Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. J118461
STEIN, J.
In this proceeding initiated under Welfare and Institutions Code section 602, G. B., appeals dispositional orders entered July 20, 2007, by the Alameda County Superior Court, Juvenile Division. He challenges in particular his commitment to the California Youth Authority—now the Division of Juvenile Facilities (DJF). (See Gov. Code, § 12838.3.) As discussed below, we affirm, finding no abuse of discretion in the juvenile court’s commitment order.
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Background
On September 15, 2000, an officer of the Oakland Police Department (OPD) arrested the minor for residential burglary. (Pen. Code, § 459.) The minor had only recently passed his 10th birthday. The arresting officer was initially reluctant to handcuff such a young child, but did so after the minor made a grab for his weapon. The minor was later released to the custody of relatives. On the basis of these events, the district attorney filed a petition under section 602 in January 2001, which charged the minor with a felony violation of Penal Code section 148, subdivision (d) (attempt to take a firearm from a peace officer), and a misdemeanor violation of Penal Code section 602.5 (residential trespass).
At the initial hearing in February 2001, the juvenile court issued a bench warrant after the minor failed to appear. Police arrested the minor on this warrant almost six months later, in late June. At the subsequent detention hearing, held July 3, 2001, the juvenile court continued the jurisdictional hearing, released the minor to home supervision, and directed the preparation of a joint report by the county’s probation office (PO) and social services agency (Agency), to address whether the court should seek to establish the minor as a dependent rather than as a ward of the court. (See § 241.1, subd. (a).) Meanwhile, the district attorney’s office filed an amendment to the petition, adding a third count that charged the minor with a felony violation of Penal Code section 459 (residential burglary) allegedly committed on May 26.
On August 7, 2001, the juvenile court again continued the jurisdictional hearing, placing the minor on informal probation. (See § 654.2, subd. (a).) The minor did not perform well during this probationary period. His conduct led the district attorney to file further amendments to the petition, which added three separate felony violations of Penal Code section 459 (residential burglary) alleged to have occurred on July 31, August 19, and November 2, 2001, respectively.
The joint report by the PO and the Agency concluded the minor, because of his age, would best be served by a placement within the “300 system”—that is, a placement made by the Agency pursuant to dependency jurisdiction established under section 300. On November 14, 2001, the juvenile court authorized the PO to release the minor to the Agency’s custody pending initiation of a dependency proceeding. Two days later, the Agency placed the minor with Burrell Place Group Home in San Francisco.
The Agency filed a petition under section 300 on November 20, 2001. The juvenile court established the minor as a dependent in January 2002 and some two months later formally approved the minor’s placement at Burrell Place. During this placement the minor reportedly made “some progress [but] continued to involve himself in criminal behavior such as stealing from the group home, other residents, and at school.” The minor left Burrell Place without permission on September 9, 2002, and, after being absent without leave for over two months, was arrested on a bench warrant by OPD. Following this unsuccessful dependency placement, the PO and the Agency concluded the minor’s needs might better be met by establishing delinquency jurisdiction. They thus jointly recommended that the juvenile court proceed with the continued jurisdictional hearing on the original, oft-amended section 602 petition.
The juvenile court held the jurisdictional hearing on December 5, 2002, and on that date established the minor as a ward of the court. On motion of the district attorney, the court dismissed the first four counts of the amended petition, although as to these counts it reserved consideration of the underlying facts for purposes of restitution and other dispositional issues. With respect to the remaining two counts—the more recent allegations of residential burglary—the minor admitted to the lesser included offense of felony grand theft, and the court accordingly found true two felony violations of Penal Code section 487, subdivision (a). The court deferred its disposition pending efforts by the PO to place the minor in a residential treatment program that included an on-site school. On January 24, 2003, the PO placed the minor with the Trinity-Ukiah group home in Mendocino County.
The juvenile court ordered an evaluation from the county’s Guidance Clinic at the time of the jurisdictional hearing on December 5, 2002. This evaluation, filed later that month, recommended placement in a residential treatment program to address issues concerning depression, posttraumatic stress, and family dysfunction. The evaluators also recommended a program that included an on-site school to ensure effective communication between the minor’s teachers and clinicians.
The minor left Trinity-Ukiah without leave on January 27, 2003, three days after his arrival. The PO accordingly filed a supplemental petition on February 11, alleging the minor was AWOL from the placement in violation of court order. (See § 777, subd. (a).) The minor remained AWOL for over two months before his arrest by OPD on April 2 for suspected assault and vehicle theft. A subsequent section 602 petition, filed by the PO two days later, charged the minor with a felony violation of Penal Code section 215 (carjacking). At a jurisdictional hearing on April 14, the juvenile court dismissed the carjacking allegation on motion of the district attorney, and by the minor’s admission found true a lesser charge that he had resisted arrest. (Pen. Code, § 148, subd. (a)). At that time the court also found true the allegation under section 777 regarding the minor’s violation of court order.
In a placement review report signed June 4, 2003, the PO stated that, because the minor had performed poorly on probation, it had reservations about the minor’s ability to abide by the existing probationary terms. However, given the minor’s age (12 years at that time) the PO was “willing to give [the minor] a chance to remain in the home,” and recommended that the juvenile court release the minor on home supervision subject to electronic monitoring. The court adopted this recommendation at a dispositional hearing held on June 9, and the PO released the minor on electronic monitoring on June 14.
Three days later, the minor cut the electronic monitor and left home. On June 19, 2003, the PO filed another supplemental petition under section 777, subdivision (a), alleging the minor had thereby violated the court’s probationary order. Less than two months later, OPD arrested the minor, and the PO filed a subsequent section 602 petition charging him with another felony violation of Penal Code section 459 (residential burglary). An arresting officer’s report noted the minor had exhibited violent behavior following his arrest for this offense. The minor allegedly tried to kick out the windows of a patrol car and told the officer that “[i]f I had a gun, I would shoot you in the fucking head.” The juvenile court, at the jurisdictional hearing held on September 3, found true by admission the felony violation of Penal Code section 459, and on motion of the district attorney dismissed the supplemental section 777 petition.
The PO subsequently recommended placement in an out-of-home program, and the court continued the minor in detention at the county’s juvenile hall pending such placement. Several months later, on January 16, 2004, the PO placed the minor with the Unity Care group home in San Jose, Santa Clara County, and the court approved the placement four days later.
A PO status report signed April 20, 2004, stated the minor’s performance at Unity Care had been “marginal” but was “improving.” The minor left the home, however, on May 23. Although he was allowed to return four days later, the minor left again on May 30. Thus the PO filed a supplemental petition under section 777, subdivision (a), on June 8, alleging the minor had once again violated a court order.
One month later, on July 8, 2004, an OPD police officer arrested the minor after noticing a bag of suspected marijuana protruding from one of the minor’s pockets. The PO filed a subsequent section 602 petition several days later, which alleged a felony violation of Health and Safety Code section 11359 (possession of marijuana for sale), and also charged the minor with a misdemeanor violation of Health and Safety Code section 11357, subdivision (b) (possession of marijuana). At a jurisdictional hearing held on July 13, the juvenile court found true by admission the allegation under section 777, as well as the misdemeanor violation of Health and Safety Code section 11357, subdivision (b). On motion of the district attorney, the court dismissed the count charging a felony violation of Health and Safety Code section 11359.
In a dispositional report signed July 20, 2004, the PO recommended “not a local but somewhat remote” out-of-home placement. It noted the minor “was very receptive to the idea of going to another group home,” as he was “beginning to realize that any further wrongdoing in the community could result in a . . . [DJF] commitment.” The PO eventually placed the minor with the Trinity-Sacramento group home in Sacramento County. On August 23, as a PO officer was transporting the minor to this placement, the minor grabbed the steering wheel of the vehicle, causing the officer to lose control. After the driver pulled over, the minor escaped by running across eight lanes of interstate freeway.
As a result of this incident, the PO filed another supplemental petition under section 777. The PO also filed a new subsequent petition under section 602, which set out three counts: a felony violation of Welfare and Institutions Code section 871, subdivision (b) (escape by force); a felony violation of Penal Code section 245, subdivision (a)(1) (vehicular assault); and a felony violation of Penal Code section 422 (threatening to commit a crime involving great bodily injury or death). OPD arrested the minor on September 29, 2004, pursuant to a warrant. At the jurisdictional hearing on the petitions, held November 16, 2004, the juvenile court, on motion of the district attorney, dismissed the supplemental section 777 petition and also dismissed counts two and three of the section 602 petition. It found true by the minor’s admission the felony violation of Welfare and Institutions Code section 871, subdivision (b).
Following these findings, the PO recommended an out-of-home placement with an on-site school “in a remote area.” The PO noted that such a placement had already proved unsuccessful. But “due to the minor’s young age” (14 years at that time), it was not yet willing to recommend a commitment to DJF. The PO advised, however, that the court “should [make it] clear . . . that the minor is not far away” from such a commitment. The PO placed the minor in a Rites of Passage (ROP) facility in Lyon County, Nevada, on March 17, 2005, and the juvenile court approved this placement on April 4.
The ROP facility returned the minor to the PO’s custody in November 2005, reporting that he had made “very little progress” after seven months. He had moreover begun to exhibit “bizarre” behaviors and had spoken of wanting to hurt himself. The following month, the PO placed the minor in the Upright Treatment Center in Oakland (UTC). The minor successfully completed a 90-day program at UTC in late February 2006. Consequently, the PO sought an ex parte order granting the minor an “extended trial visit” at home, where he would receive services through the PO’s Family Preservation Unit. The juvenile court granted this request on February 27.
Little more than one week after his return home, the minor was arrested by OPD in connection with suspected drug dealing. A subsequent section 602 petition filed March 13, 2006, charged the minor with two felony violations of Health and Safety Code sections 11360, subdivision (a) (sale or furnishing of marijuana) and 11359 (possession of marijuana for sale), respectively. At the jurisdictional hearing on this petition, held the next day, the juvenile court found true, by the minor’s admission, the felony violation of Health and Safety Code section 11360, subdivision (a). The court dismissed the remaining charge on motion of the district attorney.
Although the PO considered recommending a DJF commitment at this point, it did not do so, as the drug offense the juvenile court had found true was not “heinous” in nature. Instead the PO recommended another remote placement in a program with an on-site school and “tight structure.” One such facility, the Fresno Unity group home in Fresno County, accepted the minor in early April 2006. The PO advised the minor at this time that this was likely his “last chance” to complete a group home placement and return home—if he failed he would likely face commitment to the DJF. The minor was placed at the Fresno Unity home on April 26.
The minor’s “forward progress” at Fresno Unity was short lived. He had a physical altercation with a peer in June 2006 and exhibited multiple behavior problems. Fresno police arrested the minor for a suspected strong-arm robbery on June 28. On July 3, 2006, the Fresno County district attorney filed a section 602 petition charging the minor with two counts: a felony violation of Penal Code sections 211 and 664 (attempted robbery) and a misdemeanor violation of Penal Code section 148, subdivision (a)(1) (resisting arrest). The minor subsequently admitted count two—the misdemeanor charge of resisting arrest—and as to count one admitted a lesser included offense of misdemeanor attempted grand theft. (Pen. Code, §§ 487, subd. (c); 664.) On July 25, the Fresno County juvenile court found the admitted offenses to be true, and directed that the minor be transferred to Alameda County for disposition.
On August 3, 2006, the Alameda County juvenile court accepted the transfer and set the matter for disposition. In a dispositional report signed August 15, 2006, the PO noted the minor was aware that a commitment to DJF was possible, had stated he “would have difficulty ‘doing his time’ ” in such a commitment, and had requested that he be given another opportunity to complete a group home placement. The minor was, however, unable to provide the PO with any reason why the juvenile court should grant him another such opportunity. Based on the minor’s previous record and his inability to change his “criminal mindset,” the PO recommended a DJF commitment.
The minor’s maximum period of confinement (see § 726, subd. (c)) had increased steadily during this delinquency proceeding, as the juvenile court made true findings as to more and more offenses. At this point the court determined the maximum period to be 10 years four months.
On August 17, 2006, the juvenile court continued its disposition pending an evaluation from the Regional Center of the East Bay (RCEB), a nonprofit organization providing services for individuals with developmental disabilities. Later, in December 2006, the PO reported that the RCEB had completed a psychological evaluation suggesting that the minor would not be eligible for its services, and had referred the minor’s case to an assessment team for further review. At this time the PO requested that the court order an evaluation from the county’s Guidance Clinic, to determine whether a DJF commitment would be appropriate for the minor. Subsequently, in late February 2007, the PO informed the court that the RCEB, after further review, had concluded the minor did not have a significant handicap based on developmental disability and hence was not eligible for its services. The PO reiterated its recommendation of a DJF commitment.
The RCEB evaluation attached to the PO report described the minor as having “borderline intellectual functioning,” and suggested he needed further evaluation in order to “r/o” (rule out) diagnoses of posttraumatic stress disorder and schizoaffective disorder. The report concluded by recommending a “psychiatric evaluation for proper diagnosis and symptom management,” “mental health services in the form of individual psychotherapy to help [the minor] process the violence and likely neglect he experienced as a child,” “remedial education in a small, structured setting,” and education in “independent learning skills.”
The PO included in its report the letter from the RCEB assessment team, dated February 15, 2007. The team reported that the minor did not have a significant developmental disability. It confirmed the minor’s diagnosis of borderline intellectual functioning and confirmed, by review of the minor’s history, diagnoses of posttraumatic stress disorder and depressive disorder. The team ruled out a diagnosis of schizoaffective disorder. After concluding the minor was not eligible for RCEB services, the team restated the RCEB recommendations as follows: “[C]omprehensive mental health services including psychotherapy, medication management and overall mental health case management; wrap-around educational services and transition planning.”
According to the PO, “staff at the [UTC] contacted the minor in custody” while the disposition was still pending, and thereafter “convinced the [juvenile] court to give the minor a second chance in their program.” Thus, on March 8, 2007, the court approved the minor’s release from juvenile hall for a “trial visit” at UTC, and the minor began that visit on March 21.
A little over two weeks later, on April 6, 2007, the PO returned the minor to detention in juvenile hall following his arrest by OPD on that date. A section 602 petition filed three days later charged the minor with a single felony violation of Penal Code section 211 (robbery).
At the jurisdictional hearing on April 30, 2007, the victim, a 15-year old student at Oakland Technical High School, testified that the minor, in the company of two other young males, had confronted him in one of the school’s bathrooms. The minor “punched [him] in the head” and had then demanded, “What do you have?” After the victim held out the contents of his pockets, the minor took the money from the victim’s wallet and he and his companions left. At the conclusion of the hearing the juvenile court found the felony violation of Penal Code section 211 to be true.
The PO resumed its recommendation of a commitment to DJF in its dispositional report signed May 8, 2007. At the dispositional hearing on May 15, the juvenile court ordered the Guidance Clinic evaluation that the PO had requested the preceding December. Specifically, the court requested that the Guidance Clinic review the RCEB reports to determine whether any information in those reports would preclude a DJF commitment.
At a continued dispositional hearing on June 20, the court noted for the record that it had received a memorandum from Guidance Clinic dated June 4, in which the clinic had concluded that the information reported by the RCEB did not preclude a DJF commitment. On July 20, at the conclusion of the hearing, the court committed the minor to the DJF after making the necessary finding for such a commitment—that the minor’s “mental and physical condition and qualifications are such as to render it probable that he will be benefited by the reformatory educational discipline or other treatment provided by the [DJF].” (See § 734.) The court set the maximum period of confinement at seven years. (Cf. fn. 3, ante.) This appeal followed. (§ 800, subd. (a).)
Discussion
The minor contends the juvenile court abused its discretion in committing him to the DJF. He claims there was not sufficient evidence to support the court’s finding under section 734, that it was probable he would be benefited by the commitment. The minor essentially argues that the court, in making the DJF commitment, failed to give due consideration to his need for special rehabilitative services—as indicated not only by his family history of violence and neglect but also by the mental health and educational recommendations set out in the RCEB evaluation—and that it also failed to give due consideration to the evidence of DJF conditions which indicated a commitment would be detrimental to him, as well as to the absence of any evidence showing that the DJF could provide the recommended mental health and educational services. The minor urges that the court instead relied primarily, and unduly, on consideration of the need to protect the public. He suggests such reliance was improper to the extent that “only a very few of [his] sustained offenses had been perpetrated with anything more than minor violence.” He suggests further that the court’s comments at the time of its ruling appear to disclose its application of an improper adult standard of punishment—that is, its comments showed an intent to make the minor “suffer the consequences” of his failure to follow prior court orders.
See footnotes 4 and 5, ante.
The juvenile court’s decision to commit a minor to the DJF will be reversed only when an abuse of discretion is shown. (In re George M. (1993) 14 Cal.App.4th 376, 379.) When findings are challenged, we examine the record to determine whether they are supported by substantial evidence, indulging all reasonable inferences to support the lower court’s decision. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1330.)
The juvenile court did not fail to give due consideration to the minor’s special mental health and educational needs. In our view it went to some length to ensure that these needs did not preclude a DJF commitment. The court ultimately found the minor to be “an individual with exceptional needs,” a finding designed to insure that the DJF receives the information necessary for it to address particularized educational needs. (See § 1742.) The court also explicitly recognized that the minor had “significant mental health issues,” but concluded that these did not preclude the DJF placement. That conclusion was by no means unreasonable. The court requested that the Guidance Clinic review the RCEB information, including its mental health recommendations, to determine whether they precluded a DJF commitment, and the clinic informed the court that it did not. The RCEB recommendations were, moreover, not made or adopted by the PO, but were offered incidentally by RCEB in connection with its determination that the minor did not have developmental disabilities entitling him to its services.
We note, moreover, that the PO’s dispositional reports admitted into evidence included information provided by the DJF screening unit, to the effect that the minor was “appropriate for rehabilitation” at the DJF, and that while there would be required to participate in anger management and substance abuse programs as well as victim impact classes. The minor’s history, summarized above, included incidents of violence directed at arresting officers, group home peers, and crime victims. It included as well both drug-related offenses and many theft-related offenses resulting in loss to the minor’s victims. As such it may reasonably be inferred that the minor would probably benefit from completion of the particular programs the DJF would require of him. On the other hand, the DJF conditions to which the minor adverts did not preclude the court’s finding of probable benefit. During the dispositional hearing the minor’s trial counsel read into the record portions of a newspaper article critical of DJF conditions. That article did not, however, relate specifically to the minor’s case. The record, moreover, shows that counsel read the portions in connection with his argument for a less restrictive placement. It does not show that the article was ever offered or received into evidence.
We refer finally to the nature of the minor’s latest offense, as well as his prior performance, which we have summarized above in some detail. The circumstances of the minor’s most recent sustained offense, a robbery, included the minor’s violent assault upon a young victim. It is also unquestionable that, by the time of the dispositional hearing, the minor had been the subject of delinquency proceedings for well over six years and during that time had repeatedly and emphatically failed home supervision, informal probation, and out-of-home placements less restrictive than a DJF commitment. His only success was his completion of a 90-day out-of-home program at UTC, a success he was unable to repeat after UTC persuaded the court to give him a second chance there. It is evident from the court’s comments that it did not order the DJF commitment simply to punish the minor. Rather, it took into account the fact that his latest offense was “unacceptable,” as well as the fact of his past performance, which indicated that he “really need[ed the] kind of structure” that a DJF commitment would provide in order to achieve rehabilitation.
It is true the juvenile court was required to consider the best interests of the minor as provided in section 734. But it was also necessary that it consider the safety and protection of the public, as well as the goal of holding the minor accountable for his or her behavior. (See § 202, subds. (a) & (b); In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684 (Jimmy P.).) Thus the factors to be considered by the court in making its disposition included the circumstances and gravity of the latest offense and the minor’s previous delinquent history. (§ 725.5.) When deciding whether a DJF commitment was an appropriate level of physical confinement, it was especially important for the court to consider the minor’s past behavior and performance while a ward of the court. (See Jimmy P., at pp. 1684-1685.)
We conclude the juvenile court acted well within its discretion when it committed the minor to the DJF, and we also find substantial evidence in the record to support its finding pursuant to section 734, that it was “probable” the minor would benefit from the DJF’s “reformatory educational discipline or other treatment.”
Disposition
The dispositional orders of July 20, 2007, are affirmed.
We concur: MARCHIANO, P. J., MARGULIES, J.