at Orin Allen was satisfactory. He had positive relationships with peers and with staff, performed well during his program time and completed acceptable school work. He was released from Orin Allen, the court ruled that his parole was successfully completed and he remained under the court's jurisdiction. Previous orders, including those relating to his probation, remained in effect.
However, Gregory soon engaged in more problematic behaviors. In September 2014, the probation department reported that Gregory had violated probation by leaving his home without permission and that his whereabouts were unknown. His father reported that Gregory was not attending school. A supplemental petition was filed alleging a probation violation and a warrant was issued for his arrest.
In November 2014, Gregory was involved in a high speed chase in a stolen vehicle with Santa Rosa police. "Due to Gregory's disregard for the safety of himself and others," the department later wrote, "a Patrol Intervention Technique . . . was applied by the pursuing police vehicle forcing Gregory's vehicle to collide into the center concrete divider of the highway." He was arrested and transported to Contra Costa Countyjuvenile hall. He told the probation department that his relationship with his father was " 'horrible' " and that he wanted to move back in with his mother, who lived in Oakland.
In December 2014, the court held a contested disposition hearing regarding a sustained probation violation (the record is unclear which one). He was subsequently ordered placed in the out-of-home Rite of Passage program. The department reported that he did "well" there, including regarding his overall conduct with staff and peers, his school work and athletics. The department reported in November 2015 that he earned his high school diploma and successfully completed the program. The court ordered that Gregory, having turned eighteen years old, be placed in a transitional independent living plan as a non-minor dependent of the court. He moved into a transitional housing apartment with certain conditions, including that he attend college or work and keep in monthly contact with the department.
On January 12, 2016, the police received a report from an Antioch resident that he saw three persons in an absent neighbor's backyard and heard the sound of glass breaking. An investigating officer found a screen removed and a window smashed at the residence. Police questioned three persons, including Gregory, on a trail behind the residence. One had a bleeding hand and another was in possession of a pair of socks. Gregory had fresh mud on his shoes, which matched a trail of muddy footprints that led from the back fence of the residence. Antioch police arrested the three for residential burglary. Gregory was later released and the district attorney decided not to file charges, but Gregory failed to report to the probation department that he had had contact with police. A probation violation was filed and a warrant issued for his arrest. Over the next couple of months, he contacted the probation department by phone, but did not disclose his whereabouts.
On May 21, 2016, a California Highway Patrol office reported chasing a station wagon that was traveling at a high rate of speed on Interstate 680. The station wagon accelerated to over 100 miles an hour and collided with another vehicle. The driver, later identified as Gregory, fled on foot but was later taken into custody behind a fast food restaurant. The wagon was reported stolen. Gregory told the probation department hehad been staying with his mother, a friend and his girlfriend at different locations, had stayed out of trouble, and had thought about turning himself in but did not want to stay in jail for a long period of time.
In a May 2016 hearing, the court was advised that Gregory would admit to violating the terms of his probation by failing to report his contact with police to the probation department as required. The court advised Gregory of his waiver of rights and the consequences of such an admission, including that the court could, based on his violation, commit him to the Division of Juvenile Justice. Gregory admitted to the probation violation, which the court found to have occurred.
In a June 14, 2016 supplemental petition report to the court, the department stated that Gregory was "facing" charges in criminal court (it is unclear if these charges were actually filed against him) for conspiring to attempt a residential burglary with two adults, auto theft, driving without a license, hit and run causing property damage and fleeing from a police officer with reckless driving. The department reported that Gregory was unsuitable for placement in a ranch, Orin Allen or out-of-home placement because he was 18 years old and had a high school diploma. He was suitable for commitment to the Youthful Offender Treatment Program (YOTP).
The department further reported that Gregory
At the dispositional hearing, held on June 14, 2016, the court stated that it was inclined to issue a DJJ commitment based on Gregory's history, age and sophisticated criminal conduct. It granted a continuance to give Gregory's counsel more time toprepare a response.
At the continued dispositional hearing, held on July 12, 2016, the probation department maintained its recommendation that Gregory be committed to YOTP. The court questioned whether Gregory, who was about to turn 19 years old, could be committed to YOTP. The probation officer said she believed so and the court did not again refer to his age as a bar.
Defense counsel acknowledged that Gregory had "not done well overall on probation" and his recent probation violation and the information that was presented to the court was "troubling." However, counsel argued Gregory had "done some really good stuff while on probation" and also had done well in the Rite of Passage program. Defense counsel, while acknowledging that the court had "had numerous hearings in which you heard about both YOTP and DJJ," argued that YOTP was "going to better empower Greg in the long run to lead a crime-free and productive life" and was "the ideal option" for Greg at that point. He noted that YOTP was a custodial setting, thereby solving any issues of public safety, was of 10 to 12 months duration, allowed Gregory's parents to visit, and offered cognitive behavioral therapy.
On the other hand, Gregory's counsel continued, DJJ would be "much, much farther away from his family" and was a longer program. At DJJ, counsel said, Gregory "would be getting the same services that he would at YOTP," but he would be "farther away from home for a longer period of time."
The prosecutor agreed with the court's inclination toward DJJ. She...
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