Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. JU20697
McAdams, J.
Appellant D.H. challenges a juvenile court order in a Welfare and Institutions Code section 602 proceeding in which he was committed to the Division of Juvenile Facilities (DJF) for a maximum term of confinement of six years two months after he admitted committing assault with a deadly weapon, a knife, (Pen. Code, § 245, subd. (a)(1)) and admitted a probation violation. The minor appeals from the disposition order, arguing that the court abused its discretion when it committed him to the DJF. We find no abuse of discretion and affirm.
All further statutory references are to the Welfare and Institutions Code, unless otherwise specified.
The DJF was formerly known as California Youth Authority (CYA). (Welf. & Inst. Code, § 1710, subd. (a).) DJF is a division of the California Department of Corrections and Rehabilitation, Division of Juvenile Justice. (Gov. Code, §§ 12838, sub. (a), 12838.3.) We shall refer to the agency as DJF, but some sources we quote refer to it as CYA.
Factual and Procedural background
To place the DJF commitment in context, we shall describe the minor’s juvenile record and probation history and then discuss the assault with a deadly weapon and juvenile court proceedings that are the subject of this appeal.
Prior Juvenile Offenses
In September 2005, when the minor was 13 years old, he and two others entered a private home through an unlocked door. The minor watched while one of the others removed items from the home. The minor was charged with felony burglary (Pen. Code, § 459) in a section 602 proceeding. The minor was placed on informal probation without adjudging him a ward of the court (§ 654.2). The minor successfully completed his probation and the original petition was dismissed in August 2006 (§ 654.2).
In June 2007, when the minor was 14 years old, he was charged with giving a false name to a police officer (Pen. Code, § 148.9), a misdemeanor. The minor was a passenger in a car that matched the description of a car that had been involved in an armed robbery; the other two people in the car matched the descriptions of the robbery suspects. The minor was given six months probation without wardship.
In January 2008, when the minor was 15 years old, he and several others robbed three victims at gunpoint. Only three of the participants, including the minor, were identified. The witnesses said the minor was the one holding the gun. In addition to the robbery, the assailants punched, kicked and pushed the victims to the ground.
Placement and Performance in Residential Treatment Program
After the robbery, the minor was declared a ward of the court. He was removed from his home and placed in a 36-week long, residential treatment program called Courage to Change (CTC) in Tulare County, California.
Prior to the placement at CTC, the minor resided with his mother and younger sister in Santa Cruz. His father lived in Las Vegas, Nevada. His mother reported that starting in the seventh grade the minor “seemed angry at the world.” She obtained counseling services for him but the counseling did not seem to help. The minor’s mother took him out of school and home-schooled him for part of the seventh and all of the eighth grades. Things seemed to get better; his school work improved and he seemed less stressed. Prior to entering CTC, the minor was enrolled in a charter high school. He was affiliated with a Norteño street gang.
The minor started using marijuana at age 8 and started drinking alcohol at age 10. Before going to CTC, he drank daily and smoked marijuana frequently. His mother knew he experimented with alcohol, but did not know he drank daily. She did not buy alcohol, did not know where the minor got it, and reported that the minor did not show signs of intoxication.
The minor successfully completed the 36-week treatment program at CTC. The report prepared at the time of his graduation in December 2008 stated that the minor had “progressed significantly in the program.” He attended three weekly group therapy sessions in (1) anger management/conflict resolution, (2) substance abuse treatment, and (3) gang prevention. He received individual therapy once a week. He completed the “ ‘Criminality and Substance Abuse’ ” curriculum, obtained a working knowledge of the 12 Step Recovery program, and “developed empathy through victim awareness and didactic redirection.” He mentored others and set a positive example. He was a successful leader and athlete in the facility’s flag football program. He was described as an “excellent student” and was performing at grade level, earning all A’s. However, the facility psychologist, who conducted a psycho-educational evaluation, reported that the minor’s performance was average in mathematics and written language and low average in broad reading and broad knowledge. She opined that grade level tasks in the latter two categories “will be very difficult for him.” The minor completed 109.5 hours of community service. He had a lot of family support and earned passes to go home on several occasions. The minor was released from CTC on December 3, 2008.
Stabbing Incident in January 2009
On January 3, 2009, the minor and his girlfriend met some friends by the railroad tracks in Santa Cruz and drank some rum. Later that evening, the minor, his girlfriend, another girl, a minor male who was identified as P.L., and an unidentified male, decided to meet a friend at a liquor store. On their way to the liquor store, they cut through a supermarket parking lot. In the parking lot, they saw Jorge Diaz-Villalpando and Jesus Ortega-Martinez, who the minor described as “older males, in their twenties.” Martinez was wearing a blue sweatshirt. Blue is the color associated with Sureño street gangs, the Norteños’ rivals.
Diaz-Villalpando’s and Ortega-Martinez’s surnames are hyphenated throughout the record. However, Diaz-Villalpando is also referred to as “Diaz Villalpando” and “Diaz.” For ease of reference, we shall refer to Diaz-Villalpando as “Villalpando” and Ortega-Martinez as “Martinez.”
The minor yelled, “ ‘Northside Santa Cruz. Right here.’ ” The minor and his friends asked the older males, “ ‘Where the fuck are you from?’ ” and what gang they claimed. The minor used the term “scrapa,” a derogatory gang expression. Villalpando responded, “ ‘What the fuck do you think? Do I fucking look like I’m in a fucking gang?’ ” Villalpando and Martinez continued walking toward the supermarket. The minor, P.L., and the unidentified male taunted Villalpando and Martinez and surrounded them as they tried to enter the store.
According to witnesses, the minor asked Martinez if he wanted to fight and threw the first punch. The minor’s girlfriend screamed at them to stop and tried to restrain the minor. When she realized she could not stop the fight, she ran off.
Martinez fell to the ground with the minor. When he got up, the minor’s friends joined in the fight. Villalpando tried to pull one of the attackers off of Martinez and started fighting with P.L. According to the minor, P.L. was getting beaten up “ ‘pretty bad.’ ” When the minor “realized the guy was too big for him to pull off” P.L., he came up from behind and stabbed Villalpando twice in the back. When his probation officer later asked him how he felt after he stabbed Villalpando, the minor “described feeling ‘a rush.’ ” He also said “he was scared, and his heart was beating really fast.” After he stabbed Villalpando, the minor flashed the gang sign “14,” ran, and jumped into a friend’s car.
The victims reported that the minor and his friends were all drunk. Sheriff’s deputies found the minor hiding in a shed at the home of his friend, J.C. The minor appeared to be intoxicated; his speech was slurred and the odor of alcohol emanated from his body. J.C., a probationer, was not involved in the fight. The minor was taken into custody and detained at juvenile hall.
Villalpando was treated by paramedics at the scene and airlifted to Santa Clara Valley Medical Center in San Jose. Doctors there determined that he had no injuries to his internal organs, closed his wounds, and released him that night. Villalpando was out of work for approximately five weeks. The regular ambulance and air ambulance bills alone totaled in excess of $30,000. The amounts incurred for the hospital treatment, medical follow-up, and Villalpando’s wage loss are not in the record.
Procedural History in This Case
On January 5, 2009, the district attorney filed a section 602 petition (602 petition) that charged the minor with one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) on Villalpando and one count of misdemeanor battery (Pen. Code, § 242) on Martinez. The minor denied the allegations of the petition and the court ordered him detained at juvenile hall.
On January 12, 2009, the district attorney amended the 602 petition, adding allegations that the minor had violated the conditions of his probation by failing to obey all laws; by associating with other probationers, including P.L.; by failing to comply with a 10 p.m. curfew; and by possessing a knife. The amended petition also gave notice of intent “to move for an increase in the maximum term of confinement by aggregating the terms of all previously sustained petitions.”
Probation Violation at Juvenile Hall
On February 1, 2009, the minor was involved in a fight at juvenile hall that was provoked by gang tensions. “The minor came from behind, and jumped over an Institutional Supervisor swinging his fists at another minor, who was being restrained on the ground.” He struck the Institutional Supervisor in the head as he tried to attack another minor. The supervisor’s injuries were negligible.
Further Procedural History
In February 2009, the district attorney amended the 602 petition again, adding allegations that the minor had violated his probation by failing to “obey all laws” when he got involved in the fight at juvenile hall.
In March 2009, the minor pleaded no contest to the assault with a deadly weapon on Villalpando. The battery count was dismissed, with the understanding that the court could consider it at disposition. The court found the probation violation allegations true. As permitted by section 726, the court aggregated the terms for the minor’s 2007 offense (giving a false name to a police officer), the 2008 robbery, and the 2009 stabbing and determined that the maximum period of confinement was six years two months.
The court calculated the maximum period of confinement using the maximum sentence on the robbery (five years) as the principal term, plus 2 months (one third the middle term) for giving a false name and one year (one third the middle term) for the stabbing, for a total six years two months.
Probation Report and Recommendation for Disposition
Prior to the disposition hearing, the probation department filed a detailed report setting forth the circumstances of the stabbing; the minor’s juvenile record; the minor’s personal and family history; his health, mental health, and substance abuse histories; and statements by the minor, victim Villalpando, the minor’s parents, the minor’s placement probation officer, and his supervising probation officer. When the probation officer asked the minor what happened to the tools he learned at CTC, the minor said he did not have the same support he had at CTC, where he had mentors, counselors, and therapists working with him. He told the probation officer that he first met P.L. after returning from CTC. The probation report contained information from juvenile hall staff, the juvenile probation placement screening committee, the county juvenile probation management team, an intake officer at the DJF, and Vision Quest, an out-of-state placement site.
Juvenile hall staff reported that the minor was “ ‘very mature for his age’ ” and needed minimal supervision. He tried to get along with most minors, but associated mostly with Norteños. In addition to the fight on February 1, 2009, the minor got into trouble on January 25, 2009, for antagonizing another minor with regard to his gang affiliation and on February 3, 2009, for trying to send a small cross made out of string that was deemed contraband. The minor was going to school, attending Alcoholics Anonymous and Narcotics Anonymous meetings, and going to church.
The minor’s mother wrote a letter to the court stating that if she had the choice, she would send the minor to live with his father or his uncle out of state. She felt the minor needed a father figure in his life, more structure that she was able to give him, and treatment for his alcoholism. She asked the court not to send the minor to the DJF, arguing that 91 percent of wards are not rehabilitated there and that it is “a broken system that needs to change.” She reminded the court of the minor’s success at CTC and asked the court to place him at a ranch facility in Wyoming.
The minor wrote a letter to the court, describing his progress at CTC, expressing regrets for what he had done, and asking the court to send him to “a more structured camp, maybe out of state.”
The probation report recommended that the minor be continued as a ward of the court and committed to the DJF.
Disposition Hearing
At the disposition hearing, the court advised the parties that it had read the probation report and its attachments, reviewed the minor’s letter, and looked at the websites for three out-of-state placements that the minor’s counsel had provided.
Villalpando was present, but declined to make a statement. He had previously told the probation officer that the minor “deserves to go to ‘CYA’ ”; he questioned why the minor was not charged with attempted murder and reported that the minor was the most aggressive of the group.
The minor read a statement to the court. He apologized to his mother and Villalpando. He asked for Villalpando’s forgiveness and promised he was going to change. He asked for a chance to better himself and change his life. He reminded the court how well he had done at CTC and discussed the offerings at two out-of-state programs, Normative in Wyoming and Clarinda Academy in Iowa.
The minor’s counsel argued that when the minor came home from CTC, it was winter break. The minor had no school, no counseling, no support, and no structure. After a month of being on his own, he fell into his old ways with alcohol and hung out with the wrong crowd. The minor’s counsel reminded the court of the minor’s potential, argued that he had never been to a ranch camp, and suggested placement at Normative, Clarinda Academy, or Vision Quest in Arizona.
The district attorney argued that the minor had two section 707, subdivision (b) offenses that qualified him for the DJF, one involving a gun and the other involving “a knife that was used.” He argued that in any other county the minor would have been sent to the DJF after the armed robbery, that this matter could have been filed in adult rather than juvenile court, and that the district attorney gave the minor a break when he decided to file in juvenile court, and that the court should protect the community.
The court ordered the minor committed to the DJF based on the stabbing and the robbery. The court stated, “I think there is the issue that at some point I need to protect the community that you and your family [live] in. And I think that this commitment may be good. It may be bad. It may be that you will come out worse. I hope not. [¶] You have the brains not to. And you have... the desire not to. But you have the inability to control yourself if you drink. And the prior report and this report [indicate] you’re a chronic drinker. You drink daily. You’ve been smoking since you were eight. [¶]... I would have thought you learned previously that you can’t even be near alcohol let alone drink it because, obviously, we know what happens when you drink.”
The court ordered that the minor pay a $100 restitution fine and victim restitution of at least $30,700. The court held that the minor would be jointly and severally liable for victim restitution with P.L. The court denied the minor’s requests to use the mitigated term in setting the maximum period of confinement or to base it solely on the stabbing incident.
Discussion
The minor contends that the juvenile court abused its discretion when it ordered him committed to the DJF. He argues that the DJF commitment was based on the nature of his offenses alone. He contends that the probation report failed to adequately consider alternative placements or investigate the programs that would be made available to the minor at DJF. Consequently, the court was not able to properly exercise its discretion to determine whether the minor would benefit from a commitment to the DJF.
Legal Principles
Under 727, subdivision (a), when a minor is adjudged a ward of the juvenile court under section 602, “the court may make any and all reasonable orders for the care, supervision, custody, maintenance, and support of the minor.” The court has a wide range of options available for placing its wards, including unsupervised probation, supervised probation, placement in a licensed community care facility or foster home (§ 727, subd. (a)); commitment to “a juvenile home, ranch, camp, or forestry camp” or “the county juvenile hall” (§ 730, subd. (a)); or commitment to DJF (§ 731, subd. (a)(4)).
In determining disposition, “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.” (§ 725.5; In re Robert H. (2002) 96 Cal.App.4th 1317, 1330.) The court may also consider the minor’s family’s repeated failure to control the minor’s anti-social or criminal behavior (In re Tyrone O. (1989) 209 Cal.App.3d 145, 153) and public safety and punishment (In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684; § 202, subd. (b)).
“No ward of the juvenile court shall be committed to [DJF] 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 [DJF].” (§ 734.) There must be evidence on the record of substantial benefit to the minor from a DJF commitment. (In re Adrian R. (2000) 85 Cal.App.4th 448, 452.) “The unavailability of suitable alternatives, standing alone, does not justify the commitment of a nondelinquent or marginally delinquent child to an institution primarily designed for the incarceration and discipline of serious offenders.” (In re Aline D. (1975) 14 Cal.3d 557, 567; In re Ricky H. (1981) 30 Cal.3d 176, 182-183.) However, “[n]othing bars [DJF] for section 602 wards who have received no other placement.” (In re Eddie M. (2003) 31 Cal.4th 480, 488.)
Standard of Review
A commitment to DJF is reviewed for abuse of discretion, indulging all reasonable inferences in support of the juvenile court’s decision. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) The record must demonstrate both a probable benefit to the minor and the inappropriateness or ineffectiveness of a less restrictive alternative. (Ibid.) A reviewing court must examine the evidence at the disposition hearing in light of the purposes of the juvenile court law. (In re Michael R. (1977) 73 Cal.App.3d 327, 332-333.) The juvenile court law focuses on (1) the protection and safety of the public, and (2) rehabilitation of the minor through care, treatment and guidance which is consistent with the minor’s best interest, holds him accountable for his behavior, and is appropriate for the circumstances. This may include punishment that is consistent with rehabilitative purposes. (§ 202, subds. (a) & (b); In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684.)
Analysis
The minor argues that the probation report failed to explore the programs that would be available to him at the DJF and that the court was not fully informed of its options and lacked the information necessary to determine whether a DJF commitment was likely to benefit the minor or whether less restrictive alternatives would be more appropriate. We disagree.
The probation report discussed the minor’s previous commitment at CTC and his success there. It included a copy of the minor’s graduation report from CTC, which discussed his performance there in detail. The probation report also contained a statement from the minor’s placement probation officer, who monitored his placement at CTC. He described the changes the minor made at CTC as “remarkable.... He participated fully and excelled in all aspects of the program.”
The probation officer spoke with Minh Nguyen, an intake officer at the Division of Juvenile Justice. Nguyen stated that the minor would be categorized at a level four based on his offense. “[P]arole would be set at two years and jurisdiction would terminate when the minor turns twenty-five.” Nguyen stated that upon intake, a clinician would assess the minor’s treatment needs and develop an individual treatment program that could include victim awareness, decision making, anger management, substance abuse residential treatment and gang intervention services, as well as educational and vocational services. Based on our review of the minor’s history, these are all areas in which the minor needs assistance. The minor’s success on informal probation in 2006 and his success at CTC in 2008 suggest that he is likely to benefit from the programs offered at the DJF. Moreover, the juvenile court noted that he had both the intelligence and the desire to succeed at the DJF.
The minor argues that “[r]ather than seriously explore the possible alternatives for rehabilitation and for the treatment of [his] problems, the probation report recommended a DJF commitment.” We disagree.
The probation officer presented this case to the county’s Juvenile Probation Management Team, at which time alternative placements were discussed. The probation officer spoke with the intake officer at Vision Quest in Arizona, one of the out-of-state placement sites under consideration, and presented him “with a hypothetical scenario” based on the minor’s case. The intake officer at Vision Quest advised probation that this case would not be ruled out based on the charges alone, but stated that they would have to review an intake packet and interview the minor face-to-face before making a decision. At the disposition hearing, the court told the parties that it had reviewed the websites of the three out-of-state facilities under consideration. Thus, the record reflects that alternative programs were considered by the probation department and the court.
Although the minor did well at CTC, he committed a serious offense shortly after his release from that program. Within a month of his release, he was associating with probationers and gang members and abusing alcohol. By the time he was committed to the DJF, he had committed two serious offenses that involved weapons. In the most recent case, he used the weapon to inflict serious injury on Villalpando, who said the minor was the most aggressive in the group. Thus, there was evidence that his criminal conduct was escalating.
The minor’s reliance on In re Devin J. (1984) 155 Cal.App.3d 1096 is misplaced. The probation officer in Devin J. prepared a social study to determine whether the case should be handled in adult court or juvenile court, but failed to prepare a new report for the disposition hearing. The appellate court observed that the purpose and focus of a fitness hearing is drastically different from that of a dispositional hearing and held that the probation department’s failure to prepare a social study for the dispositional hearing required reversal of the juvenile court’s order committing the minor to CYA. (Id. at pp. 1099-1101.) Citing section 202, the court held that use of the same report at both stages of the proceeding was prejudicial to the minor because “[f]rom the information before it the court was unable to exercise its discretion in choosing among alternative treatment facilities to find the least restrictive treatment facility available.” (Id. at p. 1101.) The minor relies on the quoted language from Devin J. and argues that the probation report in this case failed to adequately consider alternative placements. But, as the court explained in In re Michael D. (1987) 188 Cal.App.3d 1392, 1396, “In 1984, the Legislature replaced the provisions of section 202 with new language which emphasized different priorities for the juvenile justice system. [Citation.] The new provisions recognized punishment as a rehabilitative tool. [Citation.] Section 202 also shifted 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’ [citations], where care, treatment, and guidance shall conform to the interests of public safety and protection. (§ 202, subd. (b).) [¶] Thus, it is clear that the Legislature intended to place greater emphasis on punishment for rehabilitative purposes and on a restrictive commitment as a means of protecting the public safety.”
In summary, the record reflects that the court considered the minor’s previous placements and successes, the programs available at the DJF, alternative placements available to the minor, the circumstances and gravity of the minor’s offense, and the need to protect the community before committing the minor to the DJF. In our view, the court did not abuse its discretion when it ordered the DJF commitment in this case.
Disposition
The disposition order is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.