Filed 9/29/16 In re N.M. CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


In re N.M., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
         Plaintiff and Respondent,
v.
N.M.,                                                                A148099
         Defendant and Appellant.                                    (Contra Costa County
                                                                     Super. Ct. No. J16-00198)


         N.M., a 17-year-old minor at the time of his offense, pled no contest to violent
felony, first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a), 667.5,
subd. (c)(21)), and now appeals his one-year commitment to the Orin Allen Youth
Rehabilitation Facility. N.M. urges instead that he be placed at home on supervised
probation, subject to a stayed commitment to the youth facility. The juvenile court’s
disposition was not an abuse of discretion, and we affirm.
                                                 BACKGROUND
         N.M. was born in Pakistan, to parents who eventually came to live in Afghanistan
where his father still remains.1 N.M. and his mother emigrated to the United States in
2011 when N.M. was thirteen, and are presently here legally, seeking asylum. When they



         1
             We state the facts in the light most favorable to the judgment.

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arrived, N.M. spoke no English, didn’t fit in with other kids and faced ridicule. At first
they lived with relatives in Southern California, and later moved to Northern California.
       At the time of N.M.’s offense, he and his mother were living with his older sister
and her five-year-old son, in his sister’s federally subsidized, low-income housing in San
Ramon. His sister, a full-time college student on financial aid, supported all four of them
solely out of her $500/month earnings as a part-time librarian. N.M. and his mother are
ineligible for public benefits.
       On November 23, 2015, at about 10:00 a.m., N.M. was arrested with two other
youths driving a stolen car. He admitted to police that he and his friends had stolen it; he
also admitted they vandalized it with spray paint. All three were issued juvenile citations
and released to their parents.
       The burglary took place the following month, at approximately 11:00 a.m. on the
morning of December 24, 2015. N.M. had been knocking on the doors of at least two
homes in a San Ramon condominium complex that morning, suspiciously asking for cash
donations to the high school football team but without any paperwork or credentials. The
owner of a third condominium left his house for about 30 or 40 minutes to go look for his
cat and left the door to his home ajar. When the homeowner returned around 11:15 a.m.,
he found a blanket full of wrapped Christmas presents on the ground outside his home
and his tan slippers, all taken from his house. N.M. had dumped his own white sneakers
on the ground too, making off with the homeowner’s black Nike high-top sneakers.
There had been no forced entry and the house had not been ransacked. The homeowner’s
college-age son, and his daughter and her friend had been asleep upstairs.
       According to the homeowner, $950 in cash had been stolen: $800 in family
savings intended for assistance to relatives abroad and $150 from his son’s wallet, which
were summer job earnings his son had been planning to spend on Christmas shopping
that day. Also stolen was a key to the daughter’s modest, eight-year-old car, a pair of
black pants and a $100 Nordstrom gift certificate both of which had been under the
Christmas tree. N.M. also stole the son’s driver’s license. Most of the stolen items were
eventually recovered.


                                             2
       N.M. was immediately traced to the burglary by a neighbor. Police went to his
home but he was out, and he refused to return home to meet with police when they
reached him by phone. Police spoke with his sister, who was there when they arrived.
She explained the family’s living arrangements, and told police she was afraid of getting
evicted because her brother was in constant trouble that she couldn’t handle and so she
wanted her mother and brother to go live with relatives in Los Angeles. She permitted
police to search his room, where they recovered the stolen driver’s license. She also gave
them a key that appeared to belong to a Maserati which police later learned did not
belong to the family that had been burglarized.
       When N.M. returned home later that day, his sister confronted him, he repeatedly
told her he was sorry, she told him to immediately pack his belongings and she then
drove him to Southern California to be taken to an uncle’s house. She later told police
she did this even though she knew police were looking for her brother because she
assumed he would be released back to her custody, as he had been for the vehicle theft
arrest. She didn’t want to get evicted from her apartment complex, which was part of a
crime-free housing program.
       N.M. was under the influence of marijuana when he committed the burglary, and
later expressed regret. The incident was extremely frightening and upsetting to the
homeowner and his family.
       On February 19, 2016, the Contra Costa County District Attorney filed a juvenile
wardship petition (see Welf. & Inst. Code, § 602, subd. (a)),2 charging N.M. with one
count of vehicle theft (Veh. Code, § 10851, subd. (a)), and one count of first degree
burglary (Pen. Code, §§ 459, 460, subd. (a)), charged as a violent felony on the ground a
person was present in the residence during its commission (Pen. Code, § 667.5,
subd. (c)(21)). At the arraignment several weeks later on March 2, 2016, the juvenile
court ordered N.M. taken into custody on the ground he was dangerous.


       2
          Unless otherwise noted, all further statutory references are to the Welfare and
Institutions Code.

                                             3
       At his next court appearance, N.M. pled no contest to the first degree, violent
felony residential burglary count which he was advised carried a maximum six-year term,
and the car theft count was dismissed.
       The probation department concluded N.M. was at low risk of reoffending but
recommended he be committed to the youth facility for nine months in order to hold him
accountable for his actions, even though it also noted, “[t]he family dynamics do not
indicate that Out-of-Home Placement is justified at this time.” The probation department
concluded “it appears [N.M.’s] unlawful behavior is likely to continue without significant
intervention in a structured environment which includes substance abuse treatment, and
cognition behavioral programming. Additionally, the public must be protected. It is not
clear how much supervision [N.M.] has at this point, given his mother is temporarily
living in Alameda County for employment.”3
       According to the probation report, N.M.’s transition from Afghanistan to the
United States had not been easy. But he had a good relationship with his parents, though
his father remains in Afghanistan, and “an off and on” relationship with his older sister;
he aspired to graduate high school and college and pursue a medical or legal career; and
he had admitted his wrongdoing and wanted to help make amends to his victim. N.M.
attributed his actions to having smoked marijuana and not having a job. N.M.’s older
sister attributed the incident to the family’s meager means—she blamed herself for not
giving him pocket money, and thought their “lack of provisions” might have contributed
too. While in detention at juvenile hall, N.M. behaved satisfactorily and mostly kept to
himself. The probation department noted, too, that he had been bullied by two other
youths there, who were calling him “Osama bin Laden’s cousin.”
       Yet the probation report also noted areas of concern. It detailed a history of poor
high school attendance and poor grades (with some exceptions) and disciplinary


       3
         N.M.’s sister reported that as of March 1, 2016, their mother had been working
temporarily as a live-in homecare assistant for an elderly woman in Fremont, California.
By the time of the disposition hearing, their mother reportedly was willing to quit her job
if necessary to supervise N.M. full time if he were placed on home probation.

                                             4
problems too, including a fight that resulted in a five-day suspension and an incident
involving marijuana possession at school that resulted in a three-day suspension. In
addition, N.M. got kicked off the football team for fighting with another team member,
and got dropped from the wrestling team for poor grades. N.M. also had been using
marijuana since freshman year in high school, eventually on a daily basis until he claimed
to have stopped altogether after the burglary. The probation department also wrote that
N.M. excused his actions far too easily, blaming the incident on his drug use and lack of a
job, and was critical of N.M. for potentially jeopardizing his sister’s housing situation.
       N.M. wrote a two-page letter to the court expressing regret for the incident, and
asking for “a second chance, because I know that I’ve done something that’s very illegal
and unlawful.”
       A contested disposition hearing took place on March 23, 2016, at which the
homeowner testified, and at its conclusion the juvenile court adjudged N.M. a ward of the
court and ordered him removed from his family’s custody. The juvenile court rejected
defense counsel’s request for supervised probation, subject to a suspended ranch
commitment “hanging over his head.” The juvenile court found under section 726,
subdivision (a)(3) that N.M.’s welfare required his removal, and committed him to the
Orin Allen Youth Rehabilitation Facility for a one-year, mandatory sentence, followed by
a 90-day conditional release period.
       This timely appeal followed.
                                       DISCUSSION
       Under section 202, the juvenile court enjoys “broad discretion to choose probation
and/or various forms of custodial confinement in order to hold juveniles accountable for
their behavior, and to protect the public.” (In re Eddie M. (2003) 31 Cal.4th 480, 507.)
“Nor does the court necessarily abuse its discretion by ordering the most restrictive
placement before other options have been tried.” (Ibid.) In particular, a juvenile court’s
decision to remove a minor from parental custody under section 726 is reviewed for
abuse of discretion. (In re Nicole H. (2016) 244 Cal.App.4th 1150, 1154.)



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       We cannot substitute our judgment for that of the juvenile court, much as
reasonable minds might differ as to the appropriate disposition to be made in this case.
To us, this record is fairly susceptible to the interpretation that an immigrant youth facing
difficult cultural challenges made a terrible mistake that, while it ruined one family’s
Christmas holiday, involved no actual violence or weapons or injury; he sincerely regrets
his actions and has the support of his immediate family to try to take the steps necessary
to right his life. That said, we are not at liberty to decide this question anew. Given the
gravity of the felony N.M. admitted (brazenly burglarizing a home while people were
present), his admission to police that he previously stole and vandalized a vehicle,4 his
unexplained possession of another car key not belonging to his burglary victims,
combined with other circumstances such as his marijuana use, poor grades and
disciplinary problems at school, we cannot say the out-of-home placement is an abuse of
discretion. (See, e.g., In re Khamphouy S. (1993) 12 Cal.App.4th 1130, 1135 [affirming
order committing 17-year-old to juvenile ranch facility for possession of live ammunition
and violation of probation]; In re Robert H. (2002) 96 Cal.App.4th 1317, 1329–1330
[affirming order committing minor to out-of-home camp facility rather than supervised
probation at home, due to gravity of minor’s weapons offense]; In re Nicole H., supra,
244 Cal.App.4th at p. 1155 [no abuse of discretion in removing first-time juvenile
offender from parental custody despite low risk of re-offending; juvenile committed
violent physical assault, showed lack of remorse and required treatment in a structured
setting].)
       N.M. also argues the out-of-home commitment unconstitutionally infringes on his
substantive due process right to remain living with his family, because it is not supported
by a “compelling necessity.” We decline to address that issue because it was not raised
below and has been forfeited. Because N.M. didn’t ask the juvenile court to apply a


       4
         N.M. contends the juvenile court could not consider the facts of the auto theft
because the count was dismissed without a so-called Harvey waiver. However, People v.
Harvey (1979) 25 Cal.3d 754 does not apply to juvenile proceedings. (In re Jimmy P.
(1996) 50 Cal.App.4th 1679, 1683.)

                                              6
compelling necessity standard, the court had no occasion to address it. (See In re M.H.
(2016) 1 Cal.App.5th 699, 713–714.)
       In addition, were the issue not forfeited we would reject it. N.M. cites no
authority requiring a showing of compelling necessity before a juvenile who has been
adjudged a ward of the court for committing a violent felony can be removed from his
parent’s custody and committed to a youth facility for rehabilitation. We think it implicit
in the juvenile delinquency statutes, which authorize an out-of-home custodial
commitment in the juvenile court’s discretion (§ 202, subd. (e)(4)), that commission of a
felony offense is a compelling necessity. Our decision in In re James R. (2007)
153 Cal.App.4th 413 (James R.), cited by N.M., did not address this question. On the
contrary, it recognized the fundamental, constitutional right of a juvenile adjudged a ward
of the court and removed from parental custody to parental visitation. (Id. at p. 417.)5
Far from supporting the adoption of a restrictive standard for out-of-home placements,
we called it “ ‘clear’ ” in James R. that “ ‘juvenile delinquency laws are designed to
provide the juvenile court maximum flexibility to craft suitable orders aimed at
rehabilitating the particular ward before it.’ ” (Id. at p. 432, italics added.)
       Finally, we reject N.M.’s contention the disposition entered in this case was the
product of discriminatory religious and/or national origin-based animus. At all times, the
juvenile court conducted itself respectfully toward all concerned, including temporarily
adjourning the disposition hearing to secure a Farsi interpreter for N.M.’s mother. We
agree with N.M. that the juvenile court acted improperly in placing him into custody at
the arraignment hearing without any prior notice or evidence of changed circumstances
(see In re Ryan B. (1989) 216 Cal.App.3d 1519; In re Daniel M. (1996) 47 Cal.App.4th
1151, 1155), but we cannot infer discriminatory animus from the mere commission of
judicial error. We also note an odd cultural reference contained in the probation report,

       5
          And even so, “[t]hough a minor has a constitutionally based right to visitation
with family members while placed outside the home (James R., supra, 153 Cal.App.4th
at p. 417), this does not translate into a corresponding constitutional right to have the
travel to and from those visits funded by the state.” (In re L.M. (2009) 177 Cal.App.4th
645, 651.)

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stressed by N.M., which observed N.M. “did not need to steal for survival and he knows
the punishment for theft in his country, Afghanistan, is losing a hand.” We infer no
animus from this statement either, however; N.M.’s sister volunteered that information to
the probation officer. In any event, we presume the juvenile court ignored this irrelevant
observation.
                                     DISPOSITION
       The dispositional order is affirmed.




                                              8
                           STEWART, J.



We concur.




KLINE, P.J.




MILLER, J.




In re N.M. (A148099)



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