Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. J190653
Richman, J.
Defendant A.B. appeals from an order of the juvenile court committing him to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ). Defendant contends the juvenile court abused its discretion in committing him to the DJJ because there was no substantial evidence demonstrating (1) that he would benefit from the commitment or (2) that less restrictive alternatives would be ineffective or inappropriate. Defendant’s arguments are without merit, and we affirm.
Prior to July 1, 2005, the DJJ was known as the California Youth Authority (CYA). (Welf. & Inst. Code, § 1703, subd. (c); Gov. Code, §§ 12838, 12838.5.) The record contains references to both the DJJ and the CYA. We shall refer to the DJJ throughout for purposes of consistency.
I. Background
On the afternoon of July 7, 2004, then 14-year-old defendant and three companions, including a friend named Martin F., were in the city of Alameda when they spotted an unattended bicycle and two scooters outside a McDonald’s restaurant, and decided to steal them. They noticed some “kids” inside the restaurant who they believed to be the likely owners, and waited outside; one of the boys inside, the 12-year-old owner of the equipment, saw them looking at the bicycle and scooters and came outside to guard the equipment. Martin F. asked if he could ride the bicycle. When the boy refused, Martin F. took one of his scooters, another grabbed money out of the boy’s shoe, and defendant grabbed food from his hand and took the other scooter. The victim, subsequently described by defendant as “scared, petrified” and “crying,” later identified a photograph of defendant as one of the perpetrators. The loss was identified as $8.00 in cash, some fast food, and two scooters valued at $198.
A few hours later that same afternoon, defendant and his companions were waiting at a bus stop, drinking alcohol and smoking marijuana, when they spotted two boys approaching on bicycles. One member of defendant’s group blocked one of the bicyclists by straddling the front tire of his bicycle. He asked the boy if he had change for a dollar, and the boy responded that he only had five-dollar bills. One of defendant’s companions then demanded his wallet, and the boy, afraid he was going to get beaten up, complied. When the boy brought out the wallet, defendant grabbed his arm and yelled for someone to grab the wallet. The boy was thrown to the ground, and one of defendant’s friends grabbed the wallet. Another one of defendant’s companions punched the second boy in the jaw and took money out of his wallet. One victim valued his loss at $72.50, while the other valued his at $20.
Defendant and his group then fled, eventually boarding an AC Transit bus. There were witnesses to the second robbery who saw them board the bus, however, and the bus was soon stopped by the police, who arrested defendant and his companions.
In a police interview, defendant admitted his participation in both of the robberies. He said he did not feel bad because he had “gotten over on” the victims, and he admitted that had he not been caught, he would likely have “done it again” because he liked the thrill of doing something bad and getting away with it. He did, however, express some remorse for the victims, explaining that he would not want something like that to happen to him or his family.
On July 14, 2004, the Alameda County District Attorney filed a petition pursuant to section 602, alleging that on July 7, 2004, in the city of Alameda, defendant committed three counts of felony robbery in violation of Penal Code section 211. The following day, Commissioner Mark Kliszewski ordered defendant detained. At the time of his detention, defendant was already a dependent within the meaning of section 300.
Section 602 provides that with certain exceptions inapplicable here, “[A]ny person who is under the age of 18 years when he or she violates any law of this state or of the United States or any ordinance of any city or county of this state defining crime other than an ordinance establishing a curfew based solely on age, is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court.” (§ 602, subd. (a).)
The parties stipulated to Commissioner Kliszewski serving as a judge pro tem until final determination of the case.
At a pre-trial hearing on August 3, 2004, Commissioner Kliszewski found the third robbery count—that involving the victim in front of McDonald’s—to be true as admitted by defendant, dismissed the two remaining counts on the district attorney’s motion, and set the matter for disposition.
The probation department’s dispositional report, filed August 16, 2004, provided the first insight into defendant’s family background: “The minor is the older of two children born to the non marital union of Arnaud [D.] and Deanna [B.], high school sweethearts together only a few years before breaking up when the mother began going in and out of jail. The father, minor, and the minor’s younger sister, [D.B.] (13) have always resided with the paternal grandmother, who reported that she has more or less raised the minor since he was approximately one year old due to the mother’s frequent incarceration for drug related offenses. The mother, who maintains regular telephone contact with her children but has infrequent physical contact, recently married at the beginning of the year and resides in Santa Rosa, California. The father, an auto mechanic by trade, is unemployed as he is disabled and pending SSI benefits. The grandmother supports the family on her small retirement pension, SSI, and AFDC (Aid to Families with Dependent Children) for the minor and his sister.”
The probation officer spoke to Jessie H., defendant’s paternal grandmother, who explained that while defendant presented no problems at home, there was significant conflict between defendant and his father, who “frequently yells at [defendant] and calls him ‘stupid’ for doing poorly or not going to school and getting into trouble.” According to Ms. H., defendant would become upset and respond by leaving the home for several days without permission. She also opined that defendant has anger issues directed at his mother as a result of too many “broken promises.”
The report also detailed defendant’s academic troubles, indicating that they stem in large part from excessive truancy, which defendant admitted. Further, defendant was suspended in February 2004 for taking money from another student and was supposed to be placed on Independent Study, although that never materialized and defendant had not attended school since his suspension. Defendant had also been suspended earlier in the year for disruptive classroom behavior.
When interviewed by the probation officer, defendant claimed to have started smoking marijuana when he was 11 years old and was, at the time of the interview, smoking it twice a week with his friends. He also drank alcohol approximately once a month. Defendant expressed a willingness to participate in substance abuse counseling.
According to the probation officer, defendant took responsibility for his crimes and did not minimize the seriousness of his conduct. As described in the report, however, defendant “demonstrate[d] a degree of criminal sophistication in the role he played in the offense, as he ‘sized up’ the victims in McDonalds and, in both offenses, [defendant] and co-participants chose victims who were younger and outnumbered by them.” While recognizing the seriousness of the offense and concerns about substance abuse and truancy, the report nevertheless recommended that defendant be granted formal probation instead of out-of-home placement.
On August 17, 2004, the juvenile court agreed with the probation department’s recommendation, declaring defendant a ward of the court and placing him on five years’ formal probation in the home of his father. He was also ordered to attend school, comply with a curfew, pay restitution to the victims, and avoid communicating with his co-participants.
For reasons not evident from the record, the disposition order was made by Commissioner Hilde Olds instead of Commissioner Kliszewski.
Less than two months later, however, defendant’s probation officer filed a section 777 petition alleging that defendant failed to comply with the terms of his probation by repeatedly violating his curfew and exhibiting poor behavior at school. The probation department’s intake/jurisdictional report detailed significant problems with defendant’s conduct: “[T]he minor was suspended from school on 10/7/04 for one day for throwing food in the[] cafeteria. On 10/12/04, the minor was suspended for three days for sexual harassment. Staff at [defendant’s school] stated the minor fails to follow staff’s directives, constantly disrupts the class, is disrespectful and has made inappropriate sexual gestures. This deputy had admonished the minor on several occasions regarding his behavior at school, but he continues to misbehave. Further, on 10/8/04 the minor left home without prior permission from his father or the undersigned and took a bus to Santa Rosa to visit his mother. The minor did not return home until 10/11/04. Further, the minor refused to tell this deputy how he obtained the money to purchase a bus ticket to Santa Rosa, CA.” “Having just been placed on Formal Supervision less than two months ago,” the report concluded, “it appears that Probation has not made an impact on his behavior. The court should note, that the minor’s first finding was for a robbery which was very violent in nature. It appears that the minor is beyond his parent’s control and has failed Formal Supervision.” This report was followed by a supplemental memorandum dated October 22, 2004, informing the court that defendant had again been suspended that day for threatening another student.
Section 777 provides in pertinent part: “An order changing or modifying a previous order by removing a minor from the physical custody of a parent, guardian, relative, or friend and directing placement in a foster home, or commitment to a private institution or commitment to a county institution, or an order changing or modifying a previous order by directing commitment to the [DJJ] shall be made only after a noticed hearing. [¶] (a) The notice shall be made as follows: [¶] (1) By the probation officer where a minor has been declared a ward of the court or a probationer under Section 601 in the original matter and shall contain a concise statement of facts sufficient to support the conclusion that the minor has violated an order of the court. [¶] (2) By the probation officer or the prosecuting attorney if the minor is a court ward or probationer under Section 602 in the original matter and the notice alleges a violation of a condition of probation not amounting to a crime. The notice shall contain a concise statement of facts sufficient to support this conclusion. [¶] (3) Where the probation officer is the petitioner pursuant to paragraph (2), prior to the attachment of jeopardy at the time of the jurisdictional hearing the prosecuting attorney may make a motion to dismiss the notice and may request that the matter be referred to the probation officer for whatever action the prosecuting or probation officer may deem appropriate.”
On October 28, 2004, Commissioner Kliszewski sustained the section 777 petition based on defendant’s admissions. The commissioner then ordered the matter transferred to Sonoma County in light of defendant’s desire to reside with his mother and stepfather. Sonoma County declared defendant a ward of the court on December 10, 2004.
In addition to defendant’s criminal history, family background, and poor conduct while on probation, a Sonoma County intake report also touched on defendant’s mental health, relating that defendant “attempted suicide on one occasion at 12 years of age when he tried to drink bleach.” The report continued, “He acknowledged he ‘sometimes’ still thinks about committing suicide; however, he stated, ‘There’s no easy way out, so I don’t want to do something.’ He acknowledged he often has feelings of depression and would benefit from having a counselor to talk to.”
Despite the transfer to Sonoma County and the opportunity for a new beginning, defendant’s troubles continued. On November 8, 2004, defendant enrolled at another high school in Santa Rosa but, on the second day of school, he was caught bringing marijuana onto the school campus. He was suspended for a week and referred for expulsion proceedings. Two months later, while the expulsion proceeding was still pending, defendant was again suspended, this time for sexually harassing two female students.
On January 12, 2005, defendant was expelled from Santa Rosa city schools, but the expulsion was suspended pending his compliance with a rehabilitation plan. He then began attending yet another school on January 24, 2006, but a mere 10 days later, he showed up at school under the influence of drugs and in possession of 4.7 grams of marijuana. He was once again suspended, and ultimately expelled.
On February 22, 2005, another section 777 petition was filed in Sonoma County, alleging that defendant failed to attend school as required, used an unknown drug, and was in possession of 4.7 grams of marijuana while at school.
On March 1, 2005, the Sonoma County Juvenile Court sustained the petition based on defendant’s admissions, and on March 15, 2005, committed defendant to out-of-home placement at Sierra Youth Center. Unfortunately, and once again failing to take advantage of the opportunity to correct the course his life was taking, defendant absconded from the ranch program on May 21, 2005.
Defendant’s whereabouts remained unknown to the juvenile system until November 27, 2005, when he was arrested in Oakland on a first degree burglary charge. As described in the police report, defendant and two co-participants were “casing” a residential block in Oakland when they observed a family leave their home. While one boy remained in front as a lookout, defendant and another boy walked to the rear of the house where defendant used a screwdriver to pry open the door. They ransacked the house and left with a suitcase full of stolen items. Several neighbors witnessed the burglary and called the police, leading to defendant’s arrest shortly thereafter.
On November 29, 2005, the Alameda County District Attorney filed a subsequent section 602 petition, alleging that on November 27, 2005, in Oakland, defendant committed first degree burglary in violation of section 459 of the Penal Code. On December 15, 2005, the petition was amended to allege a reduced charge of felony possession of stolen property in violation of Penal Code section 496, and defendant admitted the charge.
When interviewed by his probation officer and as reported in the December 28, 2005 dispositional report, defendant acknowledged his involvement in the burglary and expressed remorse. Defendant also attempted to justify his escape from the Sierra Youth Center by claiming that, although he had been doing well at the ranch program, he ran away after a supervisor told him he was going to be terminated from the program because no one in his family had participated and he was no longer suitable for the family bonding program because his mother had been incarcerated.
The report also explained that defendant had not done well on probation with his mother: “[T]here were issues of domestic violence for which the stepfather was prosecuted. After the minor’s probation was violated and he was sent to a ranch program by Sonoma County Probation, the mother, who was by then separated from her husband, was incarcerated again and lost her housing. Released from custody sometime in late May or early June 2005, the mother has reportedly continued to reside in Santa Rosa in a homeless shelter.”
Defendant’s stepfather was arrested for domestic violence against defendant’s mother on December 25, 2004 and again on January 31, 2005, and defendant witnessed at least one of the incidents.
In addition to defendant’s failure on probation while residing with his mother, the report also described problems he was having with his father and grandmother, with whom he lived for part of the time after he fled from Sierra Youth Center. While under their roof, he refused to submit to their authority, “com[ing] and go[ing] as he please[d], often for days or weeks at a time.” “The father and grandmother knowingly harbored the minor, a fugitive on the run from Sonoma County,” the report explained, “and demonstrated their inability to control the minor or provide proper structure and guidance, further demonstrating a lack of interest by failing to enroll the minor in school. While on the run, [defendant] spent his free time with various friends described as much like himself, streetwise, criminally oriented youth who are truant from school. Although he claims a strong desire to change his life, find a job, quit drugs, and return to school, it appears to be lip service and [defendant] is at grave risk of continuing in the same vein unless removed from his urban setting. Beyond parental control and easily influenced by his environment and peers to engage in negative behavior, [defendant] would benefit from a remote highly structured placement . . . .” Ultimately, the report recommended that jurisdiction be transferred back to Sonoma County in light of the pending warrant or, alternatively, that defendant be committed to a county camp.
On January 10, 2006, the court agreed and transferred jurisdiction back to Sonoma County. However, because defendant’s mother, then residing in a homeless shelter, was unable to provide appropriate housing for defendant, the matter was transferred back to Alameda County.
On January 24, 2006, Commissioner Kliszewski committed defendant to Camp Sweeney. Barely one month later, however, defendant ran away from Camp Sweeney, resulting in yet another section 602 petition.
On May 1, 2006, defendant was arrested in San Leandro while committing a residential burglary. According to the police report, two suspects approached a house in San Leandro and rang the doorbell, asking the resident if “John” lived around there. The resident, who became suspicious, said he thought “John” lived across the street. Another neighbor saw the two suspects—later identified as defendant and Martin F.—approach a different house, ring the doorbell, and then walk to the side of the house. After watching defendant proceed around to the back of the house, the neighbor called the police. The police arrived and, following a foot chase, arrested defendant and Martin F. Upon his arrest, defendant dropped a large screwdriver that he had been carrying in his hand; a small screwdriver was found in his pants pocket.
An investigation of the house revealed a back door that was wide open and a “messy” search of the house. Jewelry with an estimated value of $10,000 and other items had been placed in a gym bag on the bed in the master bedroom.
On May 2, 2006, the district attorney filed an amendment to the section 602 petition alleging three additional counts: felony burglary in violation of Penal Code section 459 (count 2), misdemeanor possession of burglary tools in violation of Penal Code section 466 (count 3), and misdemeanor providing a false identification to a police officer in violation of Penal Code section 148.9 (count 4).
On May 15, 2006, the district attorney filed a second amendment to the petition, alleging eight additional felony burglary counts (counts five through twelve), which defendant purportedly committed in Oakland and San Leandro in March and April. In each incident, the residence was ransacked and various items taken, including a vehicle on one occasion.
On July 26, 2006, at a pre-trial hearing before the Honorable Carl Morris on the section 602 petition, defendant admitted as true counts 1 (felony possession of stolen property), 2 (felony burglary), and 9 (reduced to possession of stolen property). While counts 3 through 6 were dismissed outright, counts 7, 8, and 10 through 12 were dismissed with facts and restitution open.
The dispositional report and court minutes erroneously indicate that counts 3 through 8 and 10 through 12 were all dismissed with facts and restitution open. Defendant points to this error to suggest that Commissioner Kliszewski, when committing defendant to the DJJ, misunderstood the number of residential burglaries defendant had been charged with, not realizing that there were a number of burglaries initially charged to defendant that he was actually not “good for.” Defendant corrected the record at both the dispositional hearing and in the motion for reconsideration, however, such that Commissioner Kliszewski was duly apprised of the correct number of burglary charges against defendant.
An August 4, 2006 dispositional report once again detailed defendant’s considerable—and growing—criminal history. It also provided insight into defendant’s escape from his second camp placement and his whereabouts between his March 1, 2006 escape and his May 1, 2006 arrest. According to defendant, he escaped from Camp Sweeney after he returned from the funeral of a friend who had been killed in Oakland. He “was very depressed over the death of a friend,” he claimed, and “was vulnerable to the idea of running from camp by . . . fellow wards.” Following his escape from Camp Sweeney, defendant roamed around: “[H]e first stayed with his cousin and they traveled to San Francisco where he met up with his mother when she was released from custody. As she had already separated from her husband due to domestic violence issues, and had subsequently lost her housing, she was headed to a shelter in Santa Rosa and [defendant] said he did not want to go. He stayed with various friends over the next month and returned to his grandmother’s home, where his father and sister also reside, sometime in July 2005. [¶] Provided food and shelter in their home, and occasionally receiving spending money from the grandmother, [defendant] nevertheless reported that he had also tried selling both marijuana and crack cocaine once to support himself but ‘fell out’, that is, he spent all his profit and had no more money to buy product. He also admitted that the instant offense is the second burglary he has committed, and he had committed another house burglary over the past summer with a different group of friends, but either refused or was unable to provide enough information for the matter to be investigated by the police. [Defendant] acknowledged that he did not make good choices with peer associates and described his friends as juveniles much like himself, streetwise, into trouble, and truant from school. He admitted using marijuana on a daily basis, sharing approximately four ‘blunts’ per day with friends as well as occasionally drinking alcohol.” According to the report, defendant estimated that he had committed a minimum of 15 burglaries, all done in an attempt to acquire money so he could purchase a car. “The minor,” explained the probation officer, “showed no regard for the victims and his primary regret was getting caught.”
Defendant ran away with Martin F., with whom he had been placed at Camp Sweeney, despite prior orders that defendant have no contact with his co-participants.
At the same time, the report indicated that defendant had been doing well since his May 1 arrest: “The minor is doing very well in Juvenile Hall. [He] has been used as a Unit Worker and has not received any disciplinary reports. The minor has often been described as being somewhat immature and silly at times, but always respectful towards staff.”
In terms of assessment, the probation officer summarized: “[Defendant] has a rather lengthy history with juvenile probation and this court. The minor has been tried on formal probation and failed almost immediately. The minor has been sent to another county where he also failed probation. The minor was placed at a Camp program in Sonoma County that the minor ran away from. The minor’s most recent disposition was for the minor to stay at Camp Sweeney here in Alameda County[;] however, once again, the minor ran from this commitment. Over the last two years, the minor has involved himself in robberies and burglaries. The minor has also involved himself with his current co-participant in previous arrests [Martin F.] and was ordered to stay away from this co-participant. Clearly, [defendant] has been given every opportunity to curb his delinquent behavior.” The probation officer concluded: “The minor and his grandmother are once again asking that the minor be sent to placement as opposed to a commitment to the [DJJ]. The undersigned will recommend that a placement order be made and that a remote wilderness program be sought for the minor as he has already proven that he cannot stay in a local placement.” The report noted that the placement unit supervisor deemed defendant “marginally appropriate for placement services.”
Elsewhere in the report the probation officer recommended that defendant “be removed from the home of his grandmother and placed in a suitable family home or group home under the standard out-of-home probation conditions.” It is not clear from the record to what this recommendation pertained, although defendant suggests that it “was likely an interim recommendation until the remote wilderness placement could be arranged.”
At a September 6, 2006 disposition hearing, defense counsel repeatedly urged Commissioner Kliszewski to afford defendant one more chance to right his behavior before committing him to the DJJ, arguing that since his May 1 arrest, he was finally turning his life around. In response, the court explained, “See, here’s the problem. I told him last time when he went to camp that he had to stay at camp. So he goes and escapes from camp within about a month and a half. Then he commits a residential burglary. Then he commits another residential burglary.” Commissioner Kliszewski further explained, “[H]e’s living the life of a criminal. He has decided he’s being a criminal and that he has chosen to make those decisions one right after another to be a criminal. [¶] As you know, I often say there’s two ways to get to [the DJJ]. One is to commit a horrible, horrible crime, which he has not done. He has committed some crimes, but they’re not the horrible ones. But the other is to keep committing crimes repeatedly and leaving and not taking opportunities when they’re given to him, and he is clearly part of that.”
Defense counsel argued that DJJ commitment should be reserved for minors who are incapable of turning their lives around, and that while in juvenile hall defendant was turning his life around. The court responded, “He’s only doing it because he’s in custody, and you know, that’s what [DJJ] is, in custody. He’s shown us that in custody he can do fine.”
In the end, Commissioner Kliszewski committed defendant to the DJJ with a maximum time of confinement of six years. He found that “the reformatory education discipline or other programs provided by the [DJJ] are appropriate. Specifically, the only time [defendant] succeeded has been when he’s been in custody, and that’s just recently and probably out of a fear of going to [the DJJ]. He needs to be placed somewhere where he’ll stay, where he will get education and get specific treatment for his anger management and also . . . the community will be protected from his activities; robberies, repeated burglaries, escapes and other issues that he’s had in his life. [¶] So he’s committed to the [DJJ].”
On September 14 and 27, 2006, the probation department filed placement reviews with student progress reports. The reports showed that while at juvenile hall, defendant was performing very well academically, earning A’s in most subjects and achieving “Student of the Week” on two occasions.
On September 20, 2006, defendant filed an application for rehearing before the Honorable Carl Morris, claiming entitlement to a new hearing on the grounds that “the [DJJ] commitment was without adequate notice and an opportunity to be heard. Probation only recommended a group home. He is not a violent person. His grandmother, who is [defendant’s] only reliable relative, is dying of cancer. She decided to stop treatment after the [DJJ] commitment. She is local [and] will not be able to see him at [the DJJ].”
On October 4, 2006, Judge Morris continued the matter to October 25, 2006, directing defendant to file a motion for reconsideration (Code of Civ. Proc., § 1008) to be heard by Commissioner Kliszewski. Defendant filed such motion on October 11, 2006, and on October 25, 2006, Commissioner Kliszewski denied it.
This timely appeal followed.
II. Applicable Law
A. Statutory Framework
“The purpose of the juvenile delinquency laws is twofold: (1) to serve the ‘best interests’ of the delinquent ward by providing care, treatment, and guidance to rehabilitate the ward and ‘enable him or her to be a law-abiding and productive member of his or her family and the community,’ and (2) to ‘provide for the protection and safety of the public . . . .’ ” (In re Charles G. (2004) 115 Cal.App.4th 608, 614-615, quoting § 202, subds. (a), (b) & (d).) Section 202 was amended in 1984 to shift “its emphasis from a primarily less restrictive alternative approach oriented towards the benefit of the minor to the express ‘protection and safety of the public.’ ” (In re Michael D. (1987) 188 Cal.App.3d 1392, 1396 (Michael D.); see also In re Javier R. (1984) 159 Cal.App.3d 913, 958.) While greater emphasis has been placed on “punishment for rehabilitative purposes and on a restrictive commitment as a means of protecting the public safety,” commitment to DJJ cannot be based exclusively on retribution. (Michael D., supra, 188 Cal.App.3d at p. 1396.) At disposition, the juvenile court must act consistently with these purposes. (In re Schmidt (2006) 143 Cal.App.4th 694, 716.)
In order to commit a minor to the DJJ, “there must be evidence in the record demonstrating both a probable benefit to the minor by a [DJJ] commitment and the inappropriateness or ineffectiveness of less restrictive alternatives.” (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396; In re George M. (1993) 14 Cal.App.4th 376, 379; section 734 [“No ward of the juvenile court shall be committed to [the DJJ] unless the judge of the court is fully satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he [or she] will be benefited by the reformatory education discipline or other treatment provided by the [DJJ].”].)
In making its dispositional order, the court must “consider ‘the broadest range of information’ in determining how best to rehabilitate a minor and afford him adequate care.” (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329 (Robert H.), quoting In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684.) In addition to any other relevant and material evidence, the court should also consider “(1) the age of the minor, (2) the circumstances and gravity of the offense committed by the minor, and (3) the minor’s previous delinquent history.” (§ 725.5.)
B. Standard Of Review
We review the juvenile court’s decision to commit defendant to the DJJ for abuse of discretion. (Robert H., supra, 96 Cal.App.4th at pp. 1329-1330; In re Asean D. (1993) 14 Cal.App.4th 467, 473; see also In re Emmanuel R. (1994) 94 Cal.App.4th 452, 465 [“ ‘ “ ‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’ ” ’ ”] .) “We must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them.” (Michael D., supra, 188 Cal.App.3d at p. 1395; accord, Robert H., supra, 96 Cal.App.4th at pp. 1329-1330 ; In re Asean D., supra, 14 Cal.App.4th at p. 473.) Substantial evidence is “ ‘evidence which is reasonable, credible, and of solid value . . . .’ ” (In re Paul C. (1990) 221 Cal.App.3d 43, 52.)
We conclude that the court acted in conformance with the above standards, and defendant’s commitment to the DJJ did not constitute an abuse of discretion.
III. Discussion
A. The Record Contains Substantial Evidence That Defendant Would Probably Benefit From a DJJ Commitment
At the time of his commitment, defendant was a troubled 16 year old with a lengthy criminal record. Defendant was committed for the following offenses: felony robbery, two counts of felony receiving stolen property, felony burglary, and misdemeanor escape. Defendant admitted those offenses, and also acknowledged committing numerous additional crimes, at one point estimating he was responsible for at least 15 burglaries. Following his escape from Camp Sweeny, defendant also tried his hand at drug dealing, although he apparently proved unsuccessful in this venture. Over the two years preceding his DJJ commitment, defendant had been engaging in criminal activity with increasing frequency and “criminal sophistication,” and was not the least bit deterred by probation or multiple camp placements.
In additional to his criminal past, defendant has an admitted and well-documented history of substance abuse. At the time of his first arrest in 2004, defendant was smoking marijuana two times a week. By 2006, he was doing so four times a day on a daily basis. He also admitted to alcohol consumption throughout the course of his criminal career.
Defendant also has a history of poor academic performance, with excessive truancy being the primary problem. And on those rare occasions when defendant did in fact attend school, he exhibited extensive behavioral problems, ranging from bringing drugs onto campus, to sexually harassing other students, to coming to school under the influence of drugs, to threatening another student.
Given these circumstances—the seriousness of defendant’s commitment offenses, his increasing criminal conduct, his substance abuse problems, his inability to conform his behavior in an academic setting—compounded by his refusal to submit to his family’s authority, defendant was clearly out of control and in dire need of a structured and rigid rehabilitation program such as that available at the DJJ. This evidence easily supports Commissioner Kliszewski’s conclusion that defendant would benefit from the strict discipline and treatment programs offered by the DJJ.
Defendant disputes this conclusion on numerous grounds, first contending that “[t]here is nothing in the probation report prepared for the hearing which could possibly support” such a finding. Instead, defendant argues, “The court’s only discussion of any benefit to [defendant] was made at the end of the hearing and he just summarily filled in the statutory blanks with general comments about programs for education. The court did not identify a single program that would be available to [defendant] at DJJ, other than ‘anger management.’ ”
Defendant also notes that a DJJ commitment was contrary to the recommendation of the probation department as the probation officer recommended that defendant be placed at a remote wilderness program, while the placement unit supervisor indicated that defendant was “marginally appropriate for placement services.” It is well-established that the probation department’s recommendation is just that: a recommendation. The court is under no obligation to follow this recommendation, which is merely advisory. Rather, it is free to make its own disposition: “[H]aving considered [the social study], the court ‘may reject in toto the report and recommendation of the probation officer.’ [Citations.] ‘The primary function served by the probation report . . . is to assist the court in determining an appropriate disposition after conviction.’ [Citation, italics added.] In the final analysis that determination is a matter of judgment for the court, not the probation officer.” (People v. Warner (1978) 20 Cal.3d 678, 683, superseded on other grounds by Penal Code § 1238; see also Robert H., supra, 96 Cal.App.4th at p. 1329.)
By this argument, defendant appears to suggest that in order to conclude that a DJJ commitment would be of probable benefit to defendant, the court was required to enumerate the specific programs available at the DJJ that would provide defendant with the help he needed and to detail, precisely, how defendant would benefit from the commitment. Defendant submits this proposition without citation to authority, which is perhaps not surprising, as the law is to the contrary. While the juvenile court must find DJJ commitment to be of probable benefit to the minor (§ 734), “the specific reasons for such commitment need not be stated in the record. Rather that determination must be supported by substantial evidence contained within the record.” (In re Robert D. (1979) 95 Cal.App.3d 767, 773.) In light of defendant’s history as detailed above, Commissioner Kliszewski’s finding that defendant would benefit from the reformatory education discipline and other programs of the DJJ was amply supported by the evidence. The absence of specificity regarding the programs available at the DJJ does not negate this result.
Defendant also suggests that Commissioner Kliszewski failed to make an individualized determination of the suitability of a DJJ commitment, instead automatically committing defendant for failing to heed his prior warning to stay in camp. This result, defendant argues, constitutes an abuse as discretion as recognized by us in In re Ronnie P. (1992) 10 Cal.App.4th 1079 (Ronnie P.). There, the minor was ordered into a treatment program, with DJJ commitment “stayed” or “suspended.” The minor subsequently ran from the treatment program. At a subsequent dispositional hearing, the court committed the minor to the DJJ based on the court’s prior warning that he would be so committed if he got into any further trouble. (Id. at pp. 1082-1083.) On appeal, Presiding Justice Kline concluded that the commitment constituted an abuse of discretion, in part because the court failed to conduct a “thorough review of dispositional considerations in favor of a previously ‘stayed’ [DJJ] commitment.” (Id. at p. 1087.) Justice Kline reiterated that the court must conduct a review of the “circumstances every time the minor appears for a dispositional hearing” and then make an individualized determination as to the appropriate disposition each time. (Id. at p. 1088.)
The case before us is distinguishable from Ronnie P., as here there is no evidence of an improper “self-executing” or “predetermined” dispositional order. (Ronnie P., supra, 10 Cal.App.4th at p. 1088.) Defendant claims that “the court warned [defendant] earlier about staying in camp, and when he did not, felt that DJJ commitment was justified.” This presumably refers to the commissioner’s observation during the disposition hearing that “I told him last time when he went to camp that he had to stay at camp. So he goes and escapes from camp within about a month and a half. Then he commits a residential burglary. Then he commits another residential burglary.” This passage, however, does not suggest that the court automatically committed defendant to the DJJ based upon a prior threat to do so if defendant escaped from the camp placement. And we see no other evidence in the record that the DJJ commitment was predetermined.
Defendant also claims that Commissioner Kliszewski failed to examine the entire dispositional picture when committing defendant to the DJJ. (See Ronnie P., supra, 10 Cal.App.4th at p. 1088.) The basis for this argument is two-fold. First, defendant speculates that the court reviewed only the final dispositional report, a contention we reject as nothing more than unsubstantiated speculation. We have no doubt that Commissioner Kliszewski was familiar with all pertinent aspects of defendant’s history, having handled defendant’s case from its inception in 2004 and having access to the entire court file.
Second, defendant surmises that the court could not possibly have considered the entire dispositional picture because it never “expressed any interest in [defendant’s] background or family circumstances” and never “offered any basis for believing that [the] DJJ could offer [defendant] necessary mental health services.” In making this argument, defendant places heavy reliance on a psychological evaluation conducted when defendant’s case was transferred to Sonoma County. In a January 6, 2005 report resulting from that evaluation, Dr. David Schneider assessed defendant’s mental health, noting, inter alia, his prior suicide attempt, his feelings of depression, his substance abuse problems, and his dysfunctional family background, and concluded that defendant, “a severely depressed, undersocialized, and angry adolescent,” could benefit from treatment. Defendant notes that the final dispositional report did not mention the psychological evaluation and submits that had it done so, the court would have considered a more suitable placement. We disagree. The evaluation was conducted 21 months prior to the dispositional hearing, and its relevance at the hearing is questionable. Additionally, the report was contained in the court’s file, as was other information regarding defendant’s mental health. The mere fact that Commissioner Kliszewski did not reference this issue at the hearing does not mean he did not consider it.
It appears that page five of Dr. Schneider’s report was missing from the copy of the report in the court’s file. Defendant augmented the record on appeal to provide the missing page. The missing page summarized in pertinent part: “[Defendant] presents as a severely depressed, undersocialized, and angry adolescent engaging in aggressive behavior as part of a group, including theft while confronting and assaulting victims. He acknowledged that the behavior was premeditated and involved a degree of criminal sophistication, including a process of victim selection. He has himself been a victim of aggression in the form of physical abuse by his father and was essentially abandoned by his mother for twelve years while she was incarcerated for crimes related to her drug addiction. [¶] [Defendant] presents as younger than his chronological age, both in size, appearance, and behavior. Probably due to nurturing by his paternal grandmother, he has an affable, pleasant, and cooperative side to him. He was able to verbalize feelings of rage and despair as well as depression. [¶] [Defendant] made a suicide attempt at age 12 by drinking bleach. It is significant that he received neither medical nor psychological treatment in response to this. [Defendant] has expressed suicidal ideation in the recent past. Because [defendant] has limited emotional controls, emotional expression is likely to be impulsive, immature, and labile. [¶] While both mother and father have expressed a desire to have [defendant] remain in one of their homes and a willingness to participate in treatment to that end, neither parent has a history of sustained adaptive functioning in the community or as monitors of [defendant’s] behavior. However, [defendant] has not received any treatment in the past and he evidences the psychological resources to benefit. Sierra Youth Center may be appropriate if his parents will in fact follow through on their stated commitment to participate. Staff in any program should be aware of [defendant’s] pattern of identifying and targeting possible victims he perceives as weaker.”
B. The Record Contains Substantial Evidence That a Less Restrictive Placement Would Be Ineffective
We turn to the second criterion the court must consider before ordering a DJJ commitment, namely whether a less-restrictive placement would be ineffective or inadequate. (In re Angela M., supra, 111 Cal.App.4th at p. 1396.) And we conclude that defendant’s consistent failure at alternative dispositions provided ample evidence to support Commissioner Kliszewski’s determination that less-restrictive placement was no longer an option.
Following his initial arrest in 2004, defendant was granted formal probation in the care of his father. He failed on that probation. Defendant was then transferred to Sonoma County and again granted probation, this time in the care of his mother. He again failed on probation. Defendant was then sent to Sierra Youth Program, and he failed at that as well, running away from the camp after just over two months. After returning to Alameda County and being arrested for more criminal conduct, defendant was sent to a Camp Sweeney, but he again failed at that placement, running away after just over one month this time and going on to commit more crimes. In light of this history, it is abundantly clear to us that anything less than a locked facility—that being the DJJ—would be ineffective for defendant. When afforded less-restrictive alternatives before, defendant has—not once, not twice, but four times—failed to abide by the court’s order. Substantial evidence clearly supports the conclusion that this time around there was no appropriate alternative but DJJ commitment.
In opposition, defendant argues that in fact the court failed to even consider any other alternatives, instead “start[ing] with and end[ing] with DJJ.” Defendant explains: “Despite several attempts by appellant’s counsel to discuss other placement options, the court started with and ended with DJJ. Other than stating that it was unaware of other locked facilities, no other potential placement was discussed by the court at all. There was no effort to explain why other placements would not work not work [sic] as well as DJJ. The only possible conclusion to draw from the court’s comments, or lack of comment, was that the court came into the hearing having made up its mind that appellant would be committed to DJJ.”
In In re Teofilio A. (1989) 210 Cal.App.3d 571, 577, the court stated, “[I]f there is evidence in the record to show a consideration of less restrictive placements was before the court, the fact the judge does not state on the record his consideration of those alternatives and reasons for rejecting them will not result in a reversal. We emphasize, however, there must be some evidence to support the judge’s implied determination that he sub silentio considered and rejected reasonable alternative dispositions.” Here, defense counsel was urging the court to send defendant back to Camp Sweeney or to keep him at juvenile hall, the probation department had recommended a remote wilderness program, and defendant’s grandmother suggested that he go to Las Vegas to live with other relatives. Commissioner Kliszewski was thus presented with and considered alternatives to the DJJ, and he was not obligated to state on the record his reasons for rejecting them.
In one of his more audacious arguments, defendant claims that “the evidence is hardly clear that a locked facility was necessary.” “Yes, appellant did run away on two occasions from a camp,” he admits. “However,” he explains, “the only evidence available was that he was told the first time he would be removed from the program anyway . . ., and the second time he admitted being very depressed regarding the death of a friend. . . . Appellant had been earlier diagnosed by the court psychologist as suffering from severe depression and in need of treatment. . . . This evidence suggests that, with adequate treatment, appellant would have no need to run away.” Defendant was sent to unlocked facilities on two different occasions; defendant absconded from both facilities. It was not unreasonable for the court to conclude that it would have been equally futile to afford defendant a third opportunity since there was simply nothing to suggest that defendant would perform differently the next time around.
Defendant also reiterates his prior argument that although the court is required to examine the “entire dispositional picture when making [a DJJ] commitment,” here the court, at both the disposition hearing and hearing on the motion for reconsideration, disregarded defendant’s background or family circumstances. Defendant speculates that had the court considered Dr. Schneider’s report, it would have realized that defendant’s depression might have been the cause for his repeated escapes from camp placements and would have considered a more suitable placement than the DJJ. Again, facts concerning defendant’s mental health were plentiful in the record before the court, and simply because the commissioner did not specifically mention defendant’s psychological history or his family background when making his disposition order does not mean he did not consider them.
Finally, defendant objects to the court’s observation that by committing defendant to the DJJ, the community will be protected from his criminal activities. Defendant submits that the contrary is true, that he “will undoubtedly come out of DJJ as a much greater danger to the public than he was when he entered that institution.” That is hardly a guaranteed outcome but rather a choice for defendant to make. We hope that, unlike his wasted opportunities in the past, defendant takes advantage of this opportunity to remedy the wrongs in his life and become an upstanding member of society. But whether he does or not, defendant has victimized numerous people with his ongoing criminal conduct, and society has a right to have that criminal element removed from its midst.
We close with reference to Michael D., supra, 188 Cal.App.3d 1392, where the court concluded that, given the minor’s history, “the trial court could have inferred (1) that the minor’s best interests require an environment providing firm, strict discipline for his ‘out of control’ behavior . . ., (2) without such discipline and realignment of his social and moral structure he poses a demonstrated threat to public safety, (3) that the minor requires intensive rehabilitative treatment for his substance abuse, and (4) the minor’s parents were demonstrably incapable of caring for the minor consistent with the minor’s best interests in treatments and guidance . . . .” (Michael D., supra, 188 Cal.App.3d at p. 1397.) Likewise here, where we conclude Commissioner Kliszewski did not abuse his discretion in committing defendant to the DJJ.
We also note that two other judicial officers agreed with his commitment decision. At a dispositional hearing scheduled for August 15, 2006, Commissioner Albert Thews advised, “I am finding myself contrary with the recommendation. I’m considering [the DJJ].” He then continued the matter so it could be heard by Commissioner Kliszewski. Likewise, at the October 4, 2006 hearing on defendant’s motion for rehearing, Judge Morris indicated that he had read the transcript of the dispositional hearing and had “no disagreement with what the commissioner has said or done.”
IV. Disposition
The order committing defendant to the DJJ is affirmed.
We concur: Haerle, Acting P.J., Lambden, J.
All statutory references are to the Welfare and Institutions Code unless otherwise noted.