People v. Jimmy P. (50 Cal. App. 4th 1679, 1996)

Opinion

PHELAN, P. J.

In this case we hold that our Supreme Court’s decision in People v. Harvey (1979) 25 Cal.3d 754 [159 Cal.Rptr. 696, 602 P.2d 396] (Harvey), which precludes reliance upon the facts relating to charges dismissed as part of a plea bargain in reaching a sentencing decision, is inapplicable when a juvenile court determines the proper placement for a ward. We conclude the statutory scheme contemplates consideration of all available reliable, social and behavioral evidence bearing upon the minor’s fitness in reaching the placement decision. Under that scheme, a minor can have no reasonable expectation that conduct underlying dismissed allegations will not be looked to as a factor in deciding the appropriate placement.

Factual and Procedural Background

In March 1994, appellant admitted a charge of petty theft, was found to be a ward, and was placed with his mother with intervention to take place by “Families First.” In June 1994, a supplemental petition charging appellant with robbery was sustained. He was then placed in a nine-month local “Boys Ranch” program. While at the ranch, appellant “consistently refused to follow staff directions or adhere to program guidelines.” He was returned to court and given “. . . one additional opportunity in a group home placement.” He was sent to St. John’s School For Boys in Southern California on May 31, 1995. On July 17, 1995, a fifth supplemental petition was filed under Welfare and Institutions Code section 777, alleging the disposition was ineffective. Specifically, the petition alleged: “On or about July 14, 1995, he was terminated and removed from the St. John’s School For Boys facility . . . [and] said minor is beyond control necessitating his detention pending further case planning.” On July 21, 1995, appellant admitted the third allegation under count 1 of the fifth supplemental petition, “AWOL from the facility.” The other four allegations in numbered paragraphs were to be stricken.

At a contested disposition hearing on August 24,1995, appellant testified, in apparent explanation of why he went “AWOL,” that he was continuously harassed and repeatedly assaulted by Southern California gang members during the month and half he was at St. John’s home. He claimed the staff did not care and would do nothing about it. They refused to transfer him to another unit. He testified that, on the day he left St. John’s, he “wasn’t clicking very right,” and left because he was “having too many problems . . . He also testified he needed help with his drug and alcohol problem.

Appellant’s mother testified that he was not a “real problem” for her and was not out of her control. She stated his problems began at age 14 when he started “. . . hanging around with a group of boys that didn’t have money and their lifestyle was to go out and get it the best way they could.” She welcomed him back in her home, but wanted “[w]hatever is causing him to go in this pathway, I want that dealt with.” She, too, wanted appellant to get drug and alcohol counseling.

At the close of the hearing, the juvenile court noted that appellant was “extremely difficult to place.” After commenting the court had received positive reports concerning the program at St. John’s, the court focused on the termination report from that facility which had been incorporated in the probation officer’s report. The court read an excerpt from the termination report concerning appellant’s fighting, assaultive behavior toward staff and refusal to comply with the norms of conduct mandated by the facility. The court also commented on appellant’s conduct at the disposition hearing, noting that it had “an idea what the problems are with Mr. [P.j’s behavior . . .” since he was “sitting in court smiling . . . like this was a joke [and] just not a serious thing” while his attorney was questioning the probation officer. The court concluded that there were no other local, less restrictive programs available which would change appellant’s behavior and committed him to the California Youth Authority.

Discussion

Appellant argues that, in selecting placement in the California Youth Authority, the juvenile court improperly considered facts relating to allegations which were dismissed. He contends that without a “Harvey” waiver, the court could not weigh those circumstances in its dispositional decision. As noted at the outset of this opinion, we do not agree.

The fifth supplemental petition brought under Welfare and Institutions Code section 777 alleged: “Jimmy [P.], a minor, having been declared a Ward by order of the Juvenile Court on [M]arch 22, 1994, did violate the provision of said order by the following acts or omissions: [‘IQ On or about July 14, 1995, he was terminated and removed from the St. John’s School For Boys facility for: [<]Q 1. fighting [‘JQ 2. refusal to comply with facility norms [^0 3. AWOL from the facility [f| 4. inciting others to AWOL [