Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. MJ17943 Robin R. Kesler, Juvenile Court Referee.
Laini Millar Melnick, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Jonathan O. (the minor) appeals from an order of the juvenile court committing him to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ), for a 14-year theoretical maximum period of confinement based on firearm-related offenses found true in a Welfare and Institutions Code section 602 petition. The minor contends the juvenile court abused its discretion because (1) the evidence is insufficient to support the juvenile court’s finding of probable benefit from the commitment to the DJJ, and (2) the juvenile court did not sufficiently consider and unreasonably rejected an alternative placement. We affirm.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
The day after Kristopher Johannes’s (Johannes) motorcycle was stolen, he saw two people on the side of a road, who were identified to him as the thieves. Johannes drove up to them as two all-terrain vehicles (ATVs) arrived at the same time. Two youths inside one ATV picked up one of the thieves and drove across the road. Johannes followed and was hit in the arm by gunfire. The minor was arrested on November 26, 2008; he admitted firing three rounds at Johannes, after taking the fully-loaded gun from a bedroom drawer.
Because this case was resolved by negotiated disposition, no jurisdiction hearing was held. The facts of the underlying offenses are therefore discerned from the probation officer’s reports and comments by the juvenile court and both counsel during the disposition hearing.
On December 19, 2008, the People filed an amended section 602 petition alleging, as to count 1, that the minor, then 16 years old, had committed assault with a firearm (Pen. Code, § 245, subd. (a)(2)), with a special allegation he used a firearm to commit the offense (Pen. Code, § 12022.5). As to counts 2 and 3, the petition alleged respectively that the minor had committed possession of a firearm by a minor (Pen. Code, § 12101, subd. (a)(1)), and misdemeanor possession of live ammunition by a minor (Pen. Code, § 12101, subd. (b)(1)). The minor denied the allegations.
The original section 602 petition filed December 2, 2008, was dismissed on the People’s motion.
Due to the nature of the felony offenses alleged, the minor was statutorily presumed not to be a fit and proper subject to be dealt with under the juvenile court law. (§ 707, subds. (b)(1), (13), (17) & (18), (c).) The same day, the People filed a motion for an order declaring the minor unfit so they could try him as an adult. The juvenile court scheduled an Edsel P. hearing, which was to be immediately followed, if necessary, by a fitness hearing. In preparation for the fitness hearing, on February 26, 2009, defense counsel had the juvenile court appoint Dr. Douglas Allen, a psychologist, to evaluate the minor regarding his fitness for treatment under the juvenile court law. (See §§ 707, subd. (c), 730.)
When a minor charged with a crime triggering the presumption of unfitness challenges the sufficiency of the evidence he committed the alleged offenses, Edsel P. v. Superior Court (1985) 165 Cal.App.3d 763 requires the People to make a prima facie showing the minor committed the offenses before a fitness hearing may be held.
After several continuances, the two hearings were set for June 2, 2009. On that date, the People withdrew their motion for a fitness hearing, and in return, the minor admitted all counts and the special allegation. The juvenile court sustained the petition.
The disposition hearing immediately followed. At the outset, the prosecutor indicated that after considering the minor’s minimal record as well as the court-ordered psychologist’s evaluation, he nonetheless was urging the juvenile court to order the minor committed to the DJJ. The prosecutor argued the offenses involved “significant planning” because Johannes was led to a certain location, where he was met by the minor, who was armed. The minor then not only fired the gun, but also wounded the victim in the arm.
The report of Dr. Allen, which the juvenile court expressly considered and reviewed in making its disposition, is not part of the record on appeal.
Defense counsel argued the minor should be ordered into a nine-month camp community placement program, noting the minor had done exceptionally well during his six months in custody at juvenile hall, which had been recently restructured to provide detainees a “camp-like environment.” The minor had maintained a “C” grade average during his stay, and had not been the subject of any disciplinary actions. He also had a supportive family. Counsel referred to Dr. Allen’s report in which the psychologist had opined the minor was fit with respect to all five fitness criteria set forth in section 707, subdivision (c). Counsel argued, in view of these circumstances, a nine-month camp community placement program would be a suitable, less restrictive alternative for the minor, as well as an appropriate disposition in this case. Counsel pointed to the fact the adult codefendants, who had also been in custody for the past six months, had pleaded guilty days earlier and had received probation and credit for time served.
Both defense counsel and the juvenile court referred to a pre-plea report, which is not part of the appellate record, as recommending that the minor be ordered into a nine-month camp community placement program in this case.
The statutory fitness criteria are as follows: “(1) The degree of criminal sophistication exhibited by the minor. [¶] (2) Whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction. [¶] (3) The minor’s previous delinquent history. [¶] (4) Success of previous attempts by the juvenile court to rehabilitate the minor. [¶] (5) The circumstances and gravity of the offenses alleged in the petition to have been committed by the minor.” (§ 707, subd. (c).)
After entertaining arguments by counsel, the juvenile court continued the disposition hearing to June 10, 2009, so it could review Dr. Allen’s report. At the continued hearing, the juvenile court stated what little was known about the minor’s educational background revealed he had been expelled for fighting at school. Otherwise, the minor rarely attended school, which led to poor grades, behavioral problems and a history of minimal contacts with police as a habitual truant. Indeed, at the time of his December 2008 arrest, the minor had not attended school since August 2008. He was also a self-admitted active gang member. As for the circumstances of the offenses, the juvenile court found it significant that the victim had been lured to the area before the minor arrived with a gun, which he fired repeatedly at the victim at close range. But for the minor’s faulty aim, he would have been facing a murder allegation. Of particular concern to the juvenile court was the fact the minor had acted with complete disregard for human life, although he did not seem to have any psychological problems. He was found by Dr. Allen to be of average intelligence, with no obvious learning disabilities, mental conditions or other exceptional needs. The juvenile court concluded a nine-month stay in a camp community placement program, which was the longest period possible, was not enough time for the minor to be sufficiently assessed, treated and rehabilitated. The juvenile court found that the minor’s “mental and physical condition and qualifications [were such as to] render it probable that he will benefit from the reformatory discipline or other treatment provided by the [DJJ].”
DISCUSSION
A. Standard of Review
“The decision of the juvenile court to commit a juvenile offender to [the DJJ] may be reversed on appeal only by a showing that the court abused its discretion. [Citation.] ‘[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered.’ [Citation.]” (In re Carl N. (2008) 160 Cal.App.4th 423, 431-432.) “A decision by the juvenile court to commit a minor to the [DJJ] will not be deemed to constitute an abuse of discretion where the evidence ‘demonstrate[s] probable benefit to the minor from commitment to the [DJJ] and that less restrictive alternatives would be ineffective or inappropriate. [Citation.]’ [Citation.]” (In re Pedro M. (2000) 81 Cal.App.4th 550, 555-556.) “Although the DJJ is normally a placement of last resort, there is no absolute rule that a DJJ commitment cannot be ordered unless less restrictive placements have been attempted. [Citations.]” (In re M.S. (2009) 174 Cal.App.4th 1241, 1250.) Moreover, “[i]n evaluating the [juvenile] court’s exercise of discretion in committing a minor to [the DJJ], we now do so with punishment, public safety, and protection in mind.” (In re Luisa Z. (2000) 78 Cal.App.4th 978, 987-988.)
“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. [Citation.]” (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.) “The term ‘substantial evidence’ means such relevant evidence as a reasonable mind would accept as adequate to support a conclusion; it is evidence which is reasonable in nature, credible, and of solid value. [Citation.]” (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.)
B. The Juvenile Court Did Not Abuse Its Discretion in Committing the Minor to the DJJ
1. Sufficient evidence supports the finding of probable benefit
The minor contends the juvenile court abused its discretion because there was insufficient evidence to support the finding of probable benefit from the commitment to the DJJ. This argument is without merit. The finding of probable benefit is amply supported by the record. Before the juvenile court was a troubled 16-year-old who had no discernable psychological condition, learning disability, substance abuse problem, or mental impairment that would contribute to his delinquency. Yet, the minor had a history of chronic truancy, and when he did attend school he was combative and nonproductive. Although the minor’s earlier involvement with law enforcement had been minimal, he was a self-identified gang member whose current contact with the juvenile court system was the result of a callous and violent criminal act, which also showed planning and sophistication. From this evidence, the juvenile court reasonably determined the minor was in need of long-term rehabilitation, which included comprehensive assessment and treatment programs, in a secure and closely monitored setting. (See In re Jonathan T. (2008) 166 Cal.App.4th 474, 485-486.)
2. A less restrictive alternative placement was sufficiently considered
The juvenile court decided upon a commitment to DJJ after considering and rejecting the nine-month camp community placement program as inadequate to meet the minor’s specific need for protracted treatment. The minor faults the court for rejecting this less restrictive alternative placement without having any information as to the types of treatment and programs available during a longer stay at the DJJ. Nothing in the record suggests the court was unaware of the specific programs provided by the DJJ. In any event, the court in Jonathan T. rejected a similar argument, and we adopt that court’s reasoning in this case. “A juvenile court must determine if the record supports a finding that it is probable the minor will benefit from being committed to DJJ. [Citation.] In the instant case, we infer the juvenile court found it was probable minor would benefit from being committed to DJJ, because it anticipated minor’s needs would be addressed by programs offered at DJJ. There is no requirement that the court find exactly how a minor will benefit from being committed to DJJ. The court is only required to find if it is probable a minor will benefit from being committed, and the court did so in this case.” (In reJonathan T., supra, 166 Cal.App.4th at p. 486.)
In arguing the juvenile court abused its discretion, the minor makes claims, for the first time on appeal, of numerous deficiencies in the DJJ’s remedial programs for its youthful offender population. To support his assertions of specific DJJ inadequacies, the minor relies on the recent reports of a special master in Farrell v. Cate (formerly Farrell v. Allen, Alameda County, No. RG03079344), a taxpayer’s lawsuit against the Director of the California Youth Authority, now the DJJ. However, the minor never mentioned the Farrell litigation at the disposition hearing, or challenged his commitment to the DJJ on the grounds he now advances on appeal. We therefore decline to consider these claims as relating to evidence outside the appellate record (see People v. Barnett (1998) 17 Cal.4th 1044, 1183) and as having been forfeited because they were not presented to the juvenile court (see People v. Redd (2010) 48 Cal.4th 691, 716).
Finally, committing the minor to DJJ was not an abuse of discretion because he posed a potential danger to the community. “The purposes of juvenile wardship proceedings are twofold: to treat and rehabilitate the delinquent minor, and to protect the public from criminal conduct. [Citations.] The preservation of the safety and welfare of a state’s citizenry is foremost among its government’s interests....” (In re Jose C. (2009) 45 Cal.4th 534, 555.) In view of the minor’s gang membership and shooting in this case, the juvenile court reasonably determined the minor and the public would benefit from placing the minor in a locked facility, where he has the opportunity for rehabilitation while the community is protected from further acts of violence he may commit.
DISPOSITION
The disposition order committing the minor to DJJ is affirmed.
We concur: PERLUSS, P. J., ZELON, J.