Opinion
A150146
03-23-2018
In re M.K., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. M.K., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 and County Super. Ct. No. JW16-6118)
Appellant M.K. appeals after the juvenile court sustained allegations of assault by force likely to produce great bodily injury, vandalism over $400, and misdemeanor battery in a juvenile wardship petition. (See Welf. & Inst. Code, § 602.) On appeal, appellant contends (1) substantial evidence does not support the juvenile court's finding that she committed assault by force likely to produce great bodily injury; (2) the court abused its discretion when it denied the defense motion to recuse the San Francisco County Office of the District Attorney, Juvenile Division; and (3) the court abused its discretion when it committed her to out of home placement. We shall affirm the juvenile court's orders.
PROCEDURAL BACKGROUND
On May 20, 2016, a juvenile wardship petition was filed, pursuant to Welfare and Institutions Code section 602, subdivision (a), charging appellant with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)—count I); assault by force likely to cause great bodily injury (§ 245, subd. (a)(4)—count II); vandalism over $400 (§ 594 subd. (b)(1)—count III); and misdemeanor battery (§ 242—count IV).
All further statutory references are to the Penal Code unless otherwise indicated.
On July 26, 2016, at a joint jurisdictional hearing for appellant and four co-minors charged with the same offenses, the court granted appellant's motion to dismiss count I of the petition, but found the other three counts true. The court declared appellant a ward of the court and continued her on home supervision pending disposition.
On September 12, 2016, appellant was booked into juvenile hall for violating home detention. She was ordered detained on September 14.
At the September 27, 2016 contested dispositional hearing, the court released appellant to the Euclid Girls' Shelter for a 90-day trial period.
On December 8, 2016, appellant was again booked into juvenile hall for a violation and on December 13, was ordered detained pending disposition.
On December 27, 2016, at the second contested dispositional hearing, the court committed appellant to the chief probation officer for out of home placement. The court determined that appellant's maximum period of confinement was 4 years and 10 months.
Also on December 27, 2016, appellant filed a notice of appeal.
FACTUAL BACKGROUND
Petitioner's Case
Mohammad Tajamal testified that he worked at a 7-Eleven store in San Francisco. Around 6:30 p.m. on May 18, 2016, a group of eight juveniles—three females and five males—came into the store. Tajamal's coworker, Sarabarett Singh Johal, told him that the juveniles were taking items from the store and leaving without paying for them. After three of the juveniles left the store, Johal asked Tajamal to follow them. Tajamal opened the door, but saw that the juveniles had run fast and were far away, so he stayed at the door. He also saw that five of the juveniles were still in the store, making slurpees near the microwave. The remaining juveniles yelled obscenities at Tajamal and asked why he was watching them.
Tajamal identified the five co-minors in the courtroom, including appellant, as having been among the eight juveniles in the store on May 18, 2016.
Tajamal testified that appellant remained in the store after most of the other juveniles had left. He saw her at the soda fountain, "making a drink" in a 7-Eleven cup and microwaving food she said she had brought into the store. She got mad at Tajamal and loudly yelled obscenities such as "Bitch," and "You nigger," asking why he was watching her. He heard appellant tell the other juveniles that she would " 'teach him a lesson. He's asking for money.' " She also used a lot of profanities and said, " 'Let's beat him up.' " All eight juveniles then picked up stones that were under a nearby tree and began throwing stones at Tajamal, who was outside the store. As he tried to protect his face and eyes, a stone hit him on the wrist. Stones also hit him on the chest and legs. He explained that, " 'first, it was my chest and stomach. And there were a lot of stones coming; so it hit my hand, and then the stones were coming to my head so that I put the hand on my face.' " In terms of injuries, Tajamal's wrist hurt and turned red and swollen after being hit by a stone. He showed that injury to a police officer and then to a doctor. The pain in his wrist lasted for a week. He also had pain in his chest for one or two days.
Counsel for one of the other minors asked that the record reflect that Tajamal had pointed to his chest from the neck down and "his inner left wrist, close to the base of the thumb," during his testimony regarding where he was hit.
As the juveniles threw the stones, they were saying things like, " 'I've hit him. You also hit him,' " and "they were happy about it." When Tajamal went behind a tree, the juveniles moved to the street and started throwing stones at the store windows. Appellant and the other minors present in court were among the eight juveniles who threw stones at him and the windows. Tajamal specifically saw appellant go to the tree and bend over just before he saw her come back towards the store and throw stones at him from approximately 20 to 30 feet away. After Tajamal hid behind the tree, he saw appellant throwing stones at the store windows.
While the juveniles were throwing stones at him, Tajamal said to appellant, " 'you shouldn't be doing this because you first threw a drink at me, and you're throwing stones at me, and you haven't paid for anything.' " Appellant responded, " 'You want our money? You got your money now?' " Tajamal also described what the other four minors in the courtroom said and did while throwing stones at him. When he was behind the tree, he saw the juveniles throwing stones in the direction of the store windows, but he did not actually see where the stones landed. He explained: " 'I'm trying to save myself, but they are going in that direction,' " toward the windows.
Eventually, Tajamal went back inside the store and watched the juveniles throwing stones at the windows, two of which were cracked by the stones. He ran into the store because he was scared and thought the stones were going to hit him in the head or eyes. Eventually the juveniles moved away from the store. The customers in the store were scared to leave and Tajamal's coworker told him to stand by the door with a stick, to guard the store. The coworker said he had already called the police. Tajamal went outside with a stick, and when he told the eight juveniles the police were coming, they ran away.
Around 9:30 that evening, Tajamal went to another location where he understood the police had stopped some people. When he arrived, there were five juveniles there, including appellant and the other four minors who were in the courtroom, all of whom he identified to police as having been among the juveniles who threw the stones.
On cross-examination, Tajamal testified that three of the minors had left the scene while he was trying to cover himself to avoid getting hit in the face with a stone. When he took his hand off of his face, they were gone. When asked about the clothing of the girl who left early and was not arrested, Tajamal said she was dressed much like appellant and the other female minor in the courtroom. During the attack, he was trying to protect the store and did not pay attention to clothes; he "only saw their faces."
San Francisco Police Officer Nicholas Sepulveda testified that he was dispatched to the 7-Eleven around 6:25 p.m. on May 18, 2016. When he arrived, Sepulveda observed that two windows at the front of the store were shattered and one appeared to have a hole in the pane. Other than the hole, the shattered glass had not been knocked out of the window. Sepulveda saw rocks on the sidewalk in front of the store. He saw two for certain, and there were "others in the area, but [he] did not recall the exact number." Sepulveda described the stones as "small river stones" that were "maybe three inches by four inches, give or take. Two inches."
Sepulveda reviewed the store's surveillance video, which showed a group of juveniles coming in and out of the store. He was able to clearly see five or six of the juveniles on the video. The store manager indicated that the juveniles shown in the video were the suspects who were involved in the later altercation, and Sepulveda took still photographs of the juveniles he could see in the video. Sepulveda also spoke with Tajamal, who was upset and had a welt on his wrist, although he said he was not injured and did not need medical treatment. Tajamal did not mention any injuries other than the welt on his wrist, which Sepulveda saw was a little red and had some minor discoloration. Sepulveda took a photograph of Tajamal's arm, which he noted on cross-examination seemed to show discoloration on the inside elbow of the left arm. Tajamal told Sepulveda that he had let appellant use the store's bathroom, but told her to leave when he saw her mixing alcohol into a drink. She then threw a cup of soda on him as she left the store. Tajamal also said that he had grabbed a stick and went outside the store with it.
When asked where the injury on the wrist was, Sepulveda pointed to "his left wrist, just at the base of his left thumb."
Approximately 9:30 p.m., while still at the store, Sepulveda received radio notification that potential suspects had been detained nearby. He went to the location, which was a couple of blocks away. Singh, the store manager; Tajamal; and Johal, another store employee, were also at the scene. Police had detained five suspects. Sepulveda recognized the five individuals who were detained as the same individuals he saw earlier in the surveillance video. He conducted a cold show of the suspects with Tajamal. Upon viewing appellant, Tajamal "stated that she threw a drink on him in the store and then used, I quote, profanity at him. Then he stated as the group was walking away from the store, she stated, I quote, fuck that guy, and picked up some rocks and began throwing them at him. She also—he stated that one of the rocks hit him in, I believe, the left thigh. And she also threw rocks at the store windows." Tajamal also identified the four additional suspects who had been detained at the scene—the other four minors in the courtroom—as having thrown rocks at him and at the store window.
After reviewing his report to refresh his recollection, Sepulveda testified that Tajamal had said that one of the rocks appellant threw hit him in the left leg.
Minor's Case
Co-minor J.R. testified that she entered the 7-Eleven store on the evening of May 18, 2016, with the four co-minors and two other minors. J.R. then asked Tajamal if she could use the restroom, and he told her to go ahead. When she returned from the bathroom, appellant and two other minors were using the microwave to make food "because Tajamal said it was okay." J.R. picked up "the jug container" and asked Tajamal for the price. He said it was not for sale and to get out of the store. The minors all exited the store, but "Tajamal came outside and was cursing at us, calling us 'bitches.' And he grabbed his penis." He also called them " 'little niggers' " before going back into the store and returning with a baseball bat, which he was swinging. When asked what the baseball bat looked like, J.R. testified it was half of a wooden mop, and Tajamal was walking toward the minors, "swinging it at us in a sword-like fashion." At that point, all of the minors walked backwards about 20 feet, retreating. Tajamal did not hit them with the mop. J.R. then told appellant, " 'Let's go,' " and the two of them started walking away. The other minors followed them.
After they left the scene, the five co-minors went to Chinatown to get something to eat, then went to Westfield, and then to Target. When they went to Target, officers approached them and said there "was an incident at the 7-Eleven store and we matched the description."
J.R. testified that none of the minors threw any rocks that day.
Appellant testified that she went to the 7-Eleven on May 18, 2016, with five or seven friends. She went inside the store to heat up her pizza, which she brought into the store along with a bottle of Coke that she had gotten at Walgreens. Tajamal gave her permission to use the microwave. After the pizza was hot she took two coffee filters to put under it. Tajamal came toward her and "was being disrespectful out of nowhere." He pushed her arm and said, " 'I don't have to listen to no bitch. Get out. Get out. Get out.' " Appellant opened her soda and "poured it towards him" in an up and down motion. She then walked out of the store as Tajamal threw something at her.
Appellant's friends were waiting outside. She never said anything to them about teaching Tajamal a lesson or beating him up. Tajamal came outside yelling and swinging a baseball bat. As he swung the bat, she and her friends were staring at him. Appellant never picked up a rock and threw it at Tajamal.
DISCUSSION
I. Substantial Evidence that Appellant Committed Assault
by Force Likely to Produce Great Bodily Injury
Appellant contends substantial evidence does not support the juvenile court's finding that she committed assault by force likely to produce great bodily injury.
In assessing the sufficiency of the evidence, "[o]ur review is governed by the same principles applicable to adult criminal appeals. [Citation.] Our function is 'to determine whether the record contains any substantial evidence tending to support the finding of the trier of fact, and in considering this question we must view this evidence in the light most favorable to the finding.' [Citation.]" (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1328.)
Section 245, subdivision (a)(4) " 'prohibits an assault by means of force likely to produce great bodily injury, not the use of force which does in fact produce such injury. While . . . the results of an assault are often highly probative of the amount of force used, they cannot be conclusive.' [Citation.] . . . Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate. [Citations.] ' "The crime . . . , like other assaults may be committed without the infliction of any physical injury, and even though no blow is actually struck. [Citation.] The issue, therefore, is not whether serious injury was caused, but whether the force used was such as would be likely to cause it." ' [Citation.]" (People v. McDaniel (2008) 159 Cal.App.4th 736, 748 (McDaniel); see also People v. Aguilar (1997) 16 Cal.4th 1023, 1028 [since statute focuses "on force likely to produce great bodily injury, whether the victim in fact suffers any harm is immaterial"].)
According to appellant, the record in this case "is completely devoid of competent evidence regarding the force with which [appellant] threw stones at Tajamal." We disagree. First, the evidence shows that at least one of the stones was thrown with sufficient force to cause a welt and redness on Tajamal's arm, with which he was covering his face to protect himself. Had his arm not been there, the stone almost certainly would have hit him in the face, which-especially if it hit him in the eye, mouth, or temple—would have likely caused great bodily injury. (See McDaniel, supra, 159 Cal.App.4th at p. 748.) This case differs from People v. Duke (1985) 174 Cal.App.3d 296, 303, cited by appellant, in which the appellate court stated that a court looks "to the force actually used by the appellant," not the force that the appellant "could have used," to determine if the force was likely to cause great bodily injury to the victim, since the latter determination "would involve gross speculation on the part of the jury as to what the appellant would have done if he had not stopped of his own accord or had been stopped by outside forces." (Ibid.) Here, unlike in Duke, the evidence supports the court's finding that the force appellant actually used in throwing two to four inch stones directly at Tajamal was likely to cause great bodily injury. (See McDaniel, at p. 748.)
Appellant further argues that the evidence shows that Tajamal was not sure which minor threw which particular stones, and that Tajamal's testimony was inconsistent as to who threw the stones that hit his body and where his injuries were. First, Tajamal testified that he saw appellant throwing stones at him and the store windows. That he could not say exactly which minor threw which stone that caused precisely what damage is irrelevant, given that statements by appellant and other minors, as well as their conduct, demonstrated that the minors shared an intent to hit Tajamal with the stones. (See In re Paul A. (1980) 111 Cal.App.3d 928, 932, 940-941 [with no apparent evidence regarding which of a group of four minors in a car threw a rock that hit victim's temple and broke his skull, appellate court found substantial evidence supported "the finding that the four occupants of the [vehicle] were all responsible principals" to the assault].) Second, to the extent there were any inconsistencies or lack of clarity in Tajamal's testimony as to which parts of his body were hit, there plainly is evidence in the record that the minors, including appellant, threw stones, some of which hit Tajamal. Moreover, it was for the juvenile court to resolve conflicts in the evidence and assess the credibility of the witnesses, including Tajamal and appellant. (See People v. Friend (2009) 47 Cal.4th 1, 41.)
Substantial evidence supports the juvenile court's finding that appellant assaulted Tajamal by "means of force likely to produce great bodily injury." (§ 245, subd. (a)(4); see In re Muhammed C., supra, 95 Cal.App.4th at p. 1329.)
II. Motion to Recuse the Juvenile Division of the District Attorney's Office
Appellant contends the juvenile court abused its discretion when it denied the defense motion to recuse the San Francisco County Office of the District Attorney, Juvenile Division.
On July 19, 2016, the second day of the contested jurisdictional hearing in this case, appellant and two of the co-minors were arrested during the lunch recess. Based on events related to the arrests and later detention hearings of the three co-minors, appellant's counsel filed a motion to recuse the district attorney's office and also joined in the similar motions of counsel for the other two co-minors. In her opening brief, appellant observes that the recusal motion was based on the following alleged conflict of interest: "(1) the prosecutor and her trial assistant . . . were allegedly threatened by co-minors in the case, and Tajamal reported to Lacy [the prosecutor] that a co-minor threatened him, making members of the district attorney's office potential victims of and witnesses to criminal conduct by individuals they were currently prosecuting; and (2) the prosecutor demonstrated bias by working with the probation department to facilitate appellant's and her two co-minors' arrest during the second day of the contested jurisdictional hearing, and by making false and deleterious comments about the minors' behavior in court."
On July 20, 2016, following arguments by counsel, the juvenile court denied the defense motion, stating that based on authorities cited by the prosecutor, "the court is satisfied that under the circumstances of this case, that the district attorney's office should not be disqualified in this case. I'm satisfied that from what I've seen, the district attorney—this new incident occurred not during the preparation of this case, but rather in the middle of the case or at least after the start of the case. And there's nothing that I can see that the district attorney can do to affect the fairness of this trial since the evidence that she will present will relate to the allegations in the petition and there's very little room for any discretion in terms of what evidence she will present. She's already presented the direct examination of the witness, Mr. Tajamal, and from then on there's nothing—there's no planning, there's no discretion in terms of charges or allegations of enhancements, anything of that nature that's involved in this case. . . ."
A motion for disqualification of a district attorney made pursuant to section 1424 "may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial." (§ 1424, subd. (a)(1).) "The statute thus articulates a two-part test: '(i) is there a conflict of interest?; and (ii) is the conflict so severe as to disqualify the district attorney from acting?' [Citation.]" (Hambarian v. Superior Court (2002) 27 Cal.4th 826, 833.) "On review of the trial court's denial of a recusal motion, '[o]ur role is to determine whether there is substantial evidence to support the [trial court's factual] findings [citation], and, based on those findings, whether the trial court abused its discretion in denying the motion.' [Citations.]" (People v. Vasquez (2006) 39 Cal.4th 47, 56.)
Here, we conclude appellant's claim cannot succeed because even assuming, without deciding, that the court abused its discretion when it denied the recusal motion, appellant has not shown that she was prejudiced thereby. (See People v. Vasquez, supra, 39 Cal.4th at p. 66 [applying state standard of error articulated in People v. Watson (1956) 46 Cal.2d 818, 836 to erroneous denial of a motion to recuse district attorney].) Appellant's sole ground for claiming prejudice is "that, after presenting its case-in-chief, the prosecutor proceeded to adjudication on the charge of assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)) when the evidence supported, at most a lesser included misdemeanor offense." We have found, however, that the evidence presented at the jurisdictional hearing was sufficient to support the trial court's finding that appellant violated subdivision (a)(4) of section 245. (See pt. I., ante.) Therefore, it is not reasonably probable that the result would have been different had the court granted the recusal motion. (See Watson, at p. 836.)
III. Appellant's Commitment to Out of Home Placement
Appellant contends the court abused its discretion when it committed her to out of home placement.
On July 26, 2016, at the conclusion of the jurisdictional hearing in this case, the court continued appellant on home supervision pending disposition. However, on September 12, 2016, appellant was booked into juvenile hall for violating home detention. She was ordered detained on September 14. The probation department's detention report stated that appellant was out of compliance with her home detention because she had failed to charge her GPS monitor, which meant that she could not be monitored for five days. She was late to school on a daily basis and missed classes. She had refused to drug test and had allegedly placed toilet water in the testing bottle. She also got into a physical altercation with another minor. Finally, after she was taken into custody at juvenile hall, appellant had made threats to staff and tested positive for marijuana use.
Subsequently on September 27, 2016, at the conclusion of the first dispositional hearing, the court (Hon. Linda Colfax) released appellant to the Euclid Girls' Shelter for a 90-day trial period. The court explained its disposition as follows: "This court has tried the least restrictive option. And the court appreciates both the law and the needs of children to be in their homes and the least restrictive option should be tried. And to that end, this court has tried that. [¶] I released [appellant] back in June on home detention. She was placed on probation in July. And there have been issues with probation. . . ." The court continued: "I am not going to place [appellant] at home, but I am not making an order for out of home placement at this time. I am going to do a trial at the girls shelter, which . . . is local. . . ." The court's hope was that the 90-day trial at the girls' shelter would be long enough to allow appellant's mother to "jump in and engage with probation and with this court to do whatever it takes . . . to be there for" appellant and to allow appellant to stabilize.
The court continued disposition for 90 days, released appellant to the girls' shelter, and ordered her to continue to engage in therapy and cooperate with probation and the girls' shelter. Finally, the court stated that its goal at the end of the temporary period at the girls' shelter was for structured services to be in place so that appellant could return to her mother's care. The court did admonish appellant that "if you run away from the girls shelter or you aren't actively participating, or if you get terminated from the girls shelter because of behavior, another option continues to be an out of home placement that's more permanent. That's not what I'm looking for. I really want you to return home."
In the probation department's October 25, 2016 progress report, the probation officer reported that the girls' shelter staff had been shadowing appellant at school due to reports of her leaving school without permission, her behavior issues in the classroom, and an incident in which appellant was assaulted after leaving school. Appellant also continued to test positive for marijuana. In a November 8 progress report, the probation officer reported that appellant's "progress has not changed."
On December 8, 2016, the girls' shelter terminated appellant's placement there due to numerous issues, including the facts that she was "missing daily at her school"; she was suspended from school for being verbally aggressive with a teacher; she got into a physical altercation with another girl; a pill, a cigar, and a lighter were found during searches of her room; she returned from a home visit apparently under the influence; and, after being truant from school, she was found with items suspected to be shoplifted from Target. She was, according to her probation officer, also "suspected of constantly being under the influence of marijuana." Appellant was again booked into juvenile hall for violating the detention orders and was ordered detained on December 13, pending disposition.
On December 27, 2016, at conclusion of the second contested dispositional hearing, the court (Hon. Braden Woods) found that appellant had been "given the opportunity to be on home detention orders and conditions in the home of her adopt[ive] mother . . . , and she failed to reform and failed to rehabilitate." She also was given the opportunity to be placed at the girls' shelter, to remain close to home, and to show the court "that she could in fact follow through at home and improve. [¶] While we don't necessarily expect perfection from young people, reading all the reports from the shelter program, the one thing she followed through with, and I do commend her for, was the therapy aspect of it. [¶] However, even with the help of the shelter program, she still failed to go to school. She was still smoking lots of marijuana. Her attitude and respect to adults was poor.
"And this has been going on, frankly, since she came to us all the way back in June of 2016. And the court, reading the file from the front to the back, has not seen any real consistent improvement by [appellant], including the time she was still in the care and custody of [her mother]." The court concluded, inter alia, that appellant "has been on home detention orders and conditions and has failed to reform." The court therefore placed appellant in the care, custody, and control of the juvenile probation department. The court also set appellant's maximum term of confinement at four years and ten months.
"We review the court's placement decision for an abuse of discretion. [Citation.] We review the court's findings for substantial evidence, and ' "[a] trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence." ' [Citation.]" (In re Nicole H. (2016) 244 Cal.App.4th 1150, 1154 (Nicole H.).)
Welfare and Institutions Code section 202, subdivision (a) provides for removal of a "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."
Accordingly, "no [minor] shall be taken from the physical custody of a parent or guardian, unless upon the hearing the court finds one of the following facts:
"(1) That the parent or guardian is incapable of providing or has failed or neglected to provide proper maintenance, training, and education for the minor.
"(2) That the minor has been tried on probation while in custody and has failed to reform.
"(3) That the welfare of the minor requires that custody be taken from the minor's parent or guardian." (Welf. & Inst. Code, § 726, subd. (a).)
In their briefing, the parties set forth a great deal of evidence related to whether appellant's mother was able to care for appellant in the home, whether appellant had failed to reform while on probation, and whether appellant's welfare required out of home placement. (See Welf. & Inst. Code, § 726, subd. (a).) The court found that removal was necessary on all of these grounds.
As we shall explain, substantial evidence supports the court's finding that appellant "ha[d] been tried on probation while in custody and has failed to reform" (Welf. & Inst. Code, § 726, subd. (a)(2)), which, on its own, fully warranted the order for out of home placement. (See ibid.) [no minor "shall be taken from the physical custody of a parent or guardian, unless upon the hearing the court finds one of the following facts," including, inter alia, the minor's failure to reform on probation], italics added.) We therefore need not definitively decide whether substantial evidence also supports the court's additional findings that out of home placement was necessary because appellant's mother was "incapable of providing or ha[d] failed or neglected to provide proper maintenance, training, and education for [appellant]" (id., subd. (a)(1)) and/or because appellant's "welfare . . . require[d] that custody be taken from" her mother. (Id., subd. (a)(3).)
Appellant's arguments primarily address whether her mother supported or undermined her efforts to deal with the underlying issues that contributed to appellant's misbehavior and whether it was in appellant's best interest to remain at home or to be committed to a more structured environment. (See Welf. & Inst. Code, § 726, subd. (a)(1) & (a)(3).) Most of these arguments ask us to reweigh the evidence and determine credibility, which—as previously noted—we may not do. (See People v. Friend, supra, 47 Cal.4th at p. 41.) Moreover, none of these arguments call into question the fundamental fact that appellant failed to reform while on probation, both while at home in her mother's custody or during the trial period at the girls' shelter. (See Welf. & Inst. Code, § 726, subd. (a)(2).
For example, the evidence showed that even before the first dispositional hearing, appellant was out of compliance with her home detention because she had failed to charge her GPS monitor, she was late to school on a daily basis and missed classes, she refused to drug test, and she got into a physical altercation with another minor. After she was taken into custody at juvenile hall for violating home detention, she made threats to staff and tested positive for marijuana use. Then, following the first dispositional hearing, appellant was given a 90-day trial placement at the girls' shelter, but was terminated from that program and again booked into juvenile hall for misconduct, including repeatedly leaving school grounds during the school day, getting into a verbal altercation with a teacher, being regularly under the influence of marijuana, having prohibited items in her room, and suspected shoplifting.
This evidence of appellant's continuing misconduct and unwillingness to abide by the court's orders or the conditions of her probation fully supports the court's finding that she had failed to reform on probation, and that out of home placement was therefore necessary. (See Nicole H., supra, 244 Cal.App.4th at p. 1154; Welf. & Inst. Code, § 726, subd. (a)(2).) We cannot say that the court's commitment order was an abuse of discretion. (See Nicole H., at p. 1154; see also In re Khamphouy S. (1993) 12 Cal.App.4th 1130, 1135 [it is duty of juvenile court, not appellate court, to determine most appropriate placement for a minor, and we reverse court's determination "only if it has acted beyond the scope of reason"].)
In Nicole H., supra, 244 Cal.App.4th at page 1155, cited by respondent, the minor—who was also found to have committed an assault likely to produce great bodily injury—contended the evidence did not support the juvenile court's finding that her welfare required custody to be taken from her father, pursuant to Welfare and Institutions Code section 726, subdivision (a)(3). Division Five of this District disagreed, finding that "[t]he juvenile court could reasonably infer from the nature of the attack and appellant's lack of remorse that she was a danger to the community and required treatment in a structured setting." (Nicole H., at p. 1155.) Here, while the assault was not as brutal as the one committed by the minor in Nicole H., the facts surrounding that offense, together with appellant's failure to even admit the assault, much less show remorse for the harm she caused, provides additional support for the out of home placement order. --------
DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.