Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 67325
ROBIE, J.
Minor D. T., age 17, admitted that he came within the provisions of Welfare and Institutions Code section 602 in that he committed robbery in which he personally used a deadly and dangerous weapon, a pellet gun. In exchange, five related counts and an unrelated juvenile wardship petition were dismissed in the interest of justice. The minor was committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (the division).
On appeal, the minor contends the division commitment was an abuse of discretion because: (1) the juvenile court did not give appropriate consideration to less restrictive alternatives to the division; and (2) the evidence does not support the court’s conclusion that the division commitment would benefit the minor. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On September 23, 2009, the minor approached Hilario Garrido while he was in a car. The minor drew a “replica pellet gun” and demanded that Garrido give up the car, which he did. The minor and his girlfriend got into the car and drove away, all without Garrido’s permission. After a short chase by police officers, the minor was found hiding nearby with the gun. The minor did not have a driver’s license. At the time the minor resided in Stockton, San Joaquin County, California.
The term “replica pellet gun” is ambiguous on its face. Because the minor admitted a deadly and dangerous weapon enhancement, we construe the term to mean that the gun appears to fire bullets but in fact fires pellets, not that it appears to fire pellets but in fact does not fire. This is consistent with the juvenile court’s description of the gun as a “replica automatic -- semiautomatic pistol.”
The probation department’s disposition report showed that the minor was 17 years old at the time of the offense. His father is deceased, and his mother is a drug addict who never had custody of him. At age three, he was adopted by his paternal great-aunt. Since being booked into juvenile hall in September 2009, the minor had “not received any negative reports from staff.” The minor also had “not been tried in a setting of Court-ordered supervised probation.”
The minor, who should have been in the 12th grade, was not enrolled in school at the time of his arrest. When he last attended school, he “was failing every class.” He had not been diagnosed with any learning disabilities and had no history of “special education” or preparation of an individualized education plan.
The minor admitted that he had used marijuana, ecstasy, cough syrup, and alcohol. He had used marijuana “on a daily basis” and had not “attended any substance abuse counseling.”
The minor admitted that he had joined the Crips criminal street gang “four years ago” but claimed he had stopped “‘gang bangin[g]’” after approximately two years.
He claimed to be in good health and had no employment history. He said he “probably” had been “under the influence” at the time of the offense.
The minor stated he “knows what he did was wrong and he knows how the victim felt.” Regarding an appropriate consequence for his actions, he believed that “anything but” the division would be “suitable.”
The minor’s mother reported that he had “stole[n] from her in April 2009” and thereafter he refused to attend counseling. In May 2009 the minor “left home without permission, ” and the mother did not know his whereabouts until August 2009, when she learned he was staying with his grandmother. She said he “has always got[ten] into trouble but now it has gotten more serious.” In her view, the minor “is very manipulative and will try to talk his way out of any situation.” He had “a long history of anger management problems” and lacked “self[-]control.”
The disposition report stated that the minor’s case had been “screened by the Administrative Screening Committee” and that the committee’s “consensus” was to recommend a division commitment. The authoring probation officer concurred with this recommendation.
At the contested disposition hearing in March 2010, the minor presented testimony from John Shields, Ph.D., a clinical and forensic psychologist who had “worked with” and evaluated minors “for a variety of purposes before the juvenile court, ” including “[s]everal dozen, if not a few hundred” dispositions. Shields interviewed the minor in March 2010 and administered some “standardized psychological tests” to assess his “cognitive or intellectual abilities, including memory function, ” “academic achievement levels, ” “personality characteristics, ” and “any kind of potential mental disorder or diagnosable condition.” Shields also used a “structured interview” to assess the minor’s “risk for continued delinquent conduct.” Shields concluded the minor had a “substance abuse disorder” and a “mood disorder specific to depressed mood or depressive condition.”
Shields explained that the tests showed the minor’s “verbal cognitive ability to be greater than his nonlanguage-based problem solving or intellectual abilities, and the overall composite level of his abilities is at borderline range. We are talking about a significantly subaverage level of functioning. [¶] His memory index, on the other hand, is... significantly higher and is very near the average level. So this is a minor who has adequate[] functioning memory capacity, but has some notable, or... significant deficits in some areas of his cognitive abilities or problem-solving skills.”
Regarding reading comprehension and mathematics, the minor was “functioning in the elementary grades, whereas in site [sic] word reading and in spelling he shows high school level grade equivalence. So again, he shows some nearly expected levels of functioning, but also some significant areas of deficit.”
Regarding the minor’s “risk assessment, ” Shields considered 24 factors “that have been shown in a number of studies to be associated with risk for delinquency.” Some of the factors “involve the minor’s history.” The minor “scored the high risk level on 10 of those 24 factors. He was rated in the moderate range on... six of them, and [on] the other eight factors he was at the low risk level.”
Shields concluded that the minor had “a need for intervention.” Because there was no “information on prior attempts to intervene with” the minor or to “rehabilitate his behavioral or psychosocial needs, ” Shields did not know “what the best fit would be.” However, he knew there were “a lot of options that would be available to rehabilitate, to develop a program for rehabilitation or intervention with a minor like him since nothing’s been tried before.” Shields was “most concerned” about the minor’s substance abuse and “depressive condition.” Shields said that an intervention program needed “to take into account [the minor’s] specific abilities and deficits.” Any “residential setting” should have a “pro-social environment” or “social skills training, ” as well as “substance abuse treatment.”
Defense counsel asked Shields to evaluate whether the division “is an appropriate setting” for the minor’s “rehabilitation.” Shields was “aware” that the division has “programs available, ” including “substance abuse treatment programs, ” as well as “mental health professionals” including “psychiatrists.” He conceded that “one might say” that the division “‘would be appropriate for this boy.’” However, after “review[ing] some of the documents that have looked recently at the programs at” the division, Shields had “very serious concerns” whether the division would “most optimally meet his treatment needs.” Based upon his review of these “documents, ” Shields said that some mental health professionals at the division were “delivering treatment in ways that are suspect ethically and professionally with a history of the implementation of psychotropic medications being dealt with inappropriately.”
Shields admitted that the “12th Report of the Special Master in the Farrell case, ” admitted as “People’s Exhibit 1, ” was the report he had relied upon for his opinions of the standard of care at the division. Shields acknowledged that this December 2009 report, which was critical of the division, addressed the mental health treatment being offered in a program that was “specific for sex offenders, ” and that the minor “does not have any sexual behavior treatment indicated.” However, Shields emphatically disagreed the report was irrelevant to the minor’s situation. Shields claimed the report “informs us more broadly about how mental health professionals are delivering services within” the division.
Shields explained that at the division, some group sessions are run by “youth correctional counselors” rather than by “licensed mental health professionals.” In Shields’s view, this is not “an appropriate delivery of service.” The minor “would be better served... in a program where there are recognized, competent, experienced mental health professionals” who can deliver services consistently and in conformance with the standard of care.
Shields speculated that the division setting might not have a “pro-social influence” upon the minor. Shields did not know whether “social skills training” was generally available. Rather, Shields believed the division environment would be “problematic” because the majority of minors in the division setting are more delinquent than this minor in that they have an average of three sustained petitions.
On cross-examination, Shields conceded that the minor’s observed depression could have been caused in part by his having been in custody in juvenile hall for the preceding seven months.
Shields “generally agree[d]” with the prosecutor’s suggestion that the minor’s “intelligence level” could be “raised” if he “stopp[ed] smoking marijuana on a daily basis and using ecstasy.”
Shields admitted the minor’s offense made him a higher risk to reoffend than “another 17 year old who hasn’t committed an offense like he has.” Shields also agreed that the offense placed the minor in a “real risky situation, ” in that the victim could have been armed with a firearm. Shields stated that the minor had used “abysmal judgment” when committing the crime.
Shields effectively conceded that he had never recommended that a minor should be remanded to the division or its predecessor, the California Youth Authority.
The juvenile court ruled: “This is an extremely serious case. The record reflects that the minor selected a victim at random, produced a replica automatic -- semiautomatic pistol, pointed it at the victim and relieved the victim of his car keys and subsequently took his car. He was accompanied in this episode by a 15-year-old girl, I think probably his girlfriend. This is an extremely serious and dangerous crime. It’s dangerous, as [the prosecutor] has pointed out, to the victim, obviously, who you don’t know how somebody is going to react to something like that. It’s equally dangerous to the minor, who, if he picks the wrong victim, could end up dead. [¶] The dual purpose of this Court -- and I’m very mindful of that. Anybody who’s been here is aware and knows that I am going to take this job very seriously, as far as I don’t give up on kids. Rehabilitation is the goal. I’m required to do... what is in the best interests of the minor. There is a dual purpose of protecting the public. [¶] The only alternatives that are available to this Court would be a period of detention in juvenile hall and [the] therapeutic value of that is minimal. Juvenile hall is not meant to be therapeutic. It is what it is. It’s a holding facility while cases are disposed of. Other alternatives would be the juvenile camp. [¶] The doctor testified that... the minor was in need of treatment at the hands of mental health clinicians, and the camp is not in the position to provide that type of specialized care. I haven’t heard any testimony to the contrary. [¶] The only other alternative would be an out-of-home placement, which would be an unlocked facility. Dr. Shields testified that [the division], formerly CYA, has its problems. We have been hearing about those ever since I have been here for almost five years at this point. However, there are programs available there. And when I consider the nature of the crime and the danger to the public, in this particular case I do not believe that the alternatives would be viable options, and I believe that the minor would benefit from the discipline, training, education, substance abuse counseling, gang awareness counseling, ... that would be provided by [the division], and that the commitment would meet the goals of rehabilitation and treatment while protecting the public. [¶]... [¶] The Court, as I indicated, has considered camp and placement and finds it to be not appropriate as would an extended period of time in juvenile hall, in that the minor is a serious continuing danger to society unless confined based upon the nature of the crime itself. Again, I’m mindful of the fact that he hasn’t been here before, but the crime that he committed is a pretty heinous situation and carjacks somebody at random at gun point. He puts the victim in danger along with his 15-year-old coresponsible.”
DISCUSSION
“The decision of the juvenile court may be reversed on appeal only upon a showing that the court abused its discretion in committing a minor to [the division]. [Citations.] An appellate court will not lightly substitute its decision for that rendered by the juvenile 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. [Citations.] In determining whether there was substantial evidence to support the commitment, we must examine the record presented at the disposition hearing in light of the purposes of the Juvenile Court Law. [Citations.]” (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395; see In re Asean D. (1993) 14 Cal.App.4th 467, 473.) Those purposes include the “protection and safety of the public”; to that end, punishment is now recognized as a rehabilitative tool. (Welf. & Inst. Code, § 202, subds. (a), (b); In re Asean D., at p. 473; In re Michael D., at p. 1396.)
We next consider the minor’s contention that the juvenile court “considered... only some of the available less-restrictive alternatives and rejected those alternatives for reasons unsupported by the evidence.” We are not persuaded.
In summation, the minor’s counsel suggested as alternatives a “residential/mental health program, ” or one of the “multiple placements on probation’s list that do deal with” the minor’s issues, or “the camp.” Despite this reference by counsel, no list of placements had been offered into evidence. Shields conceded that, with respect to the foregoing options, he did not know “what the best fit would be.”
The juvenile court rejected the alternative of juvenile hall because its “therapeutic value” was “minimal, ” in that it “is not meant to be therapeutic;” rather, it is “a holding facility while cases are disposed of.” The court rejected the camp because it “is not in the position to provide” “treatment at the hands of mental health clinicians, ” which Shields opined that the minor needed. Evidently referring to other “placements on probation’s list, ” the court rejected “out-of-home placement, which would be an unlocked facility.” The court then reiterated: “The Court... has considered camp and placement and finds it to be not appropriate as would an extended period of time in juvenile hall, in that the minor is a serious continuing danger to society unless confined based upon the nature of the crime itself. Again, I’m mindful of the fact that he hasn’t been here before, but the crime that he committed, ” “carjack[ing] somebody at random at gunpoint, ” “is a pretty heinous situation.” (Italics added.)
The minor claims the juvenile court failed to consider his “previous delinquent history, ” as required by Welfare and Institutions Code section 725.5, which provides: “In determining the judgment and order to be made in any case in which the minor is found to be a person described in Section 602, the court shall consider, in addition to other relevant and material evidence, (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.”
The record refutes the minor’s claim. The court stated it was “mindful” that the minor “hasn’t been here before.” Nothing in the record suggests that the court overlooked the minor’s age or other relevant factors.
The minor relies on Shields’s testimony that the minor’s postoffense behavior in juvenile hall did not warrant “significant intervention or separation of him for violent behavior or ongoing problems.” However, the minor’s acceptable behavior in the hall--a locked facility--did not reasonably suggest that a secure setting no longer was necessary. If anything, the minor’s behavior suggested that he would do well in a secure setting at the division.
The minor’s quotations of this remark do not make plain that it refers to his behavior in juvenile hall and not to the commitment offense.
The minor claims the juvenile court “neglected to consider other relevant factors specific to [him] and to this case.” However, he identifies none of the assertedly overlooked factors; thus, the claim fails for lack of explication.
The minor relies on In re Lawrence B. (1976) 61 Cal.App.3d 671, disapproved on other grounds in In re John H. (1978) 21 Cal.3d 18, 24, for the proposition that it is error to commit a minor to the division “‘merely because of the gravity of the crime, ’” because “‘[s]uch an order would in effect be punitive’” and “‘[j]uvenile court authorities are not designed to punish.’” (Lawrence B., at pp. 674, fn. 2, 677 (dis. opn. of Jefferson, J.).) The minor’s reliance on Lawrence B. is misplaced given the subsequent recognition of punishment as a rehabilitative tool. (In re Asean D., supra, 14 Cal.App.4th at p. 473; In re Michael D., supra, 188 Cal.App.3d at p. 1396.)
The minor next claims the juvenile court “did not give appropriate consideration to less restrictive locked facilities prior to issuing its [division] commitment order.” Specifically, he claims the court failed to consider “the less-restrictive alternatives of a locked group home facility or ranch.” We disagree.
The minor’s argument is based in part on In re Michael R. (1977) 73 Cal.App.3d 327, in which the probation officer’s report recommended a less restrictive placement and stated reasons why it was appropriate for the minor. (Id. at p. 330.) Here, in contrast, neither party asked the court to consider any less-restrictive locked facilities. Probation’s only recommendation was the division. Dr. Shields did not recommend any locked facility. The minor’s counsel did not suggest that locked facilities were “on probation’s list”; nor did she ask the court to “look into the possibility” of finding one.
The existence and availability of treatment options cannot simply be presumed on appeal. Rather, error in failing to consider them must be affirmatively shown, as was done in In re Michael R. (See Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532-1533, and cases cited therein.) Here, the minor has not done so.
The minor next claims the record fails to support the juvenile court’s findings that the camp was not in position to provide mental health treatment, and that juvenile hall is a “holding facility” that is “not meant to be therapeutic.” Indeed, the record does not indicate what services were available at the camp or whether there was a therapeutic element to juvenile hall.
However, the juvenile court indicated that it had been in its current assignment for “almost five years.” The minor did not object to the court’s comments or otherwise suggest that its understanding of the camp and the hall, developed over the course of those years, was factually incorrect. Thus, contrary to the minor’s appellate claim, the court had no occasion to “direct Shields, probation or the parties to determine whether camp [or the hall] could provide the care and treatment that [he] needed.”
This brings us to the minor’s contention that there was no substantial evidence that commitment to the division would probably benefit him. The contention has no merit.
Welfare and Institutions Code section 734 provides: “No ward of the juvenile court shall be committed to [the division] 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 will be benefited by the reformatory educational discipline or other treatment provided by [the division].”
Thus, “[t]o support a [division] commitment, it is required that there be evidence in the record demonstrating probable benefit to the minor....” (In re Teofilio A. (1989) 210 Cal.App.3d 571, 576.) However, it is not necessary that less restrictive alternatives be attempted before a division commitment is ordered. (In re James H. (1985) 165 Cal.App.3d 911, 922.)
The minor’s expert, Shields, conceded that the division has “programs, ” including substance abuse treatment programs, as well as “mental health professionals, ” including psychiatrists; thus “one might say” that the division “‘would be appropriate for this boy.’” Shields’s concern was whether the division would “be able to most optimally meet his treatment needs.” (Italics added.)
Viewed in the light most favorable to the disposition order (In re Jose R. (1982) 137 Cal.App.3d 269, 275), Shields’s concession that “one might say” that the division “‘would be appropriate’” effectively acknowledges that the division treatment probably would benefit the minor, even if it is not the “most optimal[].”
Shields said that the division’s implementation of mental health programs was less consistent and arguably less professional than certain alternatives. However, he never suggested that the treatment was so inconsistent or so unprofessional that it fell outside the bounds of Welfare and Institutions Code section 734, in that the minor probably would not benefit from the treatment.
Shields’s other principal criticisms of the division were that the minor would be surrounded by others who arguably were more delinquent and more gang affiliated than he, and that it was uncertain whether the division would provide the social skills training or “pro-social influence” that an “ideal setting” would provide. Neither of these factors suggests error under Welfare and Institutions Code section 734, because neither addresses whether the treatment that is offered at the division would be beneficial. There was no error.
DISPOSITION
The judgment is affirmed.
We concur: HULL, Acting P. J., DUARTE, J.