Opinion
NOT TO BE PUBLISHED
Received for posting 4/23/2010
APPEAL from a judgment of the Superior Court of Fresno County No. 05CEJ601433-5V. David C. Kalemkarian, Judge.
Robert F. McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous, II, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Levy, J., and Dawson, J.
It was alleged in a supplemental juvenile wardship petition (Welf. & Inst. Code, § 777) filed August 5, 2009, that appellant, A.M., a minor, had violated the terms of his previously granted probation by associating with known gang members and failing to obey all laws. On August 20, 2009, appellant admitted the allegations. On September 17, 2009, following the disposition hearing, the court continued appellant as a ward of the court, ordered him committed to the Department of Corrections and Rehabilitation, Juvenile Justice (DCRJJ), formerly known as the California Youth Authority (CYA), and declared appellant’s maximum term of physical confinement (MTPC) to be five years eight months, based on offenses adjudicated in the previous wardship proceedings.
On appeal, appellant contends the court abused its discretion in (1) ordering appellant committed to DCRJJ, and (2) declaring an MTPC equal to the prison term that could have been imposed on an adult convicted of the same offenses as those upon which the court based appellant’s MTPC. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Except as otherwise indicated, information in this section is taken from the report of the probation officer (RPO) filed September 17, 2009.
Instant Probation Violation
On August 3, 2009, police officers made contact with a homeowner who reported he was awakened by a loud splash, and shortly thereafter discovered that his car, which he had parked in his driveway with the keys in the ignition, was submerged in his swimming pool. He told officers the “responsible parties” had fled on foot.
Shortly thereafter and a short distance away, officers took appellant and another minor into custody. Appellant told the officers the following: The previous evening, he and a friend had taken without permission a car belonging to the sister of a friend of appellant’s mother and driven it to Lemoore, where the car broke down. Appellant and his friend then walked to a house, jumped over the chain link fence, and found a car parked in the driveway with the keys in the ignition. Appellant attempted to back the car out of the driveway but he was unfamiliar with the car’s manual transmission, and he drove the car through a fence and into the pool. He was able to get out of the car and flee from the scene.
Prior Offenses and Probation Violations
Appellant was initially adjudged a ward of the juvenile court and placed on probation in May 2006, based on an adjudication of battery committed on school property in violation of Penal Code section 243.2, subdivision (a)(1). Appellant brought a BB gun to school where he shot several students, shot at others and missed, and threatened to shoot several other students. In that same proceeding, a robbery (§§ 211, 212.5, subd. (c)) allegation was dismissed with the right to comment. That allegation was based on the following: The victim reported appellant threatened to “shoot her” if she “did not give him money.” The victim feared appellant because he had threatened to shoot her with a BB gun on a previous occasion.
Except as otherwise indicated, all statutory references are to the Penal Code.
In February 2006, appellant struck a school “staff member” twice in the stomach and three times in the hands and forearms. In April 2006, appellant slapped a teacher’s aide several times and, when told to stop, “continued hitting the victim.” Each of these incidents gave rise to an allegation of battery on a school employee (§ 243.6). These allegations were later dismissed with the right to comment.
In July 2006, appellant was readjudicated a ward of the court and continued on probation based on an adjudication of a misdemeanor violation of section 243.6. In that incident, appellant began cursing and yelling at the school psychologist, and then struck him in the stomach, chest, hands, and forearms.
In December 2006, appellant was found to be in violation of probation, after police arrested him at school for being under the influence of a controlled substance and, upon searching his person, found him to be in possession of marijuana and the drug commonly known as ecstasy. He was continued on probation.
Appellant was readjudicated a ward of the court and continued on probation again in May 2007 and October 2007. In the May 2007 proceeding, appellant suffered an adjudication of grand theft (§ 487, subd. (c)). He rode his bicycle into an elementary school classroom and told the teacher, “Give me your wallet bitch or I’ll shoot you!” The victim did not have her wallet, so appellant took a ceramic bear from her desk and left. The disposition in this case included an order that he participate in a counseling program, which appellant completed in June 2007, and five days in the community work service program.
Appellant’s October 2007 adjudication was for another violation of section 243.2, subdivision (a)(1). Appellant, while at school, punched one person in the side of the face, and when the teacher told appellant to leave the classroom, he refused and “pushed the teacher in the chest area.” The court ordered appellant committed to the Juvenile Justice Campus (JJC) for 365 days.
In two incidents, in March 2008 and May 2008, respectively, appellant attacked and punched another minor. As part of the plea agreement in the instant case, these incidents did not lead to wardship proceedings.
In November 2008, appellant was again adjudicated a ward of the court, for a felony violation of section 245, subdivision (a)(1) (assault with a deadly weapon or by means of force likely to produce great bodily injury). A correctional officer at JJC observed appellant and another minor punching a third minor who was lying on the ground in a fetal position. When the officer attempted to separate appellant and the victim, appellant initially “stepped back,” but then “came back towards the victim who was still on the floor.” The victim suffered a bloody nose and multiple bumps on his forehead.
Information in this subsection is taken from the two psychological reports discussed.
A psychological evaluation report dated March 27, 2006, submitted by clinical psychologist Valerie Forward, Ph.D., indicated the following: Appellant’s self-reported history and performance on various psychological tests “support the previous diagnoses [of] Bipolar Disorder,... Attention–Deficit/Hyperactivity Disorder,... while also supporting a diagnosis of Conduct Disorder,... as well as Sexual Abuse of a Child....”
A “Behavioral Health Court Initial Psychiatric Evaluation” prepared by Karen Kraus, M.D., which was based on evaluations conducted in April and May 2007, indicated the following: Appellant suffers from “Bipolar Disorder, NOS (Severe Mood Dysregulation Disorder)[,] Attention-Deficit Hyperactivity Disorder, Combined Type, by history[,] Conduct Disorder, Childhood Onset Type[,] Substance Abuse (Marijuana, Ecstasy).” Appellant had been taking various drugs, including Adderall, pursuant to prescription. Dr. Kraus stated: “[T]here is some question regarding the overall benefit of Adderall. While this medication has provided some benefit for hyperactivity and attention, it may be exacerbating mood instability and/or anxiety.”
Dr. Kraus recommended, among other things, that appellant receive “individual therapy” and “close psychiatric following for medication management,” and that “[his] family continue with family therapy.”
Additional Background
The RPO, prepared by Deputy Probation Officer Mark Cutshall, contained no information regarding programs offered at DCRJJ that could benefit appellant. At the disposition hearing, Deputy Probation Officer Jill Quadro stated that Cutshall “was in contact with [DCRJJ]” and was advised of the following: DCRJJ provides “three levels” of mental health care, viz., “an outpatient program, a residential program, and an inpatient program”; “[e]ach level has different programs to address the minor’s needs”; “Fresno County Mental Health” will provide a psychological evaluation report to DCRJJ; and DCRJJ will “then conduct their own evaluation to determine which level of care is most appropriate.”
Appellant told the probation officer he was “an active ‘Northside Bulldog’ gang member,” and had been a member for three years.
DISCUSSION
Commitment to DCRJJ
Appellant contends the court abused its discretion in ordering the DCRJJ commitment. This contention is without merit.
Commitment to DCRJJ requires a two-part showing. First, “it is required that there be evidence in the record demonstrating probable benefit to the minor....” (In re Teofilio A. (1989) 210 Cal.App.3d 571, 576; accord, In re Pedro M. (2000) 81 Cal.App.4th 550, 556.) Second, there must be “evidence supporting a determination that less restrictive alternatives are ineffective or inappropriate.” (Ibid.) 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 Angela M. (2003) 111 Cal.App.4th 1392, 1396; In re Asean D.(1993) 14 Cal.App.4th 467, 473.)
“‘In determining whether there was substantial evidence to support the commitment, we must examine the record presented at the disposition hearing in light of the purposes of the Juvenile Court Law. ([Welf. & Inst. Code,] § 200 et seq.; [citation].)’” (In re Lorenza M. (1989) 212 Cal.App.3d 49, 53.) “In 1984, the Legislature amended the statement of purpose found in section 202 of the Welfare and Institutions Code. It now recognizes punishment as a rehabilitative tool and emphasizes the protection and safety of the public.” (Id. at p. 57.) This recognition marked a “change in emphasis,” the “significance [of which] is that when we assess the record in light of the purposes of the Juvenile Court Law [citation], we evaluate the exercise of discretion with punishment and public safety and protection in mind.” (Id. at p. 58; accord, In re Luisa Z. (2000) 78 Cal.App.4th 978, 987-988; In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684 [“[a] fundamental premise of delinquency adjudication is that the court must focus on the dual concerns of the best interests of the minor and public protection”]; In re Asean D., supra, 14 Cal.App.4th at p. 473 [“the 1984 amendments to the juvenile court law reflected an increased emphasis on punishment as a tool of rehabilitation, and a concern for the safety of the public”].) And while the Juvenile Court Law contemplates a progressively restrictive and punitive series of dispositions, there is no absolute rule that the court may not impose a particular commitment until less restrictive placements have actually been attempted. (In re Asean D., supra, 14 Cal.App.4th at p. 473; In re Teofilio A., supra, 210 Cal.App.3d at p. 577.)
Welfare and Institutions Code section 202 provides in relevant part: “Minors under the jurisdiction of the juvenile court as a consequence of delinquent conduct shall, in conformity with the interests of public safety and protection, 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. This guidance may include punishment that is consistent with the rehabilitative objectives of this chapter.” (Welf. & Inst. Code, § 202, subd. (b), italics added.)
Appellant argues the record does not support the conclusion that any alternative disposition less restrictive than DCRJJ commitment would be ineffective because (1) “[t]he efficacy of these programs was doubtful”; and (2) “[t]here is no indication in the record that Probation or the juvenile court took any meaningful steps to address” Dr. Kraus’s concerns and recommendations, the “foremost” of which was her concern with the prescribed use of the drug Adderall for appellant. We disagree.
At the disposition hearing, appellant’s mother told the court that one of the programs offered was directed more toward her and appellant’s siblings than toward appellant, and “[t]here wasn’t a lot of intensive therapy or working with [appellant] individually.”
Appellant’s mother’s statements at the disposition hearing do not compel the conclusion that appellant received low-quality rehabilitative services. And, there is nothing in the record to compel the conclusion that appellant’s myriad of mental health problems or his numerous instances of misconduct were the result of any particular medication he was or was not taking. But more fundamentally, as the court noted, “for good or bad, better or worse, perfect or not, all of the efforts that have been made at the local level have failed to rehabilitate [appellant], because while on probation he committed this new offense.” The record establishes that appellant has continued to reoffend despite numerous grants of probation and other rehabilitative efforts at the local level, including three separate commitments to JCC, placement on the electronic monitoring program, anger management counseling, and commitment to and completion of, the Behavioral Health Court program. Based on these factors, the juvenile court reasonably could have concluded that any placement less restrictive than DCRJJ commitment would be rehabilitatively ineffective.
Moreover, at least two factors support the conclusion that a disposition less restrictive than DCRJJ commitment would be ineffective or inappropriate because a placement less restrictive than DCRJJ commitment would not be adequate to hold appellant accountable for his actions and/or provide for the safety and protection of the public. First, although most of appellant’s offenses were misdemeanors, his offenses were numerous, many were violent, and two were serious enough to be classified as felonies. The most recent offense was an aggravated assault in which appellant, along with another minor, punched the victim who was lying on the ground in a fetal position not defending himself, and unable to fight off his attackers. (In re Samuel B. (1986) 184 Cal.App.3d 1100, 1104, overruled on other grounds in People v. Hernandez (1988) 46 Cal.3d 194, 206, fn. 14 [in determining disposition in delinquency proceeding, “gravity of the offense is always a consideration with other factors”]; Welf. & Inst. Code, § 725.5 [factors to consider in determining appropriate disposition include “the circumstances and gravity of the offense committed by the minor”]; In re Jonathan T. (2008) 166 Cal.App.4th 474, 484-485 [in determining disposition in delinquency proceeding, factors to be considered include minor’s previous delinquent history].) Second, the record contains substantial evidence that appellant was an active member of a criminal street gang. (Cf. In re John H. (1978) 21 Cal.3d 18, 27 [CYA commitment upheld based in part on minor’s gang involvement]; In re Sergio R. (1991) 228 Cal.App.3d 588, 602-603 [same].)
Appellant downplays the seriousness of his past offenses; he suggests his criminal conduct has been “more bizarre than violent,” and the result of poor “impulse control” rather than “carefully crafte[d] criminal plan[ning].” He is, he asserts, “precisely the kind of ‘unsophisticated, mildly delinquent minors’ who should not ‘commingle’ with the ‘more criminally oriented groups of delinquents committed to [DCRJJ]’ [citation.]”
We recognize that “‘[t]he courts have persistently shown a realistic concern for commingling of unsophisticated, mildly delinquent minors “with the more criminally oriented groups of delinquents committed to California Youth Authority,” thereby converting them to trained and sophisticated criminals.’” (In re Teofilio A., supra, 210 Cal.App.3d at p. 577.) This concern can be traced back to In re Aline D. (1975) 14 Cal.3d 557, where our Supreme Court noted that CYA guidelines include the following “‘inappropriate cases’ for commitment[:]... unsophisticated, mildly delinquent youths, ‘for whom commingling with serious delinquents who make up the bulk of the Youth Authority population might result in a negative learning experience....’” (Id. at pp. 564-565.) However, as this court noted in In re Lorenza M, supra, 212 Cal.App.3d at page 57, Aline D. “predate[s] the amendment of former Welfare and Institutions Code section 502 (now § 202),” which, as indicated above, “now recognizes punishment as a rehabilitative tool and emphasizes the protection and safety of the public.”
In In re Lorenza M., supra, 212 Cal.App.3d 49, the juvenile court ordered a young, mildly delinquent minor committed to CYA, following an adjudication of vehicle theft, after the court found that such commitment would be of probable benefit and that “‘all local less restrictive programs and forms of custody [would be]... inappropriate dispositions....’” (Id. at p. 52.) This court upheld the disposition. Referring to “the use of punishment as a rehabilitative tool,” as provided in the 1984 amendment to the Juvenile Court Law, and noting that Aline D. predated the amendment, we stated, “[w]hether or not Lorenza is a serious juvenile offender or a ‘criminal,’ her commitment is consistent with the current purposes of the Juvenile Court Law.” (Id. at p. 58.)
Appellant’s history reveals misconduct far more serious, violent, and extensive than that of the minor in LorenzaM. As in Lorenza M., appellant’s conduct justified the court’s implied finding that based on considerations of public safety and the statutorily sanctioned use of punishment as a rehabilitative tool, a disposition less restrictive than DCRJJ was not appropriate.
Appellant also argues that the record does not establish that a DCRJJ commitment would be of probable benefit to him because, he contends, (1) there is no indication in the record that DCRJJ is aware of Dr. Kraus’s concerns regarding Adderall, and therefore no indication that DCRJJ “would properly address [appellant’s] medication management”; and (2) there is no indication in the record, with the exception of the probation officer’s brief statements regarding services available to DCRJJ, that “[DCRJJ] had the resources to address [appellant’s] ongoing psychological problems.” We disagree.
With respect to the first of these contentions, the court reasonably could credit Deputy Probation Officer Quadro’s statement that both Fresno County and DCRJJ would conduct psychological evaluations of appellant. Moreover, Welfare and Institutions Code section 1120, subdivision (b), provides: “The [DCRJJ] shall assess the educational needs of each ward upon commitment and at least annually thereafter until released on parole. The initial assessment shall include a projection of the academic, vocational, and psychological needs of the ward and shall be used both in making a determination as to the appropriate educational program for the ward and as a measure of progress in subsequent assessments of the educational development of the ward.” (Italics added.) And “[i]t is presumed that official duty has been regularly performed.” (Evid. Code, § 664.)
As to the second of appellant’s contentions regarding the question of the probable benefit of DCRJJ commitment, the question is much closer. As indicated above, the RPO is silent on what particular programs DCRJJ has that can benefit a minor with appellant’s significant mental health needs, and the only indication in the record on this point is Deputy Probation Officer Quadro’s conclusory statement that DCRJJ has such programs. However, as is also indicated above, appellant stands adjudicated of numerous offenses, including two felonies, and the Juvenile Court Law recognizes punishment as a “rehabilitative tool.” (In re Lorenza M., supra, 212 Cal.App.3d at p. 53.) On this record, the juvenile court reasonably could have concluded appellant was in need of the kind of “guidance” that comes with “punishment that is consistent with the rehabilitative objectives of [the Juvenile Court Law]” (Welf. & Inst. Code, § 202, subd. (b)), and that DCRJJ commitment could provide that guidance. Thus, in our view, the evidence was sufficient to establish it was probable that DCRJJ commitment would benefit appellant.
The MTPC
Appellant contends the juvenile court abused its discretion in setting the MTPC, based on the instant offense and offenses adjudicated in prior wardship proceedings, at five years eight months, a period equal in length to the prison term that could have been imposed on an adult offender convicted of the same offenses. We disagree.
Appellant’s MTPC was calculated as follows: the four-year upper term on his 2008 aggravated assault, eight months on his 2007 grand theft adjudication and four months on each of his 2007 and 2005 section 243.2, subdivision (a)(1), adjudications, and his 2006 adjudication of battery on a school employee.
Welfare and Institutions Code section 731 has long provided that a minor may not be committed to DCRJJ “for a period of time in excess of the maximum period of imprisonment that could be imposed upon an adult convicted of the offense or offenses that brought or continued the minor under the jurisdiction of the juvenile court.” Effective January 1, 2004, the Legislature added to what is now subdivision (c) of Welfare and Institutions Code section 731, the following: “A ward committed to [DCRJJ] also may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter or matters that brought or continued the ward under the jurisdiction of the juvenile court, which may not exceed the maximum period of adult confinement as determined pursuant to this section.” The 2004 amendment to Welfare and Institutions Code section 731 was “intended to give the juvenile court discretion to impose less than the adult maximum term of imprisonment when committing a minor to [DCRJJ] and to require the court to set that term of confinement based on the facts and circumstances of each case. [Citation.]” (In re Jacob J. (2005) 130 Cal.App.4th 429, 437, disapproved on another point in In re Julian R. (2009) 47 Cal.4th 487, 499; accord, In re Carlos E. (2005) 127 Cal.App.4th 1529, 1533 [amendment “unmistakably requires the trial court to set (an MTPC) in CYA based upon the facts and circumstances of the matter”].)
“[J]udicial discretion is... ‘the sound judgment of the court, to be exercised according to the rules of law.’ [Citation.]... [T]he term judicial discretion ‘implies absence of arbitrary determination, capricious disposition or whimsical thinking.’ [Citation.] Moreover, discretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered. [Citations.]” (People v. Giminez (1975) 14 Cal.3d 68, 72.) The juvenile court’s exercise of its discretion in setting the MTPC “must be tied to the purposes of the juvenile system, which include the protection of the public as well as the rehabilitation of the minor.” (In re Carlos E., supra, 127 Cal.App.4th at p. 1542.) And, as indicated above, “the statement of purpose found in section 202 of the Welfare and Institutions Code” evinces a “recogni[tion] [of] punishment as a rehabilitative tool....” (In re Lorenza M., supra, 212 Cal.App.3d at p. 57, fn. omitted.)
In setting the MTPC at the adult maximum, the court stated it had “considered the facts and circumstances not only of the underlying offense but also of the violation of probation.” Specifically, the court noted, the instant offense “involved a situation where another minor in custody was seriously injured in what appeared to be an unprovoked attack,” and the probation violation “involve[ed] significant damage and... a loss of great monetary value.” The court also noted appellant’s “significant history with the Court”; his “unsatisfactory” performance on probation; his “several prior custodial commitments”; and the fact that appellant was on probation at the time of the instant offense. The court concluded, “[a]fter weighing all the facts and circumstances, the Court does set the [MTPC] at five years and eight months, which is the maximum.”
The foregoing demonstrates that under the “facts and circumstances of the... matters which brought or continued [appellant] under the jurisdiction of the juvenile court” (Welf. & Inst. Code, § 202, subd. (b)), the setting of the maximum allowable MTPC was entirely reasonable in light of the purposes of the Juvenile Court Law and the statutory recognition of punishment as a rehabilitative tool. Appellant has not demonstrated an abuse of discretion.
DISPOSITION
The judgment is affirmed.