Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J10-00787
RUVOLO, P.J.
I.
Introduction
Appellant L.S. appeals from a dispositional order committing him to the Orin Allen Youth Rehabilitation Facility (OAYR, or ranch) for a confinement period of nine months. Appellant contends that the juvenile court abused its discretion in doing so because the evidence does not establish that such disposition would benefit him, or that less restrictive alternatives were inappropriate or unavailable. We affirm.
II.
Procedural Background
On May 18, 2010, a Welfare and Institutions Code section 602 petition was filed in Contra Costa County alleging that on May 14, 2010, appellant committed four counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)).
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On June 14, 2010, the court dismissed the four counts of second degree robbery, and amended the section 602 petition to include two felony allegations: grand theft from a person (Pen. Code, § 487, subd. (c)), and accessory to a felony (Pen. Code, § 32). Appellant pleaded no contest to both allegations.
Appellant’s contested dispositional hearing was held on July 9, 2010. The court heard argument and considered the evidence presented at the hearing, including the probation department’s disposition report and the testimony of appellant’s probation officer, a co-responsible’s probation officer, his mother, grandfather, track coach, and assistant track coach. The juvenile court concluded that commitment of the minor to a county ranch was in the best interests of society and appellant, and the most appropriate disposition. The court adjudged appellant a ward of the court and committed him to the ranch for a period not to exceed nine months, and imposed probation terms.
On August 13, 2010, the juvenile court denied appellant’s petition for modification of the commitment order based on changed circumstances. Appellant filed a timely notice of appeal on August 31, 2010.
III.
Factual Background
A. Factual Circumstances Underlying the Appeal
The events leading to appellant’s felony admissions underlying this appeal are as follows. On May 14, 2010, appellant, then 15 years old, I.H., age 14, T.S., age 17, and N.G., age 16, approached four minors, T.P., age 15, J.C., age 14, S.S., age 15, and A.K., age 14, who were playing basketball at Fairmount Elementary School in El Cerrito, California. T.S. and I.H. carried facsimile handguns in case they happened upon a “robbery opportunity.” When appellant and the minors came across the group playing basketball, they decided to rob them and have appellant act as the lookout. Appellant subsequently remained on one side of the basketball court fence as the other three juveniles, I.H., T.S., and N.G., with the hoods of their sweatshirts pulled up, jumped the fence and approached the four victims.
I.H. then pointed one of the facsimile guns at T.P. and demanded his property. When T.P. attempted to move the facsimile gun away from his face, I.H. put him in a headlock and, fearful for his life, T.P. surrendered his cell phone. T.S. pointed the second facsimile gun at J.C. who, also fearful of being shot, handed T.S. his iPod and cell phone. Meanwhile, N.G. took a cell phone and wallet from S.S., and a ChapStick from A.K.
After the robberies, the minors, including appellant, fled. An eyewitness followed the group of minors and called the police, who eventually apprehended appellant and I.H. Both minors possessed backpacks that each contained one of the facsimile guns and property stolen from the victims. Appellant confessed to his role in the thefts, and identified the other two minors. Appellant also told police that he met T.S. and N.G. that same day, but upon inspection of appellant’s phone, the officers found contact information for T.S. Appellant allowed the officers to access that contact information, and police later arrested T.S. and N.G.
B. Dispositional Report
In addition to recounting the nature of the underlying offenses, the probation department’s dispositional report provided further information regarding appellant’s attitude and response to the offenses, his academic performance, history of substance abuse, family support, collateral contacts in juvenile hall, and prior delinquent activities.
With respect to appellant’s attitude and response to the offense, appellant told the probation officer that it was not his idea to commit the robbery, but he refused to say whose idea it was. Appellant said that he was supposed to spend the night at T.S.’s house when “things got out of control.” Appellant stated that he did not know why he participated in the commission of the offense, but that he “just followed along.” He said that he had known T.S. for a few months through the high school football team, but did not know I.H. or N.G. well. Appellant also said that he did not commit the crime because he was in need of money.
According to the report, appellant stated that he was sorry for what he put the victims through, and realized how serious the situation had become. He also expressed remorse for disappointing his family. He said that he was willing to comply with the court’s orders so that he could resume playing football, running track, and focusing on his academics so that he could get back to his family, and perhaps one day attend college.
With respect to appellant’s academic performance, he was in the tenth grade. Appellant earned two A’s, one B, and two C’s on his last report card, but he says that his current grades were affected by his detention. Appellant’s attendance records revealed that although he was occasionally late to class, he attended school regularly. Appellant was suspended once from school for a period of five days for fighting.
With respect to substance abuse, appellant admitted to experimenting a few times with marijuana and alcohol, but said that he did not continue to use either because of his involvement in sports. Appellant also stated that he was not under the influence of any substances during the commission of the offense.
The dispositional report also included statements made to the probation officer by appellant’s parents, who are divorced. Appellant’s mother stated that appellant lives with her, her current husband and his two daughters. She said that she was “overwhelmed” by appellant’s offense and that his behavior must be attributable to the other minors’ influence. Appellant’s mother also said that her son is generally a cooperative child who abides by her rules and does well in school.
Appellant’s father stated that although he does not live with his son, he is a strict parent and is very involved in appellant’s life. He, too, was confused as to why his son committed the offenses and also attributed appellant’s behavior to the influence of the other minors.
The dispositional report further noted that appellant was behaving at an acceptable level at juvenile hall and that this was the minor’s first referral to the probation department.
Finally, according to the dispositional report, the probation department concluded that due to the seriousness of the offenses, appellant needed to receive rehabilitative services in a more restrictive atmosphere than he would at home, and therefore recommended out-of-home placement. However, a placement screening found that a commitment at the ranch was not appropriate due to the use of a simulated weapon during the commission of the crime. The placement unit determined that the Youth Offender Treatment Program (YOTP) provided a more suitable disposition for appellant.
C. Dispositional Hearing
As already noted, at the contested dispositional hearing held on July 9, 2010, defense counsel presented the testimony of Julie Nie, appellant’s probation officer, Maly Jong, I.H.’s probation officer, William S., and Samuel B., appellant’s high school track coaches, appellant’s maternal grandfather, and appellant’s mother.
Probation Officer Nie, who authored the dispositional report, testified as to the factors she considered in recommending appellant’s disposition. Among the factors that contributed to her out-of-home placement recommendation were: the severity of the crime, the impact the offense had on the victims, the fact that appellant was so easily influenced by his peers, that he had ample opportunity to leave before the commission of the crime but did not do so, that he was not under the influence of any drugs or alcohol and therefore had unimpaired cognition, and his family support system.
In her discussions with appellant, Nie said that, when prompted by her, appellant expressed remorse for his conduct. Appellant also told her that he spends much of his time playing on his high school’s track and football teams, and for this reason, he does not use drugs or alcohol. Nie testified that appellant expressed his desire to remain involved with sports so that someday he may be able to attend college.
Nie further testified that she spoke to appellant’s mother and father. Nie did not specifically ask either of them whether or not they were conducting victim impact counseling with appellant because she believed that that is something that can be addressed in a professional setting and that it would not have impacted her recommendation. Nie also testified that in her conversations with appellant’s parents they seemed loving and supportive. Nie stated that appellant’s criminal conduct, in light of this strong support network, played a significant role in her disposition recommendation.
Nie concluded that although she was aware of other members of appellant’s support system, such as his grandparents and high school coaches, she did not speak with them because it is usually her practice to contact extended family members only if they are a minor’s primary caretaker. Finally, Nie explained that the ranch has a general prohibition on accepting wards in cases where weapons were involved. Nie attempted to rescreen appellant, but he was rejected by the ranch.
Appellant’s counsel also presented the testimony of Maly Jong, I.H.’s probation officer, who stated that I.H. told her appellant did not want to participate in the robberies.
WilliamS., the assistant track coach, also testified on appellant’s behalf. William S. had known appellant for approximately four years and described him as a “great kid... [and a] [g]reat athlete [with a] great personality.” According to William S., appellant was not the “type of kid” who would participate in a robbery or attempt to hide evidence. He said that appellant was his “number one sprinter” and worked hard. William S. believed that it was appellant’s goal to go to college, and that appellant “has the ability to go to a good school and run track.”
Samuel B., appellant’s track coach and a former deputy sheriff, described appellant as “[p]leasant most of the time... [and] [p]retty respectful” for his age. Samuel B. testified that appellant was very involved in football as well. Samuel B. did not have much interaction with appellant outside of track, but said that at least on the track field, appellant “seemed to gravitate toward the other motivated kids.” Samuel B. agreed with assistant track coach William S.’s remarks that it was out of character for appellant to commit and conceal evidence of a robbery. Finally, Samuel B. stated that appellant “tended to be a follower.”
Next, appellant’s maternal grandfather and a former probation officer (Grandfather) testified on behalf of appellant. Grandfather said that he was very much involved in appellant’s life and saw him at least once a week. He went to many of appellant’s track meets and talked him about the importance of working hard at sports and academics in order possibly to attend college. Grandfather considered moving to another county to provide appellant with an opportunity to transfer to a school with a better academic reputation.
Furthermore, Grandfather testified that he had discussed the offense with appellant and that appellant recognized how terrifying it must have been for the victims. According to Grandfather, appellant expressed remorse and was disappointed in himself for his actions. Grandfather explained that he spoke with appellant after the offense about being a “stronger-willed individual” and the “perils of being a follower.”
Finally, appellant’s mother (Mother) testified that appellant “sound[ed] very remorseful after what he did.” Mother said that appellant became teary-eyed when they discussed the seriousness of the crime. Mother also said that if appellant returned home, he would live with her and attend a different school, where her current husband works as a track coach. She also had many ideas as to how appellant could better spend his free time, such as an after-school program run by the school for athletes. Finally, she said that if appellant returned home, she would impose certain restrictions, such as limitations as to who appellant could talk to on his cell phone.
After both sides rested, appellant requested that the juvenile court send him home and put him on Juvenile Electronic Monitoring (JEM), or perhaps sentence him to weekends at juvenile hall. The prosecutor disagreed with both appellant and the probation department and argued that a “regular program” ranch commitment was more appropriate, due to the severity of the offense and in light of appellant’s “huge support network.”
After hearing the evidence, the juvenile court determined that appellant’s welfare required that he be removed from his parents under section 726, subdivision (a)(3). The court found that reasonable efforts were made to prevent or eliminate appellant’s removal from his home, and committed appellant to OAYR for a maximum term of a nine-month regular program with the ability to earn credits for good behavior.
The court believed that punishment, as defined by section 202, subdivision (e), is an “important adjunct of rehabilitation.” The court stated that an in-home placement, such as that sought by appellant, overlooks the punishment aspect of the disposition. It found that although appellant’s conduct was less culpable than his co-responsibles’, there was a “real, live, actual threat to public safety” if appellant returned home. In addition, the court believed that appellant’s attempt to remove evidence and flee from the police increased his level of culpability.
That subdivision provides: “(e) As used in this chapter, ‘punishment’ means the imposition of sanctions. It does not include retribution and shall not include a court order to place a child in foster care as defined by Section 727.3. Permissible sanctions may include any of the following:
The court mentioned that in similar cases, the usual placement is generally an “out-of-county ranch” with a normal confinement period of at least one year. The court, however, believed that an out-of-county ranch would not suit the minor’s rehabilitation objectives. It acknowledged that it is rare to see a family in juvenile court that is as “dedicated, well-meaning and capable of providing support” for their child as appellant’s family. The court decided that an in-county ranch commitment provided the appropriate alternative for appellant, primarily due to his significant family structure and the severity of the crime.
D. Petition to Modify Order
The court heard appellant’s petition under section 775 to modify a previous order on August 13, 2010. Appellant argued that his positive behavior in juvenile hall, along with a submitted plan by the family which indicated how it would supervise appellant if he was hypothetically released, constituted a change in circumstance and/or new evidence. The court found that neither the positive behavior nor the family’s plan constituted a change of circumstance or new evidence, and if it did, “it would not be sufficient for [the court] to reverse [itself] or modify the sentence.” The court reiterated that an in-county disposition was what the “level of [appellant’s criminal conduct] required, ” and denied appellant’s motion.
IV.
Discussion
Appellant contends that the juvenile court abused its discretion in imposing a ranch commitment because the evidence does not establish that such a commitment would benefit him, and the court lacked sufficient evidence with which to consider properly alternative placements.
A. Standard of Review and Applicable Law
The juvenile court has broad discretion in determining the appropriate rehabilitative and punitive measures for offenders. (§ 202; In re Asean D. (1993) 14 Cal.App.4th 467, 473; In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.) An appellate court will not lightly substitute its judgment for that of the juvenile court, but rather must indulge all reasonable inferences in favor of the decision and affirm the decision if it is supported by substantial evidence. (In re Asean D., supra, 14 Cal.App.4th at p. 473; In re Michael D., supra, 188 Cal.App.3d at p. 1395.)
To determine whether substantial evidence supports a ranch commitment, we examine the record presented at the dispositional hearing in light of the purposes of juvenile law. (§ 202; In re Michael D., supra, 188 Cal.App.3d at p. 1395.) Since 1984, section 202 has required that courts commit delinquent minors “in conformity with the interests of public safety and protection, [to] receive care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances.” (§ 202, subds. (b), (e)(5); In re Lorenza M. (1989) 212 Cal.App.3d 49, 57; In re Michael D., supra, 188 Cal.App.3d at p. 1396.) Although the 1984 amendment places a greater emphasis on punishment and societal protection, rehabilitation remains a critical objective of the juvenile law. (In re Teofilio A. (1989) 210 Cal.App.3d 571, 576; In re Michael D., supra, 188 Cal.App.3d at p. 1396.) To commit a minor to a county ranch, the juvenile court must be 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 such disposition. (§ 734.) Accordingly, the rehabilitative purposes of a ranch commitment are satisfied when there is 1) evidence in the record demonstrating probable benefit to the minor, and 2) evidence supporting a determination that less restrictive alternatives are ineffective or inappropriate. (In re Teofilio A., supra, 210 Cal.App.3d at p. 576; In re Michael D., supra, 188 Cal.App.3d at p. 1396.)
B. The Juvenile Court Did Not Abuse its Discretion in Committing Appellant to An In-County Ranch Placement
In arguing that the juvenile court abused its discretion in removing appellant from his parents’ home for a first offense appellant contends that the juvenile court did not substantiate its finding that “reasonable efforts [had been] made” to prevent removal from the home. To the contrary, appellant argues, all of the evidence presented not only fails to support the court’s finding, but it “militates against it.”
1. Probable Benefit
There is no rigid test for determining whether a commitment to a county ranch would benefit a minor. (See, e.g., In re Martin L. (1986) 187 Cal.App.3d 534, 543-544.) Instead, the juvenile court must consider the individual circumstances in light of the potential reformative, educational, rehabilitative, treatment, and disciplinary benefits a disposition may provide to the minor. (See §§ 202, 734; In re Gerardo B. (1989) 207 Cal.App.3d 1252, 1258-1259.) Factors include the minor’s age, the seriousness of the minor’s criminal conduct, the minor’s mental and physical needs, the minor’s prior record, the extent of the minor’s need for a controlled environment, the threat the minor poses to the community, and the efficacy of prior dispositions in rehabilitating the minor. (See §§ 202, 734; In re Gerardo B., supra, 207 Cal.App.3d at pp. 1258-1259; In re Anthony M. (1981) 116 Cal.App.3d 491, 503-505; In re Jesse McM. (1980) 105 Cal.App.3d 187, 191-193.) The court may also consider “punishment as a rehabilitative tool” when determining whether a certain disposition would benefit a minor; however, a juvenile court should not commit a minor solely based on retributive grounds. (In re Michael D., supra, 188 Cal.App.3d at p. 1396; § 202, subd. (e)(5).) Rather, the juvenile court must 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.)
In considering the appropriate disposition for appellant, the juvenile court correctly stated that “[e]ach disposition for each minor... needs to be individually tailored” and each minor must be “individually evaluated in order to determine what is best suited for that person.” When it considered the appropriate disposition for appellant the juvenile court explicitly referred to section 202, and read the section’s pertinent language aloud. The court correctly explained that punishment under juvenile law “needs to be related to rehabilitation, and... cannot be imposed just to show the minor... who has the most power or [used] simply for the purpose of teaching a lesson.”
The juvenile court also properly considered the gravity of the offense. (§ 725.5; see also In re Robert H. (2002) 96 Cal.App.4th 1317, 1330.) The two felonies to which appellant pleaded no contest, grand theft and accessory to a felony, occurred in the context of robberies during which appellant’s co-responsibles used realistic facsimile firearms to scare a group of minors into surrendering their property. Appellant and his co-responsibles did not merely carry the facsimile guns for innocent play, but deliberately possessed them to commit robberies. In T.S.’s confession to police, he admitted that he and I.H. “had the facsimile guns with them in case they happened upon a robbery opportunity.” Although appellant told his probation officer that he “just followed along, ” and Jong, I.H.’s probation officer, testified that I.H. told her appellant was a “reluctant participant, ” appellant had ample opportunity to leave the area if he did not want to participate.
The juvenile court found that, although appellant’s conduct was “not as culpable as the others with whom [he] committed [the] crime, ” it was “very concerned about the dangerousness of [appellant’s] conduct” and “community safety.” The court found that appellant’s participation in the robbery was “pretty active” and extended beyond merely acting as a lookout. At the time of his arrest, appellant was in possession of a backpack that contained one of the facsimile handguns and property taken from the victims. Furthermore, appellant attempted to flee from the police and remove evidence from the scene. This, according to the court, “increase[d] [appellant’s] level of culpability.” We agree with the juvenile court that appellant’s participation in the robbery was more than merely passive, and that “there was a real, live, actual threat to public safety from [appellant’s] release.”
Additionally, we disagree with appellant’s contention that the facsimile guns used in the offense did not constitute “guns under the law, ” and that this therefore reduced the severity of the offense. The weapons used by appellant’s co-responsibles in this case were not merely toy guns, but were BB guns that are “designed to shoot by expelling a metal projectile at a target, ” and are therefore “capable of inflicting serious injury. [Citation.]” (In re Bartholomew D. (2005) 131 Cal.App.4th 317, 326, fn. omitted.) Even more significantly, however, the victims of the robbery had no way of discerning whether the weapons were in fact BB guns and told police that they were terrified of being shot.
Appellant further alleges that positive factors, such as a strong family support system, non-use of drugs or alcohol, satisfactory academic performance, and involvement in sports left him in a “Catch 22.” Appellant claims that without such a strong family support system, “removal from the home would have been recommended on the grounds that the parents were not capable of preventing [appellant] from committing the offense.” Paradoxically, appellant argues, “where the parents were loving and supportive, removal from the home was still recommended on the grounds that their love and support did not prevent appellant from committing the offense.” (Fn. omitted.)
As the juvenile court mentioned, a court must consider the individual circumstances of each and every juvenile in light of the potential reformative and disciplinary benefits a disposition may provide to the minor. (See §§ 202, 734; In re Gerardo B., supra, 207 Cal.App.3d at pp. 1258-1259.) Among these factors include the minor’s mental needs and his need for a controlled environment. (See §§ 202, 734; In re Gerardo B., supra, 207 Cal.App.3d at pp. 1258-1259; In re Anthony M., supra, 116 Cal.App.3d at pp. 503-505; In re Jesse McM., supra, 105 Cal.App.3d at pp. 191-193.)
The record indicates that the court was not only concerned with the threat appellant posed to the community, but also his susceptibility to peer pressure despite the positive influences of his family and track coaches. At the dispositional hearing, Grandfather testified to a conversation he had with appellant after the offense, in which he reminded appellant about the need to be “a stronger-willed individual, ” and the importance of “not being a follower.” Appellant’s track coach also testified that appellant “tended to be a follower.” The juvenile court took into consideration all of the evidence presented that related to appellant’s life and circumstances and reasonably found that appellant’s welfare required that his custody be removed from his parents under section 726, subdivision (a)(3).
In summary, the juvenile court did not abuse its discretion in finding that appellant would benefit from a nine-month disposition at an in-county ranch. There was sufficient evidence for the juvenile court properly to conclude that the potential reformative, educational, rehabilitative, treatment, and disciplinary benefits of an in-county ranch would be of probable benefit to the minor.
1. Less Restrictive Alternatives
To justify the conclusion that lesser disposition options would be unsuitable for a minor, there must merely be some evidence that alternatives were considered, and that a ranch disposition would best lead to the rehabilitation of the minor and protection of society. (See In re Ricky H. (1981) 30 Cal.3d 176, 182-184, superseded on other grounds by statute as stated in In re Michael G. (1988) 44 Cal.3d 283, 298-299.); In re Asean D., supra, 14 Cal App.4th at pp. 473-474; In re Michael D., supra, 188 Cal.App.3d at p. 1396.)
As the California Supreme court has recently noted, “juvenile placements need not follow any particular order under section 602 and section 777, including from the least to the most restrictive. [Citations.] Nor does the court necessarily abuse its discretion by ordering the most restrictive placement before other options have been tried. [Citations.]” (In re Eddie M. (2003) 31 Cal.4th 480, 507.) The high court explained that the former governing statute previously “stated an explicit preference for juvenile court treatment ‘in [the minor’s] own home.’ [Citations.]” (Id. at p. 507, fn. 16.) Given this priority, which has since been removed from the statutory scheme, it was understood that persons within the juvenile court’s jurisdiction under section 602 would receive the most lenient disposition initially, and that more restrictive alternatives could be imposed only incrementally after less restrictive options had each been tried. However, “the statutory scheme no longer requires that placement alternatives run from the least to the most restrictive, [nor] that they be ‘ratcheted up’ gradually based on the person’s behavior at earlier levels. The juvenile court has broad discretion at disposition to implement the priorities in section 202 [setting forth priorities of juvenile law, including protection and safety of the public and each minor under the court’s jurisdiction]....” (John L. v. Superior Court (2004) 33 Cal.4th 158, 186, italics omitted.)
Furthermore, if there is evidence in the record that less restrictive placements were before the court, the fact the judge does not state on the record his consideration of those alternatives and reasons for rejecting them will not result in a reversal. (In re Teofilio A., supra, 210 Cal.App.3d at p. 577.) There must, however, be some evidence to support the judge’s implied determination that he or she sub silentio considered and rejected reasonable alternative dispositions. (Ibid.)
Here, the decision of the juvenile court to commit appellant to the ranch fully comports with these principles, and we discern no abuse of discretion. The record indicates that after considering the different placement options, the juvenile court concluded that the ranch was the best alternative to rehabilitate appellant and protect society. The court considered but subsequently rejected at-home placement because it “overlook[ed] the punishment aspect of the disposition.” The court stated that it was “very concerned about the dangerousness of [appellant’s] conduct, ” even if it “was not as culpable as [that of] the others” who committed the crime. Appellant not only acted as a lookout for robberies in which his co-responsibles used facsimile handguns, but he helped remove evidence and then fled. The court emphasized that this “increase[d] [appellant’s] level of culpability” and the court believed that appellant’s release posed an “actual threat to public safety.”
The juvenile court reasonably determined that an out-of-home commitment at an in-county ranch for a duration of nine months was needed for appellant’s rehabilitation and the safety of the community. Although appellant is a first-time offender, this in itself does not indicate that a ranch commitment is inappropriate. (See In re Asean D., supra, 14 Cal.App.4th at p. 473). As we have detailed, appellant’s criminal conduct was serious. Thus, there was sufficient evidence in the record to allow a juvenile court to conclude that less restrictive alternatives were ineffective or inappropriate, and therefore the juvenile court did not abuse its discretion when it committed appellant to the ranch.
V.
Disposition
The judgment is affirmed.
We concur: SEPULVEDA, J., RIVERA, J.
“(1) Payment of a fine by the minor.
“(2) Rendering of compulsory service without compensation performed for the benefit of the community by the minor.
“(3) Limitations on the minor’s liberty imposed as a condition of probation or parole.
“(4) Commitment of the minor to a local detention or treatment facility, such as a juvenile hall, camp, or ranch.
“(5) Commitment of the minor to the Division of Juvenile Facilities, Department of Corrections and Rehabilitation.”