Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J06-01209
Kline, P.J.
J.C. (appellant) appeals after the juvenile court sustained an allegation of assault with a firearm in a juvenile wardship petition (Welf. & Inst. Code, § 602) and committed him to the Department of Juvenile Justice (DJJ) (formerly the California Youth Authority). On appeal, he contends the court abused its discretion when it committed him to DJJ because there is insufficient evidence of probable benefit to him from the commitment. We shall affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL BACKGROUND
On September 29, 2005, an original juvenile wardship petition was filed in Sacramento County Juvenile Court, pursuant to section 602, alleging that appellant had given false information to a police officer. (Pen. Code, § 148.9, subd. (a).) On October 6, 2005, appellant was declared a ward of the court and placed on probation.
On October 26, 2005, an original section 602 petition was filed in Contra Costa County Juvenile Court, alleging that appellant had possessed marijuana for sale (Health & Saf. Code, § 11359); resisted arrest (Pen. Code, § 148, subd. (a)(1)); and falsely represented his identity to a police officer (Pen. Code, § 148.9, subd. (a)). On January 23, 2006, appellant admitted possessing marijuana for sale; the court dismissed the other two counts and the matter was transferred to Sacramento County (where appellant’s father lived) for consideration of deferred entry of judgment (DEJ). Appellant was then placed on probation in Sacramento County, with orders to participate in drug counseling and complete 36 hours of community service.
On May 22, 2006, the Sacramento County Probation Department filed a probation violation notice and a section 793 motion to lift the DEJ deferral with the juvenile court, alleging that appellant had been absent from home overnight and for more than 48 hours, had been truant, and had failed to serve his community services hours. The Sacramento County Juvenile Court issued a bench warrant for appellant’s arrest.
On June 27, 2006, an original petition was filed in Contra Costa County Juvenile Court, alleging that appellant had committed assault with a firearm. (Pen. Code, § 245, subd. (a)(2).) It was further alleged that appellant had personally used a handgun during the commission of the assault. (Pen. Code, § 12022.5, subd. (a)(1).) On August 18, 2006, appellant pleaded no contest to the assault allegation.
On September 1, 2006, the court ordered appellant transported to Sacramento County to appear on the bench warrant. At the September 20, 2006 section 793 hearing, appellant admitted he had violated the DEJ by being away from home overnight without permission, and the court sustained the possession-for-sale count from the October 26, 2005 petition.
On October 24, 2006, the Contra Costa County Juvenile Court accepted transfer of the case from Sacramento County and, following a contested dispositional hearing, committed appellant, who was then 16 years old, to DJJ, for a maximum term of 14 years 10 months.
On November 20, 2006, appellant filed a notice of appeal.
These facts are taken from the probation report and revised probation report in this matter.
October 26, 2005 Petition
On July 15, 2005, police observed appellant participating in a hand-to-hand drug transaction. After he was detained, appellant “took off,” and was located a short time later at a girlfriend’s apartment. Officers found 12 baggies of marijuana and $414 in cash in the bedroom of the apartment. Appellant subsequently admitted he had both been selling marijuana and smoking it himself. At the time of his arrest, appellant gave police a false name.
June 27, 2006 Petition
“[O]n June 22, 2006, at about 2:24 p.m., victim Gerald T[.], 17, was waiting for a bus [on] Leland Road, across from Los Medanos College [in Pittsburg]. He saw the minor, who was driving a red, older model Oldsmobile, drive by, slowing and staring at [victim T.] as he passed. He said the minor stopped the car, got out, took a small black handgun from his rear waistband and began walking toward him.
“Victim T[.] said that when he saw the handgun he started running across Leland Road, toward the college. He heard four gunshots and looked over his shoulder at the minor, who was holding a handgun in his left hand. The victim said he knew the minor was shooting at him because he was running near a chain link fence and could hear the bullets ricocheting off the metal. The minor then drove past him shouting, ‘I’m gonna kill you nigga!’ T[.] ran to his nearby home and called the police.
“T[.] was asked if he knew the minor and if so, why would [the minor] want to try to kill him. T[.] explained that sometime during the summer of 2005, he and his friend, Brandon, and the minor were ‘hanging out’ at Brandon’s house when the minor disrespected Brandon’s mother by spitting on her. Brandon had responded by beating up the minor and taking his money. T[.] said he had tried to stop the fight but it was too late. He said he and Brandon had left the area, and he had not seen the minor since then, believing he may have moved to Sacramento.
“T[.] took the police officers to the scene of the shooting, where four brass shell casings were located on the ground. T[.] subsequently positively identified the minor in a photo lineup.
“The following day, at about 12:35 p.m., the minor, driving a red 1986 Oldsmobile, was stopped and arrested. A black semi-automatic 9mm handgun containing a loaded magazine with ten 9mm bullets was located under the right front passenger seat, as was a green purse containing another loaded magazine with seven 9mm bullets.
“The minor was subsequently interviewed at the Pittsburg Police Department and made a variety of conflicting statements, variously claiming he had not been in Pittsburg at all the previous day, that he had just bought the Oldsmobile from ‘a guy who had dreds’ and asserting that the handgun belonged to his passenger, Allison B[.]
“The minor then acknowledged he had had an encounter with T[.] and ‘Brandon S[.],’ who had beat him up and taken his money in July 2005, although he said he had not seen T[.] since then. . . . [H]e said he had run into T[.] at the mall on June 22, the morning of the instant offense. T[.] had brandished a .22 caliber pistol at him and shot at his car, so he decided to drive to the area where T[.] lived.
“The minor said he was driving near T[.’s] apartment building when T[.] fired ten shots at his vehicle, although none of them hit him or the car. The minor said that a short time later, he was driving to Antioch to buy some weed when he saw the victim sitting near a bus stop and decided to confront him. He admitted he drew his pistol and shot three times at T[.], but insisted he was not trying to kill him, that he just wanted to scare him. ‘I could a killed the nigga if I wanted to when I walked up on him,’ maintaining he allowed T[.] to get across the street before he started shooting. The minor also stated that later, when he drove past T[.], T[.] shot at him several times. The minor said he then drove to the Motel 6 where he spent the night. He maintained this was the first time he had ever shot the handgun, which he had obtained from his ‘cousin’ who had ordered it in the mail from Florida.
“The minor concluded that he felt shooting at T[.] was ‘necessary’ because T[.] had left messages on his cell phone threatening to kill him.”
DISCUSSION
Appellant contends the court abused its discretion when it committed him to DJJ because there is insufficient evidence of probable benefit to him from the commitment.
I. Juvenile Court Background
In her revised report, probation officer, Marilyn Hogg, reported that appellant had been accepted to two programs, Karis House in Fresno and the remote Fouts Springs Ranch (Fouts). The probation department opposed placement at Karis House due to its community setting. In addition, “[w]e gave some consideration to a recommendation for placement in a remote, ranch-type of program; however, we have concluded that for the protection of the community, as well as for the punishment and rehabilitation of the minor, he needs to be placed in a highly structured, closely supervised, and secure environment. These criteria can only be met by the California Youth Authority [now DJJ].” In her original report, Hogg had reported that, at DJJ, appellant “would be enrolled in school and expected to earn his high school diploma. He would be required to participate in substance abuse and anger management counseling, as well as counseling to address the impact of crime on victims.”
At the dispositional hearing, probation officer Hogg testified that, although Fouts is in a remote location, it is not a locked facility and nine minors had escaped from the program in the past year. Hogg acknowledged that she was aware that there had been past problems at DJJ related to deficiencies in education and mental health services. However, she was not aware of the current conditions there.
Dayle Carlson, a former probation officer who is now in private practice as a sentencing consultant, testified for the defense regarding what he believed was the appropriate disposition for appellant. He had interviewed appellant regarding the assault offense, at which time appellant ultimately admitted that Gerald T. had not shot at him. Instead, appellant said he saw Gerald T. on the street, went to obtain a handgun, returned to the area, and shot at Gerald T. to scare him. Appellant was adamant that he was not trying to hit Gerald T. with the bullets, although Carlson believed appellant did in fact shoot at the victim. Carlson had also reviewed the various probation reports from Contra Costa County and Sacramento County.
When asked for his conclusion regarding placement, Carlson said it was not an easy conclusion and acknowledged that the two issues were rehabilitation of appellant and public safety, “and that’s a difficult balance to achieve here because what he did was extraordinarily dangerous.” Carlson concluded, however, that, “[o]n balance, I think that the ultimate rehabilitation of this minor would be ultimately in the best interest of the community, and that’s the reason that I recommend that he be placed at Fouts.” Although there was some risk in sending appellant to Fouts, Carlson believed “that it’s an acceptable risk.”
Carlson believed that the likelihood of rehabilitation was far greater at Fouts than at DJJ. DJJ had many problems, including “excessive violence ward on ward, excessive violence ward on staff, excessive use of force by staff,” and problems with the educational program, including a 40 to 45 percent vacancy rate for teachers. While DJJ now had a plan to remediate its problems, the plan had not yet been implemented, other than some training for staff. Appellant would be in the mainstream education program, which means he would get anger management counseling, but little else.
At the hearing, the juvenile court denied appellant’s request to take judicial notice of various reports prepared by a special master and DJJ in accordance with a consent degree related to litigation in Farrell v. Hickman (Super. Ct. Alameda County, 2003, No. RG03079344). However, the court did indicate it had read the documents. Appellant does not challenge the juvenile court’s ruling on appeal.
Fouts, on the other hand, was a small program with an accredited high school, treatment based on behavior modification, and a more stable, rehabilitation-oriented program. Fouts was located nine miles from a small hamlet with a population of 75 or 80 people. There had been a number of escapes from Fouts, but all but one resident were quickly found and returned to the program. Fouts had the ability to lock a child up briefly if necessary, although the lockup was generally used in preparation for transferring minors back to a more secure facility. The percentage of minors from Fouts who had successfully completed juvenile probation was 65 to 70 percent. At DJJ, on the other hand, over 70 percent were returned due to parole violations.
Carlson believed appellant could be successful at Fouts because he had a history of conforming in a structured environment, he seemed to be reasonably intelligent, and his serious delinquent behavior had started fairly recently. Carlson would recommend that appellant be placed at Fouts for a minimum of 12 months, given that he had “fundamentally been feral, . . . without supervision” for the last year and a half or longer.
At the conclusion of the dispositional hearing, the court indicated it had read and considered appellant’s entire file, the report and documents submitted, and the testimony of Carlson and Hogg. The court then stated it was going to follow the probation department’s recommendation and commit appellant to DJJ, explaining its decision as follows: “The assault with a firearm, the story that [appellant] gives that he was not trying to hit the victim, he was merely trying to scare him, is completely implausible because there’s no evidence he’s a gunfighter, he knows exactly how to shoot behind someone once they run down a chain link fence, . . . clearly he was aiming at the victim as the bullets were pinging off the fence.
“He went and got the gun and did it intentionally to shoot at this fellow who had bothered him a year before, you know, the epitome of dangerousness.
“[Appellant] is already criminally sophisticated, unfortunately. He changed his story numerous times with the offense. I’m very concerned that he would run if he were placed at Fouts because he didn’t stay in Sacramento, and he was basically on the run at the time of the offense.
“He’s done very poorly on probation. Mr. Carlson said I would be taking a risk if I sent him to Fouts, but he thought it was an acceptable risk. And I completely disagree that it’s an acceptable risk to send a young person to an unlocked facility that’s already shown he’s going to go—is capable of getting a gun and firing it at people he doesn’t like.
“I certainly believe [appellant] can change. I believe it’s up to him if he wants to change. And I’m happy that he seems to be showing some remorse at this point in time, that he’s acknowledging that to his mother. That’s a good sign. What he said to Mr. Carlson is much better than what he said originally in the report. So he’s shown some improvement, but it’s just way too big a risk to put him in an unlocked facility where, as I’ve said, I think he could very well run.
“I’ve considered all local, less restrictive programs and forms of custody, and I’m fully satisfied that they are inappropriate for disposition at this time and that the minor can better benefit from the various programs provided by the Department of the Youth Authority.
“And I will say I would be making only a general placement order if I sent him to a ranch. If something happened and he sprained an ankle or something and he couldn’t do ranch placement, he would come back. I can’t mandate that he stays at a certain program. It would be a general placement order.
“I can mandate that he goes to the Youth Authority and stays in a locked facility.” The court therefore committed appellant to DJJ for the maximum term of 14 years 10 months.
II. Legal Analysis
We review the juvenile court’s commitment decision for an abuse of discretion and will indulge all reasonable inferences in favor of the court’s decision. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396; In re Asean D. (1993) 14 Cal.App.4th 467, 473.) “Nonetheless, 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. [Citations.]” (In re Angela M., at p. 1396.)
Before 1984, California courts held that the purpose of juvenile law was rehabilitation and treatment, not punishment. (See, e.g., In re Aline D. (1975) 14 Cal.3d 557, 567.) However, 1984 amendments to juvenile court law reflected an increased emphasis on punishment as a tool of rehabilitation, as well as a concern for safety of the public. (In re Asean D., supra, 14 Cal.App.4th at p. 473; § 202.) Still, a commitment to DJJ may not be based on retribution grounds. (§ 202, subd. (e)(5).)
In the present case, the juvenile court was justifiably troubled about sending appellant to Fouts, an unlocked facility, in light of the assault offense he had committed, which the court described as “the epitome of dangerousness.” The court was concerned that appellant might run away if placed at Fouts, since he had not stayed in Sacramento, where he was on probation, and “was basically on the run at the time of the [assault] offense.” The court also noted that appellant was already criminally sophisticated and that he had done very poorly on probation. The court simply disagreed with Carlson’s conclusion that sending appellant to Fouts would be an acceptable risk, particularly given the disturbing nature of the offense—in which appellant saw the victim a year after a prior incident, went and obtained a gun, then returned and shot repeatedly at the victim—and the danger that appellant would escape from Fouts, an unlocked facility from which nine minors had escaped in the past year.
In addition, in her report, probation officer Hogg noted that appellant would be expected to earn his high school diploma while at DJJ, and would also be required to participate in substance abuse and anger management counseling, as well as counseling to address the impact of crime on victims.
Based on all of the evidence in the record, the juvenile court reasonably found that the protection of society was even more important than appellant’s rehabilitation, and that, therefore, commitment to DJJ was necessary. (See In re Asean D., supra, 14 Cal.App.4th at p. 473.) Moreover, the court’s finding that appellant could benefit from the programs offered at DJJ, which, as the probation officer noted in her report, take place in a highly structured, closely supervised, and secure environment, was also reasonable in these circumstances.
We also observe that even the defense’s witness, Dayle Carlson, acknowledged that he had a hard time reaching a conclusion in this case and that the balance between rehabilitation of appellant and public safety was difficult to achieve, given that what appellant did was “extraordinarily dangerous.”
In conclusion, substantial evidence of probable benefit supports the juvenile court’s order committing appellant to DJJ. (See In re Angela M., supra, 111 Cal.App.4th at p. 1396.) Hence, there was no abuse of discretion. (See ibid.)
DISPOSITION
The juvenile court’s order is affirmed.
We concur: Haerle, J., Lambden, J.