Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. JV-310553
Jenkins, J.
Defendant and appellant S.F., a minor, appeals the dispositional order of the juvenile court committing him to the Department of Juvenile Justice (DJJ). The court committed appellant to DJJ for a maximum term of four years and ten months after he admitted to a violation of Penal Code section 245, subdivision (a)(1) (assault with force likely to produce great bodily injury). Appellant contends the juvenile court abused its discretion by ordering that he be committed to DJJ. After carefully reviewing the record, we affirm the dispositional order of the juvenile court.
Facts and Procedural Background
A. Prior Petitions
Appellant was born in June 1992. In April 2007, at age 14, appellant was the subject of a petition filed by the Lake County District Attorney (DA) pursuant to Welfare and Institutions section 602, subdivision (a) (April 2007 petition). In the April 2007 petition, the DA alleged that appellant committed felony burglary of a commercial building (Pen. Code, § 459) and felony receipt of stolen property (Pen. Code, § 496, subd. (a)).
Further statutory references are to the Welfare and Institutions Code unless otherwise noted.
The detention report prepared in connection with the April 2007 petition noted appellant’s two prior contacts with law enforcement. In September 2003, appellant and two other juveniles burglarized and vandalized a private residence. In view of his young age, appellant only received a reprimand. In May 2005, appellant received six months of informal probation and 20 hours of community service for vandalism of an elementary school.
The April 2007 petition was sustained on the charge of misdemeanor receipt of stolen property. Regarding this offense, the dispositional report stated appellant was involved with a group of youths who burglarized the Clown Town store and made off with glass smoking pipes and knives. Appellant denied he was a “lookout” during the break-in but admitted he knew the pipes given to him had been taken from Clown Town. The April 2007 petition was also sustained on supplemental charges of misdemeanor prowling (Pen. Code, § 647, subd. (h)) and misdemeanor obstruction of a police officer (Pen. Code, § 148, subd. (a)(1)). These latter two offenses were based on an incident on April 10, 2007, in which Clearlake Police observed several youths acting suspiciously near a restaurant and the youths fled when the police approached the area. At the disposition hearing on May 29, 2007, appellant was declared a ward of the court, placed on probation and ordered to serve a maximum of 30 days in juvenile hall.
On October 24, 2007, the DA filed a petition alleging that appellant violated his conditions of probation by accumulating a total of 20 school absences. The disposition report on this petition stated that the minor’s performance on probation had been unacceptable to date because he has yet to pay off any restitution or fines, had completed no community service hours and continually missed school. In disposition, the juvenile court continued appellant on probation as a ward of the court and ordered that he serve a maximum of 60 days in juvenile hall.
On April 30, 2008, the DA filed a further petition (April 2008 petition) alleging that appellant violated his conditions of probation by being under the influence of alcohol and by failing to submit a monthly probation report form for March and April 2008. These violations came to light after the probation officer reviewed a report by the Lake County Sheriff’s Department concerning an incident on April 11, 2008, in which officers responded to a report of a large fight. Officers located appellant walking in the area of the fight. One of appellant’s eyes was red and swollen. Officers detected an odor of alcohol from appellant and his eyes were red and watery. After receiving a copy of this police report, the probation officer reviewed appellant’s file and discovered that appellant had not submitted a monthly report for March or April 2008.
The disposition report prepared in connection with the April 2008 petition states that the minor’s performance on probation has been unacceptable because the minor continues to use marijuana and alcohol, has failed to pay restitution or fines, failed to sign up for community service and has failed to report as directed. Further, the disposition report states that “minor’s performance on probation shows he has not taken his wardship seriously. The minor would benefit from the structured environment of the hall and the opportunity to catch up on his school credits. Time in the juvenile hall will hopefully impress upon the minor the need to take the terms of his wardship more seriously.” In disposition, the juvenile court continued appellant on probation as a ward of the court. In addition, the court a ordered that appellant participate in and successfully complete Juvenile Drug Court and serve a maximum period of 90 days in juvenile hall.
On November 17, 2008, the DA filed a petition alleging that on or about October 10, 2008, appellant was publicly intoxicated in a violation of Penal Code section 647, subdivision (f) (a misdemeanor). This petition was subsequently amended to add an allegation that on or about October 24, 2008, appellant was found in unlawful possession of a Sharpie “Magnum” with a black tip measuring 5/8 inches with the intent to commit vandalism and graffiti. On December 1, 2008, the DA dismissed this petition pursuant to Penal Code section 1385.
B. Current Petition
On May 20, 2009, the DA filed the current petition (May 2009 petition) alleging in Count I that on or about April 28, 2009, appellant assaulted Stephen Smith by means of force likely to produce great bodily injury, a felony in violation of Penal Code section 245, subdivision (a)(1). Count II alleged that appellant used force and violence on Stephen Smith which resulted in serious bodily injury, a felony in violation of Penal Code section 243, subdivision (d).
The detention report accompanying the May 2009 petition stated that on April 28, 2009, Clearlake police officers responded to Wal-Mart on report of an assault on a Wal-Mart employee. The victim stated that while using the rest room he observed a male washing his hands. When the victim came out of a stall, the male struck him once in the face then hit him eight or nine times as he fell to the floor. A witness observed a tall male with long blond hair exit the restroom and run past her. The victim then emerged and said he had been assaulted. The victim’s injuries, which included a broken left orbital socket and bleeding behind his eye, will require further surgeries. Appellant was identified as the assailant when police reviewed store surveillance video tapes. Subsequently, police interviewed appellant at his home. Appellant admitted the assault. He stated he had been drinking with friends and had an argument with several of them. While using the restroom at Wal-Mart, he was still upset with his friends so he punched the victim. En route to juvenile hall, appellant told police he punched the victim because the victim touched him inappropriately. Later, appellant recanted this story, again admitting that he punched the victim because he was upset with his friends and expressed his remorse for the assault.
At the arraignment hearing on May 21, 2009, appellant waived his constitutional rights and admitted to Count I (assault with force likely to produce great bodily injury) as alleged in the May 2009 petition in return for dismissal of Count II. Appellant was ordered detained and the disposition hearing was set for June 22, 2009.
The disposition report included a victim’s statement that the assault resulted in nerve damage, an “orbital blowout, ” a concussion and bleeding on the brain. The victim also reported that he has had seizures as a result of the assault, is presently on disability and does not know when he will be able to return to work. The victim reported that he is worried the assault may have lasting physical and mental effects on him, that he is currently unable to drive due to vision problems and the fear that he could have a seizure behind the wheel, and that he now feels vulnerable whenever he goes into a public restroom.
The disposition report stated that appellant’s prior performance in juvenile hall was unacceptable because he was defiant and disruptive, and caused damage to county property. Since appellant’s current admission to the hall on May 19, 2009, his performance has been acceptable, he has received no restrictions and has been given desirable work assignments. Regarding appellant’s performance on informal probation, the disposition report notes that appellant has completed none of the 60 hours of community service ordered and was dismissed from his drug program on January 22, 2009, after a second positive test for alcohol. The report states that appellant’s “substance of choice is alcohol” and that appellant admitted to consuming alcohol on weekends, usually beer. Additionally, appellant suggested that his assaultive behavior occurred in large part because he chose to drink whiskey on the night in question. The disposition report opines that appellant’s conduct in public remains unacceptable, that he has not adequately participated in court ordered rehabilitative programs, and he continues to abuse controlled substances.
In assessment, the disposition report states that appellant’s “recent assaultive behavior which resulted in serious injury to the victim demands a strong response. His continued unpredictable and now violent behavior poses an immediate threat to society. It is hoped that significant confinement time in Lake County Juvenile Hall will provide the minor with an opportunity to contemplate his grave misconduct. While in juvenile hall, the minor will be able to work toward graduation and participate in counseling in order to prevent future law violations and acts of violence.” Regarding disposition, the report recommended that appellant serve 270 days in juvenile hall and pay victim restitution following his release.
At the disposition hearing on June 22, 2009, the prosecutor stated that had he known the full extent of the victim’s injuries when filing charges, he would have filed the case in adult court. The prosecutor stated he disagreed with the disposition report and urged the court to send appellant to DJJ “based on both the seriousness of the crime and the fact that we have just exhausted our local resources. There’s nothing we can do for this minor. Spends time in the hall, has no impact on him. He’s given a chance to go to drug court, he fails out of drug court.”
Defense counsel agreed the crime was very serious and asserted it was alcohol related. She stated that appellant’s primary problem was alcohol abuse and that appellant required counseling. Defense counsel opined that DJJ would not help appellant “with his drinking problem and his blackouts.” Under questioning by defense counsel, appellant stated he felt terrible about his assault on the victim, did not remember clearly what he had done, admitted that he had “been in denial” about having a serious drinking problem and stated he needed help for his drinking problem. In rebuttal, the prosecutor noted that “there is rehabilitation available at DJJ”... [b]ut I think we need to send a message to the minor that the system is serious and the crime is very, very serious.”
The juvenile court ordered appellant committed to DJJ for a maximum period of four years and ten months. The court stated: “[W]hen I was reading the report I was surprised that this was not filed in adult court. The recommendation was for the length of 270 days. I was considering housing him at the county jail but his performance all of a sudden has improved at county jail. [¶] I agree with the district attorney’s analysis in every respect and I am also skeptical of the blackout statement.... [¶] Therefore the Court does adopt the district attorney’s request and position in all respects....” Appellant filed a timely notice of appeal on June 26, 2009.
Discussion
Appellant contends that the juvenile court’s dispositional order should be reversed because the court was overly concerned with punishment and there is insufficient evidence that he would benefit from commitment to DJJ or that DJJ could provide rehabilitative services for his benefit. Having considered the record as a whole under the appropriate standard of review, we cannot say the juvenile court abused its discretion in ordering appellant to DJJ.
The juvenile court’s decision to commit a minor to DJJ “will be reversed only when an abuse of discretion has been shown.” (In re George M. (1993) 14 Cal.App.4th 376, 379.) “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.” (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.) In particular, a commitment to the DJJ must be supported by substantial evidence in the record of 1) probable benefit to the minor, and 2) that less restrictive alternatives are ineffective or inappropriate. (In re George M., supra, 14 Cal.App.4th at p. 379.) “When determining the appropriate disposition in a delinquency proceeding, the juvenile courts are required to consider ‘(1) the age of the minor, (2) the circumstances and gravity of the offense committed by the minor, and (3) the minor’s previous delinquent history.’ [Citations.]” (In re Jonathan T. (2008) 166 Cal.App.4th 474, 484-485.) A DJJ commitment, however, may be appropriate without previous resort to less restrictive placements. (See In re Angela M. (2003) 111 Cal.App.4th 1392, 1396; see also In re Pedro M. (2000) 81 Cal.App.4th 550, 555-556.) Moreover, “[i]n evaluating the court’s exercise of discretion in committing a minor to [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.)
The juvenile court was presented with two placement alternatives, either juvenile hall as recommended by probation and urged by defense counsel, or commitment to DJJ as recommended by the prosecutor. Considering “the age of the minor, [] the circumstances and gravity of the offense committed by the minor, and [] the minor’s previous delinquent history” (In re Jonathan T., supra, 166 Cal.App.4th at pp. 484-485), the juvenile court’s choice of commitment to DJJ seems appropriate under the circumstances. In this regard, the juvenile court was faced with a 17-year old offender with a lengthy delinquent history who committed a violent, unprovoked assault on an innocent victim by means of a surprise attack in a public restroom. The victim sustained serious injuries to the head resulting in concussion, blurred vision, a broken eye socket and seizures. As of the date of the disposition hearing, the victim could not drive a vehicle and was unable to return to work as a result of injuries sustained in the attack. Appellant was the subject of his first 602 petition at age 14 and sustained informal dispositions on two offenses prior to his first petition. In disposition of his first 602 petition and for subsequent violations of probation, appellant served three separate periods of confinement in juvenile hall, each of increasing duration - 30 days (in disposition of April 2007 petition), 60 days (probation violation of October 2007) and 90 days (probation violation of April 2008). Even after his third period of confinement in juvenile hall, appellant’s performance on probation continued to be unacceptable-he failed a drug program after he twice tested positive for alcohol, continued to abuse controlled substances and completed zero hours of community service.
Moreover, the fact that three prior periods of confinement in juvenile hall, each of increasing duration, did not deter appellant from perpetrating this violent assault suggests that in appellant’s case juvenile hall is ineffective as a less restrictive alternative to DJJ. (See In re George M., supra, 14 Cal.App.4th at p. 379.) Furthermore, the disposition report stated that appellant’s “continued unpredictable and now violent behavior poses an immediate threat to society.” Such pressing concerns for public safety and protection, as well as the need to impose a punishment commensurate with the seriousness of the offense, also buttress the juvenile court’s choice of DJJ commitment. (See In re Luisa Z., supra, 78 Cal.App.4th at pp. 987-988 [appellate court evaluates the juvenile court’s exercise of discretion in committing a minor to DJJ “with punishment, public safety, and protection in mind”].)
The foregoing considerations all support the juvenile court’s selection of a DJJ commitment over another stint in juvenile hall. Nevertheless, appellant contends DJJ placement was an abuse of the trial court’s discretion because there is insufficient evidence that appellant would probably benefit from the treatment provided at DJJ, as required by section 734. In this regard, the juvenile court does not have to state its specific reasons why DJJ commitment will be of probable benefit to a minor: “Rather that determination must be supported by substantial evidence contained within the record.” (In re Robert D. (1979) 95 Cal.App.3d 767, 773.) Here, the record before the judge included the probation officer’s report on appellant. The probation report not only detailed appellant’s prior three stints in juvenile hall but also noted his problems with alcohol and drug abuse, his poor behavioral and attendance records at school and his unacceptable performance on informal probation. Also, the report identified appellant’s rehabilitative needs including significant confinement time during which appellant could work towards his high school graduation and participate in counseling directed at preventing future acts of violence. Moreover, the prosecutor stated that the local resources available for appellant’s rehabilitation had been “exhausted, ” that juvenile hall has “no impact” on appellant, and that appellant’s rehabilitation would be furthered by DJJ commitment. This record adequately supports the conclusion that the “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.)
Section 734 states: “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.”
In sum, having carefully reviewed the record, we cannot say the juvenile court abused its discretion in committing appellant to DJJ. Accordingly, the juvenile court’s dispositional order must be affirmed.
Disposition
The juvenile court’s dispositional order is affirmed.
We concur: McGuiness, P. J.Pollak, J.