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In Re Adrian C., A Person Coming Under the Juvenile Court Law. v. Adrian C

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO


December 2, 2010

IN RE ADRIAN C., A PERSON COMING UNDER THE JUVENILE COURT LAW. THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ADRIAN C., DEFENDANT AND APPELLANT.

The opinion of the court was delivered by: Richman, J.

In re Adrian C. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appellant Adrian C. appeals from a disposition order of the juvenile court ordering out-of-home placement. As a component of his placement, the court ordered that appellant receive "sexual offender or sexual victimization" treatment. Appellant's court-appointed counsel has asked this court to independently examine the record in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende), to determine if there are any arguable issues that require briefing. Counsel has also identified the sexual offender/sexual victimization component of appellant's placement as an "item[] 'in the record that might arguably support the appeal' " pursuant to Anders v. California (1967) 386 U.S. 738, 744.

Appellant was apprised of his right to file a supplemental brief, but he did not do so. We have conducted our review, conclude there are no arguable issues, and affirm.

BACKGROUND

On September 4, 2009, the District Attorney of Contra Costa County filed a Welfare and Institutions Code section 602*fn1 original petition alleging that two days earlier, appellant committed one count of first degree residential burglary (Pen. Code, § 459/460, subd. (a)). As described in the subsequent probation report, appellant entered the home of his uncle and stole numerous items, including three video game consoles, numerous video games, and some cash, worth an estimated $1,776.00. Appellant admitted having committed the burglary, claiming he was under the influence of marijuana and ecstasy at the time and was "in a tight spot." Appellant, who was 16 at the time of his arrest, had a long history of substance abuse, dating back to when he was exposed as a four-year-old to marijuana by his biological mother.

The district attorney later amended the petition to add one count of felony possession of stolen property (Pen. Code, § 496, subd. (a)). After appellant pleaded no contest to the possession charge, the court sustained the charge and dismissed the burglary count. Appellant was then released on juvenile electronic monitoring (JEM).

Appellant's performance while on JEM was very poor, however. He was suspended from school (a special education program called the Families First Program), after which he left home, apparently roaming the streets and sleeping behind a neighborhood grocery store. When he failed to appear for a September 29, 2009 hearing, the court issued a bench warrant. Two days later, appellant was arrested and transported to juvenile hall.

A September 29, 2009 letter from the Families First Program described appellant's conduct while in the special education program: "Adrian has attended EMQ Families First Day Treatment Program since February 2009. In this short amount of time, Adrian has been suspended at home 9 days, for offenses such as exposing his genitals to peers, coming to school high on drugs, AWOL'ing from Program, damaging the door to the classroom, threatening or harassing peers and staff, refusal to comply with Program expectations, and major classroom disruptions such as punching walls and slamming doors when leaving the class angry. In addition, Adrian has received at least one in-house suspension per week as a consequence for disruptive or inappropriate behavior. On a daily basis in Program, Adrian is disruptive, defiant towards staff directives, and he glorifies his drug use and experiences in juvenile hall. Most recently, Adrian AWOL'ed from program despite staff intervention."

At a December 11, 2009 disposition hearing, the court adjudged appellant a ward of the juvenile court and placed him on probation. The terms of probation included a curfew, abstention from the use or possession of illegal drugs or alcohol, 90 additional days of JEM, 100 hours of community service, and victim restitution.

In March 2010, appellant violated the terms of his probation by staying out past his curfew and consuming alcohol. Shortly thereafter, he was terminated from a substance abuse program for repeatedly defying the no-smoking rule. At an ensuing probation violation hearing, appellant admitted the violation, and the court found him in violation of his probation, continued him on JEM for 30 days, and ordered him to complete a substance abuse treatment program and to submit to random drug testing.

Appellant again violated his probation in April 2010 by failing to adhere to the terms of the home supervision program, leaving the Families First program without permission, removing his ankle monitor, and failing a drug test. After he failed to appear at the probation violation hearing, the court issued a bench warrant. He was arrested, found in violation of probation, and detained at juvenile hall.

In a probation report prepared in advance of a June 22, 2010 disposition hearing, the probation department recounted appellant's family situation, educational progress, substance abuse issues, medical and psychological health, and conduct while on probation and at juvenile hall. Further, according to the report, on an unspecified date, appellant had exposed his genitals to a female student. It also noted that "[t]here had been reports of sexual abuse towards an 8 year old victim" by appellant. Finally, the report noted that appellant was the victim of sexual abuse "some time ago" but that nothing was known about the circumstances.

At the June 22, 2010 disposition hearing, the court ordered appellant detained at juvenile hall pending out-of-home placement, with a maximum custody time of three years. The court ordered that the placement include sexual offender or sexual victimization treatment.

This timely appeal followed.

DISCUSSION

Juvenile delinquency proceedings are typically considered to be civil in nature (§ 203; In re Winship (1970) 397 U.S. 358, 365), and some appellate courts have held that Wende review is inapplicable to civil commitment cases. (See Conservatorship of Ben. C. (2007) 40 Cal.4th 529, 535, 537 [commitment under Lanterman-Petris-Short Act, § 5000 et seq.]; People v. Dobson (2008) 161 Cal.App.4th 1422, 1436-1438 [petition for restoration of sanity after insanity acquittal, Pen. Code, § 1026.2]; People v. Taylor (2008) 160 Cal.App.4th 304, 312-313 [post-conviction commitment under Mentally Disordered Offenders Act, Pen. Code, § 2962 et seq.].)

Nevertheless, we are persuaded that the Wende procedure mandated in criminal proceedings should also apply to appeals from juvenile delinquency orders. (In re Kevin S. (2003) 113 Cal.App.4th 97, 113-119.) In Kevin S., the court found that delinquency proceedings were sufficiently similar to criminal prosecutions to require Wende's independent review of the record if counsel raised no specific issues on appeal. Accordingly, we have reviewed the entire record and have found no issues that merit briefing.

Appellant received notice of the probation violation hearings under section 777. He was represented by counsel at all relevant times, was informed of and waived his trial rights, and was notified of the potential consequences of his admissions. The maximum period of confinement was properly calculated. (§ 726, subd. (c).)

Lastly, as noted above, counsel for appellant identified the sexual offender/sexual victimization treatment component of appellant's placement as an issue that might potentially support an appeal. "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. . . ." (In re Darryl T. (1978) 81 Cal.App.3d 874, 877; In re Khamphouy S. (1993) 12 Cal.App.4th 1130, 1135.) Here, the probation report referred to two different instances of sexual abuse allegedly perpetrated by appellant, and also indicated that appellant himself had been the victim of sexual abuse. In light of this, we cannot conclude the juvenile court abused its discretion in mandating that appellant receive sexual offender treatment as part of his placement.

DISPOSITION

Concluding there are no arguable issues requiring briefing, we affirm the juvenile court's disposition order.

We concur: Kline, P.J. Haerle, J.


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