Opinion
H029693
5-30-2007
In re ANDREW C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ANDREW C., Defendant and Appellant.
NOT TO BE PUBLISHED
Minor Andrew C. was first committed to Californias Youth Authority (CYA) at the age of 12 after quickly failing placements in four group homes. The Monterey County Superior Court rescinded this initial commitment after two months. The juvenile court again committed minor to CYA at the age of 13 after minor had failed in a home placement, three times in two group homes, and at the Monterey County Probation Youth Center.
We recognize that, in a governmental reorganization, on July 1, 2005, the Department of the Youth Authority became the Division of Juvenile Justice and was placed within the newly created Department of Corrections and Rehabilitation. (Gov. Code, §§ 12838, 12838.5; Welf. & Inst. Code, § 1710, subd. (a).) For convenience, we will continue to use the "CYA" acronym. As quoted below (post, p. 13 ), relevant statutes still refer to the "Department of the Youth Authority."
On appeal, minor challenges his CYA commitment, arguing that it is not supported by the factors on which the court relied and that the court overlooked or improperly weighed other factors precluding this commitment. In support of these arguments, he requests us to recognize current conditions at CYA by taking judicial notice or additional evidence on appeal. Minor also contends that the juvenile court failed its obligation under Welfare and Institutions Code section 241.1 to determine whether minor should have been treated as a dependent, and not a delinquent, child. For the reasons stated below, we will affirm the CYA commitment.
Unspecified section references are to the Welfare and Institutions Code.
THE INITIAL CYA COMMITMENT
Minor was initially committed to CYA on October 6, 2004, after rapidly failing four group home placements and cursing the juvenile court judge who was offering him one last chance. Since minors commitment was based on his complete history, we must review the details.
This initial commitment led to an appeal (In re Andrew C. (Nov. 3, 2005, H028099) [nonpub. opn.]) which this court reviewed pursuant to People v. Wende (1979) 25 Cal.3d 436. On May 3, 2006, we granted minors request to take judicial notice of documents filed in connection with his prior appeal.
Minor, born in September 1992, first came to the attention of Monterey County law enforcement on September 30, 2003, for attempting with a friend to steal a cap gun, a calculator, and other small items from a Castroville supermarket. A sheriffs deputy contacted minor, who was apologetic and crying. The boys were not cited due to their youth.
On May 16, 2004, minor and his mother fought about him carrying groceries and her giving him a snack. He yelled, cursed, smeared food on the walls, punched two holes in the bathroom door, ripped the bedroom door from its hinges and broke it on the ground, and punched her nose. Minor was taken to Monterey County Juvenile Hall.
According to his mother, minor was a good boy until his alcoholic father was arrested in 2003 for vehicle theft. Minor became uncontrollable after his sister Stephanie was removed from their home in 2004. Stephanie, who is one year older than minor, was removed due to ongoing conflicts with their mother and allegations of sexual abuse by her step-grandfather.
A juvenile court petition was filed in Monterey County Superior Court on May 18, 2004. On May 24, 2004, minor admitted damaging property (Pen. Code, § 594, subd. (b)(1)), and misdemeanor assault (Pen. Code, § 242) and petty theft (Pen. Code § 484). Another charge, based on an alleged threat to blow up his middle school on February 19, 2004, was dismissed.
According to the court minutes of May 24, 2004, the vandalism charge would be reduced to a misdemeanor if the door damage proved to be less than the $400 value alleged. As described below (post, p. 6 ), the court determined the crime to be a misdemeanor on December 3, 2004.
A probation report dated June 3, 2004, described minors offenses and his background. It recommended a psychological assessment, a section 241.1 investigation, a section 241.2 hearing, and probation without wardship. The report stated that criminal proceedings against Stephanie for brandishing a knife against her mother were dismissed when she was found suitable for dependency court. She had a DSS case worker and was in a foster home.
Minor was declared a ward of the court at a dispositional hearing on June 7, 2004. The court found that he should be removed from his parents custody to be placed in a foster home, group home, or 24-hour private institution as determined by the probation officer. The court did not order a section 241.1 investigation. At a hearing on June 21, 2004, the court adopted a case plan that did not include a section 241.1 investigation. The court confirmed his existing placement.
Minor cycled through four short stays at four group homes, always returning to juvenile hall and eventually admitting in juvenile court violating probation in each placement. He was first placed in Pacific Coast Group Homes in Ben Lomond, California on June 14, 2004. One week later, he refused to return to this group home after his court hearing on June 21, 2004.
On June 30, 2004, minor was placed in Ghandi House in Watsonville, California. He began cursing and insulting staff members on July 8, 2004. He was terminated from this placement after one month, on July 30, 2004, for continuous defiant and non-compliant behavior.
On August 13, 2004, minor was placed in Karis House in Visalia, California. He was terminated from this placement less than two weeks later on August 25, 2004, due to defiant and noncompliant behavior, and was lodged in the Tulare County Juvenile Hall before returning to Monterey County Juvenile Hall.
On September 7, 2004, minor was placed in the Central Coast Group Home in Prunedale, California. One week later, on September 15, 2004, he was terminated from this placement, due to negative behavior including drinking alcohol and stabbing another resident with a pencil.
At a hearing on September 24, 2004, minor admitted this violation of probation. His attorney urged a section 241.1 referral. The court stated, "Ill look at it at disposition. Im very familiar with the dynamics between Andrew and Stephanie."
Prior to the disposition hearing, the court received a psychological evaluation by Elizabeth Lee dated September 5, 2004, and a supplemental probation report dated October 1, 2004. Lee observed and concluded as follows. Minors father used and sold drug, fought other men, and beat his wife and children. "He looks up to his father and appears to be emulating his behavior, including treating females with contempt." Minor seemed to enjoy the negative attention generated by making vulgar remarks. He expressed no remorse about hitting his mother. He was upset about his father and older sister being out of the household. Minor did not believe that Stephanie was molested. The district attorney had declined to prosecute the step-grandfather for reasons unknown to Child Protective Services.
At his middle school, minor ranked 135 out of 146 students. He did not have special education classes. He simply did not care about school. His school teacher said he was extremely intelligent and "maybe be destined to become a lawyer due to his obsession with finding loopholes."
Dr. Lee continued as follows. Minor made false claims about auditory hallucinations. He had little respect for authority figures other than his father. "[H]is bravado appeared contrived, as perhaps might be expected from a 4 ¼ foot tall, 90 pound eleven year old boy saying that no one could stop him from doing whatever he wanted." "Although [minor] is more aggressive than average, his behavior appears to be primarily volitional rather than being driven by uncontrollable impulses." He "is at high risk for developing an antisocial personality disorder as an adult unless he receives appropriate intervention." He needs a more structured program than Child Protective Services would offer. "His profile is more similar to a probation child than to a victim of abuse." He has a moderate conduct disorder. A group home placement is appropriate, although he would try to sabotage it. He tried to get kicked out of group homes so he could see his sister Stephanie in juvenile hall.
Minor told the probation officer that he did not want to go to another group home. If he could not live with his paternal grandmother, he wanted to be sent to the Youth Center. The probation officer tried to explain the necessity of minor succeeding in a group home. Minor stated that he planned to refuse placement, "even if it means having to insult the judge in order to `get his own way. " The probation officer recommended that, due to minors young age, he "will benefit from a structured environment such as a group home placement that would provide minor with the education and appropriate counseling that he sorely needs. The minor has not remained in any one placement long enough to establish a treatment program to help him."
At the outset of the disposition hearing on October 6, 2004, the court announced that its tentative decision was to send minor to CYA. Minors attorney, deputy public defender Susannah McNamara, argued that the morning of the hearing, minor seemed like a different person. He said he was ready to accept placement and succeed in it. The court stated that Dr. Lees report was a condemnation of minor as sophisticated and uncontrollable. He had manipulated the system to go where his sister was. After reciting more of Dr. Lees report, the court stated, "Here he is again. He is out of control, he lacks remorse, hes a threat to public safety. Hes twelve years old. Told me flat out he didnt want to return to placement one time. I will give this young man one last chance at placement."
Minor interjected, "Fuck you." This colloquy followed.
"THE COURT: That tells me exactly what I wanted.
"THE MINOR: Little bitch.
"THE COURT: This minor
"THE MINOR: You think anybody I bitch.
"THE COURT: As I indicated. Hes out of control.
"THE MINOR: Shouldnt fuck up already.
"THE COURT: Hes a threat to public safety.
"THE MINOR: Im not a threat to nobody. I just want to go home. Little bitch want to send me everywhere.
"THE COURT: Local programs are too short for this minor.
"THE MINOR: Fuck up, already.
"THE COURT: I will
"THE MINOR: I will, bitch."
The court committed minor to CYA for a maximum time of three years and four months, with minor once more interjecting "little bitch." The court found that the educational records did not indicate that minor had exceptional needs.
At a hearing on October 20, 2004, the court denied a motion for a stay and for reconsideration. At a hearing on December 3, 2004, on minors motions, the court reduced the vandalism offense to a misdemeanor because the damages to the door were unascertainable and reduced the maximum confinement time at CYA to 1 year 4 months.
On December 16, 2004, minor filed a motion to set aside the CYA commitment based on a new psychological evaluation by Dr. Thomas Marra dated October 28, 2004, and on a letter by minor apologizing to the court and asking for another chance. Minors letter was written the day after his outburst at the court hearing. Marra concluded that minor is a "Hispanic boy who has low frustration tolerance, highly impulsive behavior, low control over his anger, and who has thought content that supports his tendency to act out. . . . He seems to have the attitude that he who has the loudest bark will be threatened the least, and he attempts to repress his own underlying feelings of vulnerability through bravado. This is not unusual in the Hispanic male population, but seems to be excessively utilized as a defense mechanism in [minors] case." He has a moderate conduct disorder. Marra recommended placement in a group home and individual psychotherapy.
Despite being 12 years old, minor was accepted into CYA. An individual change plan dated December 22, 2004, recommended that minor attend individual and group counseling for anger management, abandonment, grief, victim awareness, and "negative peer/gang awareness" and educational programs. The plan noted that he was too young to be eligible for camp and that he did not require mental health services.
At a hearing on December 30, 2004, the court addressed minor directly. Minor apologized for disrespecting the judge at the prior hearing. He said he did not like CYA because of the fighting. He had learned that his fight with his mother and destruction of his house was a dumb thing to do. The court stated that minor had learned some wrong things from his father and he needed to change. "And if Im not convinced you can change, Im keeping you in CYA." Minor said he could change. The court said minor would not be returned to CYA, but he would not return home either until he made some changes. The CYA commitment was rescinded and minor was continued as a ward of the court, to be placed by the probation officer.
THE CURRENT CYA COMMITMENT
A supplemental probation report for a court hearing on January 14, 2005, stated that minor had not been accepted into two programs due to lack of an "IEP." He remained in juvenile hall and there were no incident reports. The juvenile hall staff was to complete an IEP on January 18, 2005.
"IEP," which was used in this record in various contexts by counsel, probation officers, and the juvenile court, is an acronym for both an "Individualized Education Plan" (e. g., Ed. Code, § 54747) and an "individualized education program" (Ed. Code, § 56847, subd. (c)). This slight ambiguity lacks significance, as the two phrases have virtually identical meanings.
At a hearing on January 31, 2005, the court noted that an IEP had not been completed. The Office of Education had difficulty in ascertaining from minors mother his last known school. Minor had been accepted for immediate placement at the Seawind Group Home (Seawind) in Seaside, California without an IEP, but the court noted that one should be completed anyway.
Minor cycled through three short stays in two group homes, again returning to juvenile hall and eventually admitting in juvenile court violating probation in each placement. After being placed with Seawind on January 31, 2005, he left without permission the morning of February 16, 2005, after hearing that probation would be called because he had been disrespectful to the staff. His mother brought him in the same morning.
Minor was returned to Seawind on February 22, 2005. He left Seawind again on March 6, 2005, after fighting with a 17-year-old resident. His grandmother brought him to the probation department the following day.
On March 29, 2005, minor was placed in KTDA Group Home in Fresno, California. One week later, on April 8, 2005, minor fought with another home resident. In the course of this fight, minor struck a staff member in the face. Minor threatened and cursed three police officers who were called to pick him up. In the patrol car, he kicked the windows and spat all over. At a hearing in Fresno County on May 4, 2005, minor admitted the misdemeanors of resisting an executive officer (Pen. Code, § 69), battery (Pen. Code, § 242) and vandalism (Pen. Code, § 594, subd. (a)). The case was transferred from Fresno to Monterey County for disposition.
At a hearing in Monterey County on May 11, 2005, minor admitted violating probation by failing in a new placement and sustaining new charges.
Minor told a Monterey County probation officer that the fight in Fresno started when another resident taunted minor about his sister. During this interview, minor said he wanted to live with his grandmother. He became agitated when asked if his mother had visited him in juvenile hall. He said only his grandmother had visited him. He said he wanted to be sent to CYA, so he could do his time and be released. A case plan dated May 26, 2005, recommended that minor be placed in a "[h]ighly structured" and "nurturing environment." The accompanying probation report observed that minor "is very street-wise for his young age. He needs a program that will be able to provide him with intensive therapy to facilitate controlling the minors angry and often volatile behavior."
At a hearing on June 1, 2005, the court suspended the case plan and placement for 30 days and released minor to his grandmothers custody. On June 27, 2005, minors grandmother brought him to a medical center. Minor was hallucinating after having smoked methamphetamine the night before. At a hearing on June 30, 2005, minor admitted this violation of probation. He was continued as a ward of the court and was released to his parents pending further hearings.
On July 18, 2005, minor and two other minors who were on probation threw a rock at the personal vehicle of an off-duty deputy probation officer. On July 19, 2005, as minor was being booked into juvenile hall, he threatened to kill three probation officers with a firearm upon release from custody. This conduct resulted in three felony charges of attempting to dissuade executive officers by threats, another felony charge of actively participating in Norteño gang activity (Pen. Code, § 186.22, subd. (a)), and damaging (Pen. Code, § 594, subd. (b)(2)) and attempting to damage an occupied vehicle (Veh. Code, § 23110, subd. (b)).
At a hearing on August 2, 2005, minor admitted violating probation by associating with other probationers, by one felony count of threatening an executive officer, and by committing a newly alleged misdemeanor of removing a vehicle part (Veh. Code, § 10852). The other charges were dismissed, with the facts to be considered at disposition.
Minor told a probation officer that his latest misconduct was attributable to drinking he had done the previous night. Minor continued to blame his mother for calling the police for his first arrest. The Interagency Placement Committee recommended placement in the Monterey County Probation Youth Center (Youth Center).
At a hearing on August 15, 2005, the court committed minor to the Youth Center. On September 9, 2005, minor received an adverse behavioral report for disrupting class and being disrespectful. On October 2, 2005, minor escaped from the Youth Center (§ 871), disobeying instructions to stop and climbing over a fence. Four days later, he was taken into custody at his grandmothers house. At a hearing on October 20, 2005, minor admitted violating probation by committing this new crime. The matter was scheduled for a dispositional hearing on November 4, 2005.
Minor told a probation officer that he left the Youth Center because the program was not working for him. He had conflict with other residents and did not want to be a snitch. He would like to live with his grandmother. He would prefer going to CYA to being committed to the Youth Center.
According to a supplemental probation report, minor was an eighth grader with sixth grade math skills and fifth grade reading skills. He was maintaining a B average in his classes. A CYA official stated that CYA would regard minor as a category six offender. This means he would have to serve one year of custody before being eligible for parole. While in custody, he would attend school and participate in counseling for gang awareness, substance abuse, victim impact, and anger management. The placement committee and the probation officer considered CYA but recommended a recommitment to the Youth Center, noting minors age of 13 and that he was doing well academically and in therapy at the Youth Center.
If this assessment proved accurate, minor may currently be on parole.
A hearing on November 4, 2005 was continued due to the illness of minors regular attorney, McNamara. She was still sick on November 16, 2005, but a hearing proceeded with minor represented by Deputy Public Defender Alex Cardinale. At the hearing, minor asked the court to give him another chance and said that he was not doing anything bad.
Minor said: "Your Honor, I was going to ask you if I could get another chance and try and do better, because last time my sister—like I wanted to help her out because she was in trouble, she wasnt doing good, so I went to the house to go help her. [¶] Im not using that as an excuse, but that was the only reason I got in trouble, besides that I wasnt doing anything bad."
The court stated that it had read and considered the reports by the probation officer and by the juvenile hall. The court described the following. In the past 16 months, minor had appeared in court 11 times. He had failed six placements in five group homes (Pacific Coast, Ghandi House, Central Coast, Seawind (twice), and KTDA). He got a look at CYA before that prior commitment was recalled. He failed in a home placement and he absconded from the Youth Center. In two group homes he physically assaulted other residents. In one, he struck a staff member. On another occasion, he also threatened and resisted executive officers.
The court committed minor to CYA, finding that less restrictive alternatives had failed. The court further found that he is "out of control" and "presents . . . a constellation of oppositional and aggressive behaviors." His prior placements, including the Youth Center, were unable to control him. He has made no meaningful commitment to change. He has announced that he does not want the Youth Center. CYA had programs that would probably benefit minor. He had no special educational needs. His maximum time of confinement was five years. "And less than four months ago he was here for threats to kill Probation Officers and use a gun to do it. He represents a significant threat to public safety." He had accumulated 444 days of custody credit.
Attorney Cardinale stated that she would not have appeared in place of minors regular attorney, McNamara, had she known the court was considering a CYA commitment. She had heard the court was inclined to follow the probation report recommendation of a Youth Center recommitment. She asked that McNamara be allowed to argue that CYA was unable to provide minor with an education. She stated her belief "that the Youth Authority, or probably probation on the — before sending him to the Youth Authority, should file an IEP on Andrew and determine whether he is SED. It certainly appears to me in my brief statements with Andrew that hes SED and that he should have been provided with special education services." The court scheduled a hearing on a motion to reconsider and ordered that minor not be transported until the hearing.
As explained below (post, p. 19 ) "SED" is an acronym for serious emotional disturbance, which may qualify as a disability requiring an individualized education plan.
Prior to the hearing on December 7, 2005, the court received a letter from minor, a letter from an alternative education teacher, and incident reports from juvenile hall. The teacher characterized minor as a "very bright student" who was learning to seek positive instead of negative attention. The incidents were that on December 6, 2005, minor cursed a teacher and was disrespectful, he disrupted a physical education class by yelling out his window, and he cursed and yelled at the officer who closed his window.
Minor appeared with Attorney McNamara on December 7, 2005. McNamara argued against a CYA placement as follows. Minor had just turned 13. His problems resulted from anger and impulsiveness. He curses and threatens, but does not carry out his threats. He was doing well in his last stay in juvenile hall until the last couple of days. Minor was one of the younger residents at the Youth Center and there is a recognized problem with older kids picking on younger ones. The average age there is 16 to 17. CYA is also designed for older children. When minor was there before, he was the youngest one at Preston. The parole agent in charge of minor told her that minor was not enrolled in math, English, or social studies because those classes were set up for high school kids. He had a computer class, PE, and a home room teacher. McNamara requested a placement with minors grandmother, after putting some support systems in place, such as the placement intervention program. She realized that he was going to lose his temper and "mouth off" again. As of that morning, minor did want to go to the Youth Center, contrary to what he told the probation officer.
After hearing from minors father and a teacher, the court denied the motion to change minors commitment. The teacher, Evelyn Garcia, had been mentoring minor on a weekly basis. She said that he was still "workable" and was not like some of the others who she thought should be at CYA "because of their sophistication and their gang involvement and some of the attitude . . . ." The court concluded, "I find no reason to change the commitment or to alter any of the findings previously made by the court."
STATUTORY FRAMEWORK
A minor can be adjudged a ward of the juvenile court for committing a crime. (§§ 602, 725, subd. (b).) The juvenile court has a wide range of options available for placing its wards, including unsupervised probation with all appropriate conditions, return to the home under the supervision of a probation officer, a community care facility, (§ 727, subd. (a)), "a juvenile home, ranch, camp, or forestry camp," or "the county juvenile hall" (§ 730, subd. (a)), or "the Department of the Youth Authority." (§ 731; cf. § 202, subd. (e)(5).)
In determining the appropriate disposition, 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 keep in mind the manifold objectives of the juvenile law, partially expressed in section 202, subdivision (b). "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. If a minor has been removed from the custody of his or her parents, family preservation and family reunification are appropriate goals for the juvenile court to consider when determining the disposition of a minor under the jurisdiction of the juvenile court as a consequence of delinquent conduct when those goals are consistent with his or her best interests and the best interests of the public." The statute also states: "`Punishment, for the purposes of this chapter, does not include retribution." (§ 202, subd. (e)(5).)
"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.)
As courts have interpreted these statutes, CYA has been regarded as the last resort when other less restrictive placements have failed or are inappropriate. (In re Ricky H. (1981) 30 Cal.3d 176, 183.) However, "circumstances in a particular case may well suggest the desirability of a Youth Authority commitment despite the availability of such alternative dispositions as placement in a county camp or ranch." (In re John H. (1978) 21 Cal.3d 18, 27; In re Eddie M. (2003) 31 Cal.4th 480, 507; In re Tyrone O. (1989) 209 Cal.App.3d 145, 151.) Although the juvenile court states the maximum period of physical confinement (§ 726, subd. (c)), a "commitment to CYA `removes the ward from the direct supervision of the juvenile court [after which] it [is] the function of CYA to determine the proper length of its jurisdiction over a ward." (In re Owen E. (1979) 23 Cal.3d 398, 404.)
STANDARD OF REVIEW
As this court reiterated in In re Tyrone O., supra, 209 Cal.App.3d 145 at page 151: " `The decision of the juvenile court may be reversed on appeal only upon a showing that the court abused its discretion in committing a minor to CYA. [Citations.] 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 . . . and will not disturb its findings when there is substantial evidence to support them. [Citations.] (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.)"
"Because commitment to CYA cannot be based solely on retribution grounds (§ 202, subd. (e)(5)), there must . . . be evidence demonstrating (1) probable benefit to the minor and (2) that less restrictive alternatives are ineffective or inappropriate." (In re Michael D., supra, 188 Cal.App.3d 1392, 1396; In re Teofilio A. (1989) 210 Cal.App.3d 571, 576; In re George M. (1993) 14 Cal.App.4th 376, 379; In re Angela M. (2003) 111 Cal.App.4th 1392, 1396 (Angela M.).)
PROPRIETY OF THE CYA COMMITMENT
Minor argues that the factors on which the juvenile court relied did not support a CYA commitment and that the court either overlooked or "failed to properly consider" other factors militating against a CYA commitment.
As this court further stated in In re Tyrone O., supra, 209 Cal.App.3d 145 at page 152: "While it is true that the circumstances and gravity of the minors offense are always considerations in determining his proper disposition, these factors are not dispositive. (In re Samuel B. [(1986)] 184 Cal.App.3d 1100, 1104.) The juvenile court must also consider the minors age and previous delinquent history, in addition to other relevant and material evidence. (§ 725.5.) Also, because courts have expressed a persistent concern for committing young, unsophisticated youths with individuals who are experienced, sophisticated, criminally oriented types, alternative placement options should be adequately explored. (In re Anthony M. (1981) 116 Cal.App.3d 491, 503 . . . .) CYA commitment made with some punitive purpose is proper where consistent with the rehabilitative purposes of the juvenile court law and not retributive. (§ 202, subd. (b).)"
A. MINORS DELINQUENT HISTORY AND PLACEMENT FAILURES
Minor asserts that his crimes are not serious enough to warrant a CYA commitment. They were all misdemeanors, including his latest one, escape from the Youth Center (§ 871), except for one violation of Penal Code section 69 when he threatened a parole officer after being apprehended for a rock-throwing incident. Minor misdescribes his felony offense, which actually involved threatening to kill a probation officer with a gun when he was released from custody at juvenile hall.
As detailed above (ante, p. 11 ), at the hearing on November 16, 2005, the juvenile court described minors failures at six placements in five group homes and also one time each at home and the Youth Center. In two group homes he physically assaulted other residents. In one, he struck a staff member.
We recognize that the gravity of minors offenses alone may not require a CYA commitment. However, a minors criminal behavior is just one of the factors relevant to his disposition. Prior placement failures and probation violations are also relevant to his delinquency.
Minor relies on In re Jose P. (1980) 101 Cal.App.3d 52 (Jose P.), which stated at page 58: "failure on a particular program, even on several, is not a ground for commitment to CYA. (In re Aline D. [(1975)] 14 Cal.3d 557 [(Aline D.)].)" We note that both Aline D. and Jose P. were decided before section 202 was changed in 1984 to include punishment for rehabilitative purposes as an objective of juvenile law. We consider this quote, which we do not find in Aline D., to be inconsistent with the above-cited authority that a CYA commitment can be justified by the failure or unsuitability of less restrictive alternatives. While a single departure from a structured program such as a group home does not automatically establish the complete failure of such a disposition (In re Ronnie P. (1992) 10 Cal.App.4th 1079, 1085, criticized on other grounds by In re Melvin J (2000) 81 Cal.app.4th 742, 755, and cases there cited), a consistent refusal to cooperate and participate can be regarded as a demand by the minor for more structure than has been offered. (Cf. In re Martin L. (1986) 187 Cal.App.3d 534, 544 (Martin L.).)
The evidence supports the juvenile courts conclusions that minor could not be controlled by his prior placements, including the Youth Center, and that less restrictive alternatives had been inappropriate.
B. MINORS AGE
Minor argues that his young age militates against a CYA commitment. He relies on In re Todd W. (1979) 96 Cal.App.3d 408 (Todd W.), which stated, in overturning a CYA commitment of a 13-year-old, that, "Todds criminal profile bore no resemblance to the history of assaultive, violent behavior engaged in by the seven or eight 13-year-olds who formed the select group committed to CYA in fiscal year 1977-1978." (Id. at p. 419.)
The authors of Todd W. later noted that it and Aline D. predated "the amendment of former Welfare and Institutions Code section 502 (now § 202) regarding the purposes of the Juvenile Court Law. 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." (In re Lorenza M. (1989) 212 Cal.App.3d 49, 57.) Once less restrictive sanctions have failed to rehabilitate a minor, a CYA commitment is justified. (Id. at p. 58; cf. Martin L., supra, 187 Cal.App.3d 534, 544 [upholding a CYA commitment for a 13-year old].)
A minors age is a relevant consideration, as stated in section 725.5 (In re John F. (1983) 150 Cal.App.3d 182, 185), but it, like the physical size of a teenager, is a moving target, as minor is now 14 and one-half years old. We conclude that minors age alone did not prevent a CYA commitment.
C. MINORS LACK OF REMORSE
Minor argues that there is no evidentiary support for the juvenile courts conclusion that he lacked remorse for his misconduct.
Minor asserts that he expressed remorse in written apologies to the court and orally at the hearing on November 16, 2005. We have quoted his full statement at the hearing above (ante, p. 11 ) in footnote 7. We question whether this request for another chance because he was not doing anything bad expresses any remorse or interest in any particular placement.
Dr. Lees report of September 5, 2004, stated that minor expressed no remorse for hitting his mother. A probation report dated August 5, 2005, stated that he continued to blame his mother for his initial arrest. No supplemental probation report mentioned any expression of remorse. This evidence supports the courts conclusion.
D. CONSIDERATION OF PLACEMENT ALTERNATIVES
Minor argues that the juvenile court failed to "properly consider" less restrictive placement alternatives such as returning minor to the Youth Center or his grandmother.
The latest probation report considered a CYA placement, but ultimately recommended returning minor to the Youth Center, noting minors age of 13 and that he was doing well academically and in therapy at the Youth Center. Minors counsel argued alternatively for return to minors grandmother or to the Youth Center. The juvenile court stated that it had read and considered the probation officers report. We repeat, the court detailed minors history of placement failures. The court also observed that minor professed disinterest in returning to the Youth Center. The court stated that CYA has programs that will probably benefit minor. This is more than is required to demonstrate that the juvenile court adequately considered placement alternatives. Before making a CYA commitment, a juvenile court need not expressly discuss and reject each possible alternative placement. (In re John H., supra, 21 Cal.3d 18, 24-25; In re Ricky H., supra, 30 Cal.3d 176, 184; In re Jose R. (1983) 148 Cal.App.3d 55, 59.)
E. EVIDENCE OF CYA PROVIDING PROBABLE BENEFIT
Minor asserts that the courts finding that CYA "has programs that will probably benefit this minor" was pro forma and was unsupported by substantial evidence. The court did not identify any particular program at CYA that would benefit minors mental health, educational, and rehabilitative needs.
As quoted more fully above (ante, p. 12 ), at the hearing on November 16, 2005, after the court committed minor to CYA, his substitute attorney, Cardinale, asserted her belief, based on her conversations with minor, that before he was sent to the Youth Authority, probation "should file an IEP on Andrew and determine whether he is SED." On appeal, minor asserts that the juvenile court erred in denying this request. As will appear, this is essentially a challenge to the courts finding that minor does not have special education needs.
What counsel suggested by this jargon is that minor is seriously emotionally disturbed (SED) and in need of an individualized education (IE) plan or program. SED, when it causes a child to need special education and related services, is regarded as a disability under the federal Individuals with Disabilities Education Act. (20 U.S.C. § 1041, subd. (3)(A)(i), (ii); cf. Ed. Code, § 56030.5.) Such children are considered by the State of California to have "exceptional needs." (Ed. Code, §§ 8208, subd. (l)(2), 56026, 56030.5.) Ordinarily, it is up to an IE program team to identify whether a child has exceptional needs (Ed. Code, § 56026, subd. (a); Cal. Code Regs., tit.5, § 3030) and to formulate an IE program for such a child. (Ed. Code, § 56001, subd. (e).) The statutes describing the members of an IE program team do not mention juvenile court judges or probation officers. (Ed. Code, § 56341 [parents, teachers, local educational agents, assessment results interpreters, others knowledgeable about the pupil], Gov. Code, § 7572.5, subd. (a) [representative of county mental health department in some cases].)
Section 5600.3, subdivision (a)(2) (part of the Bronzan-McCorquodale pertaining to community mental health services) provides in part: "For the purposes of this part, `seriously emotionally disturbed children or adolescents means minors under the age of 18 years who have a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, other than a primary substance use disorder or developmental disorder, which results in behavior inappropriate to the childs age according to expected developmental norms. . . ."
Existing statutes require juvenile courts to accommodate minors who have already been identified as having exceptional needs. We will assume for the sake of discussion that the juvenile court in this case had some duty in 2005 to ascertain whether minor was SED and in need of an IE program. (In re Angela M., supra, 111 Cal.App.4th 1392, 1398 [relying on former California Rules of Court, rule 1493(e)(5)]; Cal. Rules of Court, rules 5.790(f)(3)(D), 5.805(5); Cal. Stds. Jud. Admin. § 5.40(d)(1).)
Section 1742 states: "When the juvenile court commits to the Youth Authority a person identified as an individual with exceptional needs, as defined by Section 56026 of the Education Code, the juvenile court, subject to the requirements of subdivision (a) of Section 727 and subdivision (b) of Section 737, shall not order the juvenile conveyed to the physical custody of the Youth Authority until the juveniles individualized education program previously developed pursuant to Article 3 (commencing with Section 56340) of Chapter 4 of Part 30 of Division 4 of Title 2 of the Education Code for the individual with exceptional needs, has been furnished to the Department of the Youth Authority. [¶] To facilitate this process the juvenile court shall assure that the probation officer communicates with appropriate staff at the juvenile court school, county office of education, or special education local planning area."
At an earlier stage of wardship proceedings, section 726, subdivision (b)(5), requires the juvenile court to make a referral for appointment of a surrogate parent for a ward who already has a valid IE program if the court is otherwise unable to appoint a responsible person to make educational decisions for the child.
We note that section 726, subdivision (b)(5) goes on to state: "All educational and school placement decisions shall seek to ensure that the child is in the least restrictive educational programs and has access to the academic resources, services, and extracurricular and enrichment activities that are available to all pupils." Minor relies on this to argue against a CYA commitment. We regard this as a general policy statement that must be harmonized with section 734 authorizing a CYA commitment when appropriate. A CYA commitment is obviously not a school placement decision and will necessarily entail additional educational restrictions.
New statutes which took effect January 1, 2006 (Stats. 2005, ch. 265, § 4-6, No. 8 Wests Cal. Legis. Service, pp. 2149-2151) specifically provide for juvenile courts to refer minors who appear to be SED for evaluation (§ 711) by a psychologist or psychiatrist, after which the court determines whether the minor is SED. (§ 712.) If the minor is SED, as defined in section 5600.3 (ante, fn. 9 ), the court refers the minor to a multidisciplinary team for preparation of a recommended disposition and written treatment plan, which the court shall take into account in ordering a disposition. (§ 713.)
Not noting the effective date of these statutes, the Attorney General argues that they were controlling during dispositional hearings in November and December 2005.
Although a requirement in former rule 1493(e)(5) that a juvenile court consider a childs "educational needs" was deleted, Standard of Judicial Administration section 5.40 (formerly 24), which is part of the California Rules of Court (rule 1.4(b)) states in subdivision (h)(1) that the juvenile court should "Take responsibility, with the other juvenile court participants at every stage of the childs case, to ensure that the childs educational needs are met, regardless of whether the child is in the custody of a parent or is suitably placed in the custody of the child welfare agency or probation department and regardless of where the child is placed in school. Each child under the jurisdiction of the juvenile court with exceptional needs has the right to receive a free, appropriate public education, specially designed, at no cost to the parents, to meet the childs unique special education needs. (See Ed. Code, § 56031 and 20 U.S.C. § 1401(8).) Each child with disabilities under the jurisdiction of the juvenile court has the right to receive accommodations. (See § 504 of the Rehabilitation Act of 1973 [29 U.S.C. § 794; 34 C.F.R. § 104.1 et seq.(1980)].)"
Current rule 5.805(5) (formerly rule 1494.5) of the California Rules of Court states that when a minor is committed to the Division of Juvenile Justice (formerly CYA), "The court must provide to the DJJ information regarding the youths educational needs, including the youths current individualized education program if one exists. To facilitate this process, the court must ensure that the probation officer communicates with appropriate educational staff."
The problem with minors argument for an SED evaluation and an IEP is a factual one, specifically the lack of evidence that minor is seriously emotionally disturbed. Minor argues that it is obvious his behavior is "inappropriate to the childs age according to expected developmental norms." (§ 5600.3, subd. (a)(2).) But the referenced statute (quoted above in fn. 9 on p. 19 ) requires such behavior to result from an identified mental disorder other than a developmental disorder.
Contrary to minors characterization, the psychologists who evaluated him did not find him to have serious emotional problems. Although both psychologists identified minor as having a troubled upbringing and being easily angered, they diagnosed him as having a moderate conduct disorder, not as having a serious emotional disturbance or mental disorder. Dr. Lee observed that "his behavior appears to be primarily volitional rather than being driven by uncontrollable impulses." This distinguishes Angela M., in which a court-appointed psychologist diagnosed the ward as having a bipolar disorder and recommended an IEP assessment. (Angela M., supra, 111 Cal.App.4th 1392, 1395, 1398-1399.) Under those circumstances, the appellate court required the trial court to consider her educational needs in committing her to CYA. (Id. at p. 1399.)
Here minor has not had special education classes. Teachers have commented that he was intelligent, but unmotivated. Minor himself said he did not care about doing well in school. This evidence supports the courts express conclusion that minor does not have special educational needs and its implied conclusion that minor is not SED. Minor cites no authority requiring an IE program for a child without exceptional needs.
Since the court essentially denied the request for an SED evaluation by finding and reaffirming that minor does not have special educational needs, we reject the Attorney Generals assertion that this request was abandoned or forfeited because minors substitute attorney, Cardinale, and his regular attorney, McNamara, did not press the court for a ruling.
Minor argues further that, even without needing an IE program, he has other educational needs that CYA cannot meet, namely an "age-appropriate middle school education." The juvenile court "ignored uncontroverted evidence that CYA could not provide [minor] with a suitable middle school education . . . ." Minor emphasizes that, though in eighth grade, he had sixth-grade math skills and fifth-grade reading skills.
We note that section 1120 subdivision (b) states: "The department [of the Youth Authority] 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. [¶] The educational program of the department shall be responsive to the needs of all wards, including those who are educationally handicapped or limited-English-speaking wards." The Legislatures intent is that all wards committed to CYA obtain instruction in "academic, vocational, and life survival skills . . . ." (Id., subd. (a).)
The so-called uncontroverted evidence on which minor relies is his attorneys assertion on December 7, 2005, that she had heard that some of the classes available in the Preston facility were geared towards older students. It is axiomatic that the argument of counsel is not evidence, although it could be regarded, in this context, as an offer of proof. In contrast to this argument was the individual change plan prepared at the time of minors initial CYA commitment, which indicated that minor could continue his formal education in programs provided by the CYA.
Although the juvenile court judge might have been well aware of the educational programs offered by CYA from other sources, we acknowledge that there was no particular evidentiary showing in this case that CYA has programs specially designed to upgrade the arrested reading and math skills of a 13-year-old ward. But the juvenile court is not required to find the availability of the kind of educational programs contemplated by section 1120. Section 734 only requires a finding that it is "probable that he will be benefited by the reformatory educational discipline or other treatment provided by the Youth Authority." (Emphasis added.) In this case, it appears that minor would probably benefit from a curtailment of his ability to abscond from the placement. As minor himself acknowledges, "Due to frequent placement failures, his CYA internment in 2004, and period stays in juvenile hall, he had not stayed in any one location long enough to receive consistent instruction or to make steady educational progress." This argues for a more secure confinement which will allow minor to participate in the educational programs offered by CYA.
Minor argues further that, even if he is not seriously emotionally disturbed, he has mental health needs that CYA will not meet. Minor asserts, "One consistent theme in all the probation department reports, case plans and psychological evaluations in [his] case was an insistence that he needed intensive psychotherapeutic assistance to address his mental health problems and chaotic, unstable family life."
Minor overstates the record. While psychologist Marra recommended individual therapy, psychologist Lee more generally described "appropriate intervention." Her recommendation in September 2004 was that he needed a structured group home placement. We recognize that therapy for minor has been emphasized in subsequent probation reports.
Here, the record reflects that CYA would offer minor individual and group counseling for anger management, abandonment, grief, victim awareness, and "negative peer/gang awareness," although he did not need mental health services. This evidence establishes that CYA has programs that would probably benefit minors mental health needs. Minor cites no evidence that the therapy available at the Youth Center is superior to that available at CYA.
In short, we conclude that there was substantial evidence supporting the courts conclusion that minor could probably benefit from a CYA commitment.
F. THE ABSENCE OF A SECTION 241.1 EVALUATION
Section 241.1, subdivision (a), states in part: "Whenever a minor appears to come within the description of both Section 300 and Section 601 or 602, the county probation department and the child welfare services department shall, pursuant to a jointly developed written protocol described in subdivision (b), initially determine which status will serve the best interests of the minor and the protection of society. The recommendations of both departments shall be presented to the juvenile court with the petition that is filed on behalf of the minor, and the court shall determine which status is appropriate for the minor." Dual status is prohibited (id., subd. (d)), unless a joint protocol provides for it. (Id., subd. (e).)
California Rule of Court, rule 5.512(a) (formerly rule 1403.5) states: "Whenever a child appears to come within the description of section 300 and either section 601 or section 602, the responsible child welfare and probation departments must conduct a joint assessment to determine which status will serve the best interest of the child and the protection of society.
"(1) The assessment must be completed as soon as possible after the child comes to the attention of either department.
"(2) Whenever possible, the determination of status must be made before any petition concerning the child is filed.
"(3) The assessment report need not be prepared before the petition is filed but must be provided to the court for the hearing as stated in (e).
"(4) If a petition has been filed, on the request of the child, parent, guardian, or counsel, or on the courts own motion, the court may set a hearing for a determination under section 241.1 and order that the joint assessment report be made available as required in (f)."
This statute was designed to avoid the potential conflict in the same or different juvenile courts of treating the same minor as both a dependent and a delinquent. Minor asserts that this statute is jurisdictional and it mandates an assessment along with the filing of the petition that creates the potential for dual jurisdiction.
Even assuming for the sake of discussion that the statute is mandatory, by its own terms an assessment is required only "[w]henever a minor appears to come within the description of both Section 300 and Section 601 or 602 . . . ." (Section 241.1, subd. (a).) Section 300 is a lengthy statute that essentially provides that a child may be adjudged a dependent of the court when the child is at substantial risk of physical harm, illness, emotional damage, or abandonment as a result of parental incompetence. (Cf. Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1008.)
Section 300 provides for a dependency adjudication if:
"(a) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the childs parent or guardian. . . .
"(b) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the childs parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parents or guardians mental illness, developmental disability, or substance abuse. . . .
"(c) The child is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent or guardian or who has no parent or guardian capable of providing appropriate care. . . .
"(d) The child has been sexually abused, or there is a substantial risk that the child will be sexually abused, as defined in Section 11165.1 of the Penal Code, by his or her parent or guardian or a member of his or her household, or the parent or guardian has failed to adequately protect the child from sexual abuse when the parent or guardian knew or reasonably should have known that the child was in danger of sexual abuse.
"(e) The child is under the age of five years and has suffered severe physical abuse by a parent, or by any person known by the parent, if the parent knew or reasonably should have known that the person was physically abusing the child. . . .
"(f) The childs parent or guardian caused the death of another child through abuse or neglect.
"(g) The child has been left without any provision for support; physical custody of the child has been voluntarily surrendered pursuant to Section 1255.7 of the Health and Safety Code and the child has not been reclaimed within the 14-day period specified in subdivision (e) of that section; the childs parent has been incarcerated or institutionalized and cannot arrange for the care of the child; or a relative or other adult custodian with whom the child resides or has been left is unwilling or unable to provide care or support for the child, the whereabouts of the parent are unknown, and reasonable efforts to locate the parent have been unsuccessful.
"(h) The child has been freed for adoption by one or both parents for 12 months by either relinquishment or termination of parental rights or an adoption petition has not been granted.
"(i) The child has been subjected to an act or acts of cruelty by the parent or guardian or a member of his or her household, or the parent or guardian has failed to adequately protect the child from an act or acts of cruelty when the parent or guardian knew or reasonably should have known that the child was in danger of being subjected to an act or acts of cruelty.
"(j) The childs sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions. . . ."
In this case, the initial probation report dated June 3, 2004, recommended a section 241.1 evaluation. At the time minors sister, Stephanie, was removed from the home due to brandishing a knife against their mother and allegations of sexual abuse by her step-grandfather. Minors attorney asked for a section 241.1 evaluation at a hearing on September 24, 2004. The court said it would look at it at disposition, stating it was familiar with Andrew and Stephanies dynamic. The issue was not expressly addressed thereafter, with the court implicitly denying such an evaluation at the disposition hearing on October 6, 2004. Prior to that hearing, the court had received Dr. Lees evaluation of minor. She reported in part that minor did not believe the molest allegations. The district attorney had declined to prosecute the step-grandfather. Minors "profile is more similar to a probation child than to a victim of abuse."
It appears that minor initially seemed to qualify as a dependent child due to a siblings molestation under section 300, subdivision (j). However, this characterization no longer applied by the time of the dispositional hearing on October 6, 2004. The molest allegations had been officially dropped and a psychologist thought minor was more of a probation child than a victim. Under these circumstances, it is understandable that minors attorney did not renew her request for a section 241.1 evaluation at the hearing on October 6, 2004. To the extent the earlier request remained pending, the juvenile court implicitly denied it, as minor no longer appeared "to come within the description of both Section 300 and Section 601 or 602 . . . ." (§ 241.1.)
The Attorney General argues that this issue should have been raised in minors first appeal and it is not cognizable in his second appeal. The Attorney General invokes People v. Senior (1995) 33 Cal.App.4th 531, where this court concluded "that where a criminal defendant could have raised an issue in a prior appeal, the appellate court need not entertain the issue in a subsequent appeal absent a showing of justification for the delay." (Id. at p. 538.)
We recognize the possibility of a minors status changing. A delinquent child may become a dependent child and vice versa. Child welfare and probation departments have a continuing duty to recognize this possibility. If a minors circumstances change, the issue may gain currency in subsequent proceedings. In this case minor cites no evidence of his dependent nature appearing after his initial CYA commitment. His counsel cannot be faulted for failing to press the issue. The probation department cannot be faulted for failure to pursue it. The juvenile court did not err by implicitly denying minors request or by failing to order an evaluation on its own motion.
It is for this reason we consider the merits of this contention. We imply no conclusion about the jurisdictional nature of an assessment report when one is called for.
THE REQUEST FOR JUDICIAL NOTICE AND TAKING ADDITIONAL EVIDENCE
On November 22, 2006, minor filed his reply brief. On December 13, 2006, he filed a request that this court recognize the current conditions at CYA, either by taking judicial notice or new evidence on appeal. Minor proffers two documents. One is a 22-page consent decree dated November 19, 2004, filed in the Alameda County Superior Court in Farrell v. Allen, case No. RG 03079344. The plaintiff in that case challenged the policies, procedures and practices of CYA. The other is a 47-page first report of the special master in that case, dated April 5, 2006. The Attorney General opposes minors requests.
Minor acknowledges that the special masters report was not in existence at the time of minors CYA commitment, but he argues that it is relevant to his continuing commitment. The thrust of minors request is that "these documents demonstrate that the juvenile court has placed [minor] in an institutional setting where his physical safety is at serious risk."
The California Supreme Court has explained in In re Zeth S. (2003) 31 Cal.4th 396 at page 405: "It has long been the general rule and understanding that `an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration. (In re James V. (1979) 90 Cal.App.3d 300, 304 . . . .) This rule reflects an `essential distinction between the trial and the appellate court . . . that it is the province of the trial court to decide questions of fact and of the appellate court to decide questions of law. . . . (Tupman v. Haberkern (1929) 208 Cal. 256, 262-263 . . . .) The rule promotes the orderly settling of factual questions and disputes in the trial court, provides a meaningful record for review, and serves to avoid prolonged delays on appeal. `Although appellate courts are authorized to make findings of fact on appeal by Code of Civil Procedure section 909 and rule 23 of the California Rules of Court, the authority should be exercised sparingly. (De Angeles v. Roos Bros., Inc. [(1966)] 244 Cal.App.2d 434, 443 . . . .) Absent exceptional circumstances, no such findings should be made. (Green v. American Cas. Co. (1971) 17 Cal.App.3d 270, 273 . . . .) (Tyrone v. Kelley (1973) 9 Cal.3d 1, 13 . . . ; see also In re Brittany H. (1988) 198 Cal.App.3d 533, 554 . . . .)" This court has generally adhered to these principles. (Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1090; Monsan Homes v. Pogrebneak (1989) 210 Cal.App.3d 826, 830.)
Former rule 23 has been repealed and replaced with rule 8.252.
For the same reasons, appellate courts generally refuse to take judicial notice of evidence not presented or available to the trial court. (People v. Peevy (1998) 17 Cal.4th 1184, 1207; In re Utz (1989) 48 Cal.3d 468, 480.)
If minor seeks to present newly developed evidence regarding his physical safety at CYA, we believe the appropriate mechanisms would be a petition for a writ of habeas corpus or a motion in the juvenile court to vacate his CYA commitment. (See In re Antoine D. (2006) 137 Cal.App.4th 1314, 1325.) This court is not equipped to conduct evidentiary hearings on the level of danger presented by a CYA commitment. Based on the above precedent, we deny minors alternative requests to take judicial notice or new evidence on appeal.
DISPOSITION
The order committing minor to CYA is affirmed.
We concur:
PREMO, J.
ELIA, J.