Opinion
H029295
12-15-2006
In re JUAN N., A Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JUAN N., Defendant and Appellant.
Juan N. appeals from an order committing him to the California Youth Authority (CYA). Appellant contends that the juvenile court abused its discretion in committing him to the CYA, because there was insufficient evidence to support the findings that less restrictive alternatives would be ineffective or inappropriate and that he would benefit from a CYA commitment. He also contends that he posed no threat to public safety and that the juvenile court committed him to the CYA to punish him. We find no error and affirm.
I. Factual and Procedural Background
On November 9, 2001, appellant and his companion took laptop computers from a classroom. On November 22, 2001, the district attorney filed a petition under Welfare and Institutions Code section 602, which alleged that appellant, who was then 15 years old, committed two counts of second degree burglary (Pen. Code, § 459), two counts of grand theft (Pen. Code, § 487, subd. (a)), and two counts of receiving stolen property (Pen. Code, § 496, subd. (a)).
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On January 22, 2002, appellant admitted one count of second degree burglary and one count of receiving stolen property. The other charges were dismissed with the facts to be considered at disposition. On February 14, 2002, the juvenile court ordered appellant released to his parents custody and continued the dispositional hearing.
In March 2002, Dr. Elaine Finnberg, a clinical psychologist, conducted a psychological evaluation of appellant. Finnberg disclosed that appellant had one prior arrest for theft, and the case was closed after he attended the "Theft Offender Program." Appellant also told her that he had previously stolen several items from neighbors and an item from Radio Shack while the dispositional hearing was pending. According to Finnberg, appellant suffered from significant learning disabilities, and had a "great deal of underlying anger and depression."
On March 18, 2002, the probation department filed a memorandum in which it alleged that appellant violated the courts release order and recommended removal from his parents home. The next day, the juvenile court found appellant in violation of home supervision and temporarily placed him in the custody of the probation department. On March 26, 2002, the juvenile court adjudged appellant a ward of the court and placed him on probation in his parents custody on condition that he serve 20 days in juvenile hall. The juvenile court also ordered that the school district conduct an Individualized Educational Program (IEP) for appellant.
In May 2002, the IEP was conducted and appellant was found ineligible for special education services.
At the review hearing on June 26, 2002, the juvenile court found that appellant had been making satisfactory progress on probation. It also ordered an assessment by the Youth Complex Program.
On January 22, 2003, the probation department filed a petition pursuant to section 777 in which it alleged that appellant had violated his probation, because he was tardy to class 23 times and had 16 unexcused absences. On February 20, 2003, appellant admitted the probation violations. By March 10, 2003, appellant had accumulated 10 more late class arrivals and one unexcused absence. He was also failing five of his seven subjects at school. At the dispositional hearing on March 13, 2003, the juvenile court continued appellant as a ward and placed him on probation on condition that he serve six days in juvenile hall and that he participate in the Silver Star Youth Program.
On May 27, 2003, the probation department filed another section 777 petition in which it alleged that appellant had violated probation by testing positive for marijuana on two occasions and violating curfew. On May 28, 2003, appellant admitted the probation violations. On the same day, the juvenile court continued appellant as a ward and reinstated probation on condition that he serve 45 days in juvenile hall and that he continue to participate in the Silver Star Youth Program.
In its social study for the review hearing on August 28, 2003, the probation department stated that appellant continued to participate in the Silver Star Youth Program where his academic performance was satisfactory, he attended school regularly, and he had improved his overall behavior. Appellant had also began taking medication for his hyperactivity. However, it was alleged that appellant had tested positive for marijuana on August 15, 2003. The juvenile court reinstated probation on condition that appellant serve six days in juvenile hall and that he continue to participate in the Silver Star Youth Program.
On November 21, 2003, the probation department alleged that appellant tested positive for marijuana twice. Appellant continued to make academic progress. On November 24, 2003, the juvenile court continued appellant on probation on condition that he serve nine days in juvenile hall.
On February 10, 2004, the probation department filed a section 777 petition in which it alleged that appellant had violated probation when he tested positive for marijuana, violated curfew, and failed to attend classes. The following day, appellant admitted the probation violations. The juvenile court ordered that appellant be detained at juvenile hall for 30 days and that he submit to a psychological evaluation.
Dr. Thomas Reidy, a clinical psychologist, conducted an evaluation of appellant. He noted that appellant associated with gang members. Reidy concluded that appellants criminal history, age, repeated drug use, lack of social skills, and probation violations indicated "a strong degree of future risk for delinquent behavior without immediate intervention." In Reidys opinion, appellant needed more structure and guidance than the Silver Star Youth Program could offer. At the review hearing on February 25, 2004, the juvenile court accepted the evaluation and continued appellant on probation.
On March 23, 2004, the probation department filed another section 777 petition in which it alleged that appellant violated probation by missing and being late for classes, and by being suspended from school. The following day, appellant admitted the probation violations. The juvenile court continued appellant on probation on condition that he serve 18 days in juvenile hall and that he continue to participate in the Silver Star Youth Program.
On April 5, 2004, the probation department reported that appellants performance in the Silver Star Youth Program was "dismal" and that the Interagency Placement Committee recommended that appellant be placed in the Youth Center. Apparently, appellant was now eligible for special education services, because the report noted that appellants last IEP was completed in June 2003. The report also stated that appellant was an affiliate of the Nortenos. The probation department recommended that appellant be removed from the custody of his parents. On April 8, 2004, the juvenile court continued appellant as a ward and committed him to the Youth Center.
On April 5, 2004, the district attorney filed a new petition under section 602 that alleged appellant made criminal threats (Pen. Code, § 422.) On March 19, 2004, appellant was in art class when he drew a picture of a gun and said to his teacher, "One of these days Im going to bring one of these in to school." When the teacher asked why he would want to get himself locked up, appellant replied, "Just, I guarantee you Ill take out one or two people with me." As appellant walked away, he made a gun gesture with his hand and said, "Pow." On April 29, 2004, appellant admitted the allegation. On May 20, 2004, the juvenile court continued appellant as a ward, set the maximum term of confinement at four years and four months, and committed him to the Youth Center. The juvenile court also warned appellant that any further violations could result in a commitment to the CYA.
On September 27, 2004, the probation department alleged that appellant violated probation by failing to complete the Youth Center program. The following day, appellant admitted the violation, and the juvenile court ordered him detained in juvenile hall pending disposition. On October 13, 2004, the juvenile court continued appellant on probation and ordered that he be detained in juvenile hall until he could be returned to the Youth Center.
On July 21, 2005, appellant and other wards escaped from the Youth Center facility at approximately 12:30 a.m. Later that day, the police apprehended them.
On July 27, 2005, the district attorney filed a new petition under section 602 which alleged that appellant escaped from the Youth Center (§ 871, subd. (a)). The petition also alleged that appellant violated probation. On July 28, 2005, the offense was reduced to a misdemeanor, because appellant did not use force in the escape. Appellant admitted the allegation.
The probation department prepared a report for the dispositional hearing. Appellant told his probation officer that he escaped from the center, because he did not receive a promotion. He also stated that he "was tired of being treated like a kid." According to school officials, appellant completed his work, but had difficulties behaving in class. The report noted that appellant was an individual with "exceptional needs (Special Education)." Both the Interagency Placement Committee and the probation department recommended that appellant be recommitted to the Youth Center. According to staff at the CYA, appellant "would attend school, participate in gang awareness counseling, substance abuse counseling, victim impact counseling, and anger management counseling" if committed to the CYA.
On August 10, 2005, the juvenile court continued appellant as a ward and committed him to the CYA for four years and eight months. The juvenile court stated: "As I look back over your history here, its been nothing but an abysmal failure because you dont do what youre told. One violation after another. Sixth appearance before the court for disposition since you were declared a ward in March of 02. You refuse to attend school. You refuse to follow programs, Silver Star, for example. Attempts to contact you are unsuccessful, your parents unsuccessful. [¶] And then back in January 04, once again a positive test for marijuana. Violation of curfew. Failed to attend school February 2nd, 3rd, 4th, 5th, 6th, after being told numerous times to do so, and giving us assurances prior to that that you would do so. [¶] Moving forward a little bit we come to Silver Star, back in there, March of 04, Silver Star Community School Aide Sandra Zarate, [appellant] threatened her. Minor was working on drawing in class, she asked what he was doing, he replied: Gun, drawing a gun. And stated: Just guarantee you, Ill take out one or two people with me. As the minor left, the victim turned around, he made a gun gesture with his hand towards her and made a gun discharge noise with his mouth, and then said: Oh, I was just joking around. [¶] Youve been joking around with this system for too long. We told you that. You go to the Youth Center. [¶] And then you come in on a violation in July of 04, dont want to participate in physical training. They tell you you lose ten points, you still refuse. Then they see you dribbling a basketball, they tell you to have a seat. Ten minutes later youre playing catch with a football. Youre instructed again to have a seat. They ignore it. [¶] Two weeks later here you are again during P.T., failure to fall in line, failure to follow the JI0s instructions, and youre observed sliding down a length of wet bleachers and falling off on the other side, after you had been instructed by them, while in custody, numerous times to stop. [¶] Four days later you lose 30 points for not following staff instructions, violating movement, formation protocol, being disrespectful to staff. That lasted a little over a month. [¶] And on September 21st, youre back again for failing to follow staff instructions. Everybodys told to be on the black top, and you are hiding behind a tree so you dont have to participate. And you say to me when you come to court: Judge, I want another chance. So I give it to you. And you run. [¶] Your overall behavior at the Youth Center has not been consistent. You do not follow directions, do not follow instructions, you disrupt class, and you refuse to accept any redirection in your life by Probation. [¶] Youve had numerous opportunities to change your ways. You have a history of noncompliance, and you failed to demonstrate any meaningful commitment to change. [¶] The fact that you make threats towards staff while youre in custody indicates that you are a threat to the public at large. You are out of control. You lack remorse. You represent a threat to public safety. [¶] Youve been warned, and in the face of warnings about going to CYA, you continue in your course of behavior and your unwillingness to accept any redirection. [¶] This program is of no benefit to the minor when he continues to run from it — meaning the Youth Center. He absconds with others, and then his reason is: I was frustrated, Im tired of being treated like a kid. Well, then you ought not to act like one. [¶] He is an individual with exceptional needs regarding education. [¶] As Ive indicated, its his sixth appearance before the court for disposition since March of 02, theft offense, receiving stolen property, one violation after another. Not going to school. Doesnt make progress. Violates probation on numerous occasions. Tests positive for drugs. Truant from school. Suspended from school. Poor performance at Silver Star. Threatening staff. Been recommitted and warned. [¶] He is no longer a viable candidate for the Youth Center. That does not necessarily translate, however, into the fact that he is a candidate for CYA. [¶] In a review of the totality of his background and the circumstances of these events, the Court does find that he is a threat to public safety, and he is a viable candidate for CYA. CYA has programs that will probably benefit him. [¶] Less restrictive alternatives have been ineffective and inappropriate. [¶] Its in his best interest and welfare that we require a CYA commitment. Protection of society from you requires a secure facility. [¶] More than reasonable efforts have been made to avoid this removal from your home and this disposition today. [¶] It is evident to me that local programs are ineffective and too short to redirect or rehabilitate this minor, and Im in hope that a CYA commitment can do so. [¶] This is his third felony conviction. His maximum confinement time is set at four years and eight months. [¶] He has credits for 601 days, of which weve attempted to rehabilitate him, 158 days on one occasion, 267 days on another occasion, and still no change. [¶] The 422 prior, threatening staff, pictures of guns, making noises, pointing your fingers. [¶] My individual review of each of those felony priors indicates that they should remain felonies. [¶] Ive independently reviewed the maximum confinement time, and find pursuant to 731(b) that the maximum confinement time should remain at four years and eight months."
II. Discussion
Appellant contends that the juvenile court abused its discretion in committing him to the CYA.
"No ward of the juvenile court shall be committed to the Youth Authority 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 the Youth Authority." (§ 734.) "[W]hen a public offense has been committed by a juvenile, certification of the juvenile to the CYA is within the sound discretion of the committing court, . . ." and the decision "may be reversed on appeal only upon a showing that the court abused its discretion in committing the minor to the CYA. A reviewing court must indulge in all reasonable inferences to support the findings of the juvenile court, and such findings will not be disturbed on appeal when there is substantial evidence to support them." (In re Michael R. (1977) 73 Cal.App.3d 327, 332-333, internal citations and quotation marks omitted.)
"The evidence . . . must demonstrate probable benefit to the minor from commitment to the CYA and that less restrictive alternatives would be ineffective or inappropriate. [Citation.]" (In re George M. (1993) 14 Cal.App.4th 376, 379.) In making its order, the juvenile 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 minors previous delinquent history." (§ 725.5.) The juvenile court must also focus on both the need for public protection and the best interests of the minor. (§ 202; In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684.)
Here appellant was almost 18 years old when he was committed to the CYA. His criminal history included three felonies and a misdemeanor as well as several uncharged offenses. Appellant failed repeatedly to reform while on probation and at the Youth Center. The criminal threat against his art teacher involved potentially violent behavior, and his escape from the Youth Center demonstrated the need for a secure environment. Thus, the juvenile court did not abuse its discretion in committing appellant to the CYA.
Appellant argues, however, that there was insufficient evidence to support the juvenile courts finding that less restrictive alternatives would be ineffective or inappropriate. Appellant notes that both the Interagency Placement Committee and the probation department recommended that he be recommitted to the Youth Center. He also emphasizes the positive comments in the probation reports that indicating that he was doing "very well" at the Youth Center, was "very pleasant and cooperative," had improved academically, and had been named "Student of the Month." He further asserts that he received an excellent report from juvenile hall staff while the dispositional hearing was pending.
Though appellant had made some progress while on probation and at the Youth Center, his overall performance was, as the juvenile court noted, an "abysmal failure." Significant efforts were made repeatedly to rehabilitate him. He violated probation on six separate occasions prior to his commitment to the Youth Center. When he violated probation again, the juvenile court committed him to the Youth Center. After yet another probation violation, the juvenile court recommitted him to the Youth Center. Appellant then escaped from the Youth Center. Though appellant was given multiple opportunities to reform through less restrictive alternatives, he refused to comply with the conditions of probation or cooperate with staff in the programs to which he was committed. He disobeyed and threatened staff, used marijuana, failed to attend classes and programs, and disrupted classes. Thus, there was substantial evidence to support the juvenile courts finding that less restrictive alternatives were ineffective or inappropriate.
Noting that his criminal history was less serious than that of other residents at the Youth Center, appellant next argues that the juvenile court erred in committing him to CYA where there are more criminally sophisticated offenders. Here appellants offenses were not criminally sophisticated. However, as previously discussed, they were not insignificant. In any event, the nature of the offenses is but one factor for the juvenile court to consider in making its disposition. (In re Tyrone O. (1989) 209 Cal.App.3d 145, 152.)
Appellant also contends that there was no evidence to support the trial courts finding that he posed a threat to public safety. He asserts that he did not engage in any violent behavior during the previous four years. However, appellants threat to shoot his art teacher, fighting with others, and association with Nortenos indicates that he was a potential danger to the community.
Appellant argues that there was insufficient evidence to support the finding that he would benefit from a commitment to the CYA. The record establishes otherwise. According to the staff at the CYA, appellant would attend school, as well as participate in gang awareness, substance abuse, victim impact, and anger management counseling. Though some of these services had previously been made available to appellant, his failure at rehabilitation demonstrated that he required the more structured setting at the CYA to ensure appellants participation and compliance.
Appellant also challenges the juvenile courts finding that he lacked remorse for his conduct. He points out that he acknowledged that his escape from the Youth Center was "dumb," and that he let his "emotions cloud [his] thinking." However, appellant had repeatedly violated the conditions of his probation, expressed remorse, and then continued with his negative behavior. Thus, the juvenile court could have reasonably determined that appellants remorse at the present dispositional hearing was not sincere.
Appellant asserts that the juvenile court failed to consider his educational needs when committing him to the CYA. However, the juvenile courts finding that appellant was an individual with special educational needs indicated that it had considered this factor in making its determination. Thus, the present case is distinguishable from In re Angela M. (2003) 111 Cal.App.4th 1392. In that case, there was evidence that the minor had special educational needs. (Id. at pp. 1398-1399.) However, the juvenile court failed to make findings as to whether she was an individual who needed special education services prior to committing her to the CYA. (Ibid.)
Appellant next focuses on his learning disabilities and his need for special education services. He notes that his educational needs were being addressed at the Youth Center, but there was no indication that these needs would be met at the CYA. He argues that his severe learning disabilities would require more attention than what would be available at the CYA. There is no merit to this argument. Though the record establishes that appellant was an individual with exceptional needs, his reading and mathematic abilities were at the 9th grade level. "When a ward of the court is committed to the CYA, part of the treatment and rehabilitative process is to provide the child with an appropriate education, which necessarily includes an awareness of and services for any special educational needs." (In re Angela M., supra, 111 Cal.App.4th 1392, 1398, fn. 6.) There is nothing in the record indicating that the CYA would be unable to provide educational services for an individual who functions at the level that appellant does.
Appellant claims that the juvenile court failed to furnish the CYA with his IEP. Section 1742 provides: "When the juvenile court commits to the Youth Authority a person identified as an individual with exceptional needs, . . . the juvenile court . . . shall not order the juvenile conveyed to the physical custody of the Youth Authority until the juveniles individualized education program . . . has been furnished to the Department of the Youth Authority." Even assuming that the CYA did not receive appellants IEP and that this issue has not been waived on appeal, appellant has failed to demonstrate prejudice. Section 1120, subd. (b) requires the CYA to conduct its own assessment of a minors educational needs upon commitment and annually thereafter. Since there is nothing in the record to indicate otherwise, we presume that appellant has received special assessment and education at the CYA. (Evid. Code, § 664.)
There is no merit to appellants contention that the juvenile court did not have sufficient evidence regarding appellants educational needs, because it did not ensure that there was a current IEP for appellant. Rule 1494.5(e) of the California Rules of Court provides that "the court must provide to [the CYA] information regarding the youths educational needs, including the youths current [IEP] if one exists." Thus, here the court was required to provide the CYA with an IEP "if one exists." It had no obligation to order a current IEP. Moreover, the report from the probation department summarized appellants academic performance.
Appellant argues that the juvenile court improperly focused on punitive, rather than rehabilitative, grounds for committing him to the CYA. In reviewing the juvenile courts statements, we find no support for this claim. The juvenile court began by stating that appellants failure on probation and at the Youth Center stemmed from his refusal to conform his behavior. It then reviewed instances of appellants misconduct in some detail and concluded that previous dispositions had been ineffective in rehabilitating him. In our view, the juvenile courts statement indicates an attempt to determine an appropriate placement rather than an attempt to punish appellant.
We also do not find support for appellants claim that the juvenile court imposed the CYA commitment, because it had previously warned him that it would do so.
"[T]he threat of Youth Authority commitment may have a salutary effect on a particular minors attitude, and nothing said here should be understood to restrict the courts ability to employ such a threat to encourage the minors reform. Further, a minors failure to heed such a warning may be taken as some evidence of resistance to rehabilitation. Aside from these purposes and effects, however, such a warning can have no legal bearing on a subsequent dispositional proceeding. Certainly it cannot operate to foreclose the imposition or continuation of a less restrictive placement." (In re Ronnie P. (1992) 10 Cal.App.4th 1079, 1090, fn. 8.)
Here the juvenile court announced its tentative decision that it would commit appellant to the CYA, noting that he had previously been warned twice about a CYA commitment. Following argument by the parties, the juvenile court gave an explanation of its findings. It specifically stated that though appellant "is no longer a viable candidate for the Youth Center. That does not necessarily translate, however, into the fact that he is a candidate for CYA." In reviewing the "totality of his background," the juvenile court then made the requisite findings for committing appellant to the CYA. There was no error.
III. Disposition
The order is affirmed.
We Concur:
Bamattre-Manoukian, Acting P.J.
McAdams, J.