Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. J35814
GEMELLO, J.
Damien B. appeals his commitment to the Fouts Spring Youth Facility on the bases that there was insufficient evidence of benefit to him and reasonable efforts had not been made to avoid removing him from his home. We affirm.
Background
In eight separate criminal incidents, Damien came before the juvenile court. The seriousness of the crimes escalated.
In 2004, Damien (born in January 1989) was cited for trespassing, disturbing the peace, and using offensive words in a public place. He was placed on diversion and referred for individual and family counseling, which he and his mother attended for about ten sessions. He had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and was prescribed medication at about the age of 13 (2002), but he discontinued the medication after a year due to its side effects. He had an extensive school disciplinary record.
In August 2005, a Welfare and Institutions Code section 602 petition was filed alleging Damien committed assault with a deadly weapon by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1); count one) and assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1); count two). He had participated in a group attack on several members of a rival gang, who were assaulted with padlocks, bats, rocks and fists. Damien admitted being present during the incident and kicking a victim. He denied gang involvement.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The facts of Damien’s offenses are taken from the probation reports.
Pursuant to a negotiated plea, Damien admitted count two and count one was dismissed. The court declared Damien a ward of the court; ordered him detained for 27 days with credit for time served in juvenile hall; released him to his mother’s home; set the maximum term of confinement at four years; and ordered him to perform community service, attend school, participate in anger management counseling, observe a curfew, stay away from the victims and other participants in the crimes, write letters of apology to the victims, and spend five weekends in juvenile hall at the probation officer’s discretion.
In January 2006, the district attorney filed a petition alleging Damien brandished a weapon at a person in a motor vehicle, a felony (Pen. Code, § 417.3; count 1). Damien was arguing on a cell phone with a passenger in a car he was following, and he reached out of his car window and pointed a handgun at the other car.
In February 2006, the petition was amended to add an allegation that Damien committed second degree robbery (Pen. Code, § 211; count 2), and to make gang enhancement allegations as to both counts (Pen. Code, § 186.22, subd. (b)(1)). Damien demanded cigarettes from a person he encountered by the library. When the victim refused and started walking away, Damien and two friends pursued him. One of Damien’s friends grabbed the victim’s pack of cigarettes and punched him. Damien identified himself as a gang member and threatened the victim. Damien later denied he had done anything wrong and denied gang involvement.
In February, Damien was released to his mother’s home. His school record during the spring of 2006 included a suspension for throwing a football at someone after being specifically warned not to do so. In response to the suspension, Damien’s mother placed him on restriction. Damien left home without her permission and did not return for four days. She reported to probation that Damien was frequently disrespectful and defiant at home. Damien admitted daily marijuana use but denied any drug problem. His mother expressed concern that he was using other controlled substances.
Pursuant to a negotiated disposition, the prosecutor amended the petition to reduce the brandishing charge to a misdemeanor (Pen. Code, § 417, subd. (a)(2)), dismiss the gang enhancement as to counts 1 and 2, and add an allegation that Damien committed grand theft on a person based on the facts underlying the second degree robbery charge (Pen. Code, § 487, subd. (c); count 3). Damien admitted the brandishing and grand theft charges. The court set the maximum term of confinement at five years, four months, ordered Damien detained for 21 days with credit for time served and again released him to his mother’s home on probation. He was ordered to attend school; participate in mandatory drug and alcohol, anger management and weapons counseling; submit to drug testing; observe a curfew; complete 50 hours of community services; stay away from the victims and participants in the incident; and observe gang-related probation terms.
In August 2006, the district attorney filed a petition alleging Damien committed a misdemeanor, disturbing the peace by fighting (Pen. Code, § 415, subd. (1)). He had engaged in a fistfight with his cousin. He was briefly detained in juvenile hall before being released to his mother’s care.
Later that same month, the probation department filed a petition alleging Damien violated probation. The Vacaville Police Department reported that Damien was loitering and intimidating residents in an apartment complex. As a condition of his probation, Damien had been ordered to stay away from the complex and from a person who lived in the complex.
Damien admitted the disturbing the peace allegation and the alleged violations of probation. The court set the maximum term of confinement at five years, five months; continued Damien on probation, ordered Damien to serve a weekend at juvenile hall; and released him to his mother’s custody.
In September 2006, the district attorney filed a petition alleging Damien committed two counts of second degree robbery in December 2005 and one count of second degree robbery in September 2006 (Pen. Code, § 211). In the December incident, Damien and another minor confronted two brothers in a park and demanded their money. Damien served as a lookout while his companion shoved one of the victims against a wall and held him while searching his pockets for cash. In the September incident, Damien entered a sandwich shop and took money from a tip jar. When confronted by a clerk, he said, “What are you going to do about it?” He slapped his chest and moved his body from side to side in a menacing manner. The clerk told Damien he was being videotaped. He then took all of the money out of the tip jar, put it in his pockets, and said, “I’m Damien. I took the money. Now what?” Damien later said he initially took the money as a joke but he “became animated” when the clerk disrespected him and then decided to take all of the money.
Damien admitted the September 2006 robbery and the other counts were dismissed. The court set the maximum term of confinement at six years, 11 months and referred the case to probation for a disposition report while Damien remained in juvenile hall. Probation recommended commitment to the Fouts Springs Youth Facility (Fouts).
A contested disposition hearing took place October 27, 2006. Damien’s counsel requested a less restrictive placement, arguing Damien had only been slapped on his hand for the last two years and a commitment to Fouts was an extreme escalation in consequences. During his wardship, he had never been placed on intensive home or probation supervision or in a drug treatment program, nor had he been provided specific referrals for counseling other than anger management classes. Damien’s counsel argued that the September 2006 tip jar incident arose from a misunderstanding and claimed Damien immediately took responsibility for the incident. He said he had accepted responsibility for all of his offenses and was committed to turning his life around. Counsel urged the court order him to attend anger management classes and substance abuse treatment for three months and schedule a follow-up hearing before he turned 18.
The prosecutor argued, “He’s almost 18 . . . . If we want to prepare him so that we don’t have to see him in the adult system, this is his last chance as a juvenile. . . . [T]he way to help him the best and protect the community is to send him to Fouts. It’s not top of the line. We’re not talking about CYA.”
The court committed Damien to Fouts, explaining it was the only available placement that would provide Damien with the tools he needed to succeed in life. It offered a college preparatory high school, a library, substance abuse counseling, vocational training, recreational opportunities, and “a complete absence of gang activity.” “[P]erhaps probation could have done a better job for you in the past. But [for] what we’re dealing with today, Fouts is the best program that we can offer to you.”
Discussion
A disposition order is reviewed for abuse of discretion. (In re Tyrone O. (1989) 209 Cal.App.3d 145, 151.) The juvenile court must choose a disposition that is consistent with the legislative purposes of juvenile court law. (Ibid.) Those purposes include protecting the safety of the public and the minor; preserving and strengthening the minor’s family ties when possible and when consistent with the minor’s and the public’s best interests; and holding minors accountable for their behavior, which may include punishment consistent with rehabilitative objectives. (§ 202, subds. (a), (b).) The court must 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.” (§ 725.5.) Permissible sanctions include a fine, community service, restrictive probation conditions, placement in a local detention or treatment facility such as juvenile hall or a camp, and commitment to the California Youth Authority. (§ 202, subd. (e).) A more restrictive disposition may be appropriate in certain circumstances even if less restrictive alternatives are available. (In re Tyrone O., at p. 151.)
The juvenile court acted well within its discretion in committing Damien to Fouts. Damien was about to turn 18, at which time he would no longer be eligible for juvenile dispositions as consequences for his crimes. His age rendered him ineligible for other intensive supervision programs. The available substance abuse treatment program, Teen Outreach, did not offer behavior modification, the treatment Damien needed based on his history of offenses. Fouts provided Damien the opportunity to complete his high school education, learn vocational skills, and modify his antisocial behavior in a gang-free environment. The probation officer opined that, even assuming Damien had made a sincere commitment to turning his life around, a Fouts commitment would benefit him because it would prepare him for adulthood. The disposition addressed the legislative goal that, “When the minor is no longer a ward of the juvenile court, the guidance he or she received should enable him or her to be a law-abiding and productive member of his or her family and the community.” (§ 202, subd. (b).)
The Fouts placement was not excessive punishment in light of the escalating seriousness of Damien’s crimes. Damien had committed a series of offenses that included the use or display of force: a group gang attack with bats, padlocks and rocks; a strong arm robbery; and brandishing a firearm. He committed three thefts and in the tip jar incident the prosecutor, who had interviewed the victims, reported that his conduct was menacing and aggressive. The public was entitled to protection from further acts of aggression by Damien. (§ 202, subd. (b).)
Moreover, the court reasonably concluded that more severe consequences were necessary for Damien’s rehabilitation. Despite repeated detentions in juvenile hall, a weekend commitment to juvenile hall, increasingly restrictive conditions of probation, and his remaining in his mother's home, his criminal conduct escalated. He continued to cause disciplinary problems in school as well, and his academic performance was in decline. The record belies Damien’s claim that he readily admitted his responsibility for these acts. Despite his formal admissions of the offenses in court, he minimized his involvement in the gang attack, denied involvement in the brandishing incident (even at the October 27, 2006 disposition hearing leading to this appeal), and dismissed the tip jar incident as a joke that went awry. The court had imposed increasingly restrictive probation conditions as Damien continued to violate the law. It was not required to proceed lockstep through increasingly severe sanctions, but could properly conclude that as of November 2006 removal from the home and commitment to Fouts were necessary to serve Damien’s best interests and protect the public. (In re Tyrone O., supra, 209 Cal.App.3d at p. 151.)
On appeal, Damien argues the disposition was contrary to the purposes of juvenile court law because it tended to weaken Damien’s family ties. Both Damien and his mother presented evidence that if Damien were removed from the home, his family would lose Damien’s monthly Social Security disability payments, the only source of income for the family, and Damien’s mother and eight-year-old sister would become homeless. Damien argues that the family’s financial destitution would cause Damien emotional anguish that would interfere with his rehabilitation. At the disposition hearing in response to an inquiry from the court, Damien’s attorney responded that the court need not place much weight on the family’s financial situation because the mother was likely to receive benefits based on her own disability. The court reasoned that it placed Damien’s personal welfare ahead of his family’s financial situation in selecting an appropriate disposition. It acted well within its discretion in doing so.
On appeal, Damien raises for the first time an argument that placement at Fouts, which is in a remote location, would weaken Damien’s family ties by making visitation difficult. (§ 202, subd. (a), (b).) Having not raised this issue in the juvenile court, the argument is forfeited. (Ward v. Taggart (1959) 51 Cal.2d 736, 742.)
The juvenile court made a statutorily required finding to support its order removing Damien from his mother’s home. (§ 726.) The court’s finding that continuance in the mother’s custody was contrary to Damien’s welfare is supported by substantial evidence. (See In re John S. (1978) 83 Cal.App.3d 285, 293-294 [findings underlying disposition order reviewed for substantial evidence].) Damien had been placed his mother’s custody throughout his wardship. Damien’s continued delinquent behavior supported the court’s determination that he needed more intensive supervision. His mother reported difficulty controlling Damien’s behavior and that he left home without permission after she attempted to impose restrictions on him. Damien appeared to be coming under the influence of a gang, which competed with his mother’s authority over him, and the court believed Damien would be free from gang influences at Fouts.
The juvenile court found that reasonable efforts had been made to make it possible for Damien to return home. Damien argues this finding was not supported by substantial evidence because he received insufficient services during his home placement. He does not cite any legal authority requiring a reasonable efforts finding before removal. Section 727.2, subdivision (e) mandates a reasonable efforts finding, but that section applies to status review hearings for wards who have been placed in foster care. (§ 727.2, subd. (e)(2).) Without citation to authority, the reasonable efforts argument is forfeited. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116.) Were the juvenile court required to find reasonable efforts in this case, we would have no difficulty in affirming the finding as supported by substantial evidence, as discussed previously.
Disposition
The disposition order is affirmed.
We concur. JONES, P.J., NEEDHAM, J.