Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County Super. Ct. No. JW099152-08. Peter Warmerdam, Juvenile Court Referee.
Edgar Eugene Page, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Janine R. Busch, Deputy Attorneys General, for Plaintiff and Respondent.
Before Wiseman, Acting P.J., Cornell, J., and Kane, J.
OPINION
The juvenile court committed 15-year-old Anthony S. to the Department of Juvenile Justice (DJJ) after he admitted resisting arrest, misdemeanor battery, and violating probation. On appeal, Anthony contends the juvenile court abused its discretion by placing him at the DJJ and by denying his request for a 90-day diagnostic evaluation. Anthony also seeks a reduction in his maximum period of confinement based on the United States Supreme Court’s determination that an adult offender’s prison sentence may not be increased based on findings not found by a jury. (Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).) Disagreeing with Anthony’s contentions, we affirm the disposition.
The DJJ was formerly named the California Youth Authority (CYA). (Gov. Code, §§ 12838, 12838.5.) References to the Youth Authority or CYA herein refer to the DJJ.
BACKGROUND
In June 2006, the Kern County District Attorney filed an eighth juvenile wardship petition against Anthony in response to four separate physical altercations in which he appeared to be the aggressor against fellow wards in custody at the Kern Crossroads Facility. After initially denying the allegations, Anthony admitted he resisted arrest (Pen. Code, § 148, subd. (a)(1); count 2), committed a misdemeanor battery (Pen. Code, § 243, subd. (a); count 3), and violated the terms of his probation (Welf. & Inst. Code, § 777, subd. (a)(2); count 7). Pursuant to a negotiated plea agreement, the juvenile court dismissed three additional counts of misdemeanor battery (Pen. Code, § 243, subd. (a); counts 4, 5, & 6) and active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a); count 1). The juvenile court committed Anthony to the DJJ under a five-year eight-month maximum period of confinement.
DISCUSSION
I. Commitment to DJJ
Anthony contends the juvenile court abused its discretion by placing him at the DJJ, especially in light of the probation officer’s recommendation that Anthony be recommitted to the Kern Crossroads Facility. As an appellate court, we review “a commitment decision for abuse of discretion, indulging all reasonable inferences to support the juvenile court’s decision.” (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) A juvenile court abuses its discretion when the commitment does not conform to the general purpose of the juvenile court law. (In re Todd W. (1979) 96 Cal.App.3d 408, 417.) That purpose is to protect the safety of the public and minor, preserve and strengthen family ties when possible, and remove a minor from parental custody only when necessary. (Welf. & Inst. Code, § 202, subd. (a).)
In selecting an appropriate disposition, the juvenile court must consider the age of the minor, the circumstances and gravity of the offense, the previous delinquent history, and other relevant and material evidence. (Welf. & Inst. Code, § 725.5.) The juvenile court is not required to discuss specifically each of these factors in making its decision, and it is sufficient if the record reflects that they were, in fact, considered. (In re John F. (1983) 150 Cal.App.3d 182, 185.) A juvenile court may commit a minor to the DJJ even on an initial disposition if evidence in the record demonstrates both a probable benefit to the minor and the inappropriateness or ineffectiveness of less restrictive alternatives. (In re Angela M., supra, 111 Cal.App.4th at p. 1396.)
At Anthony’s dispositional hearing, the juvenile court asked why the probation department had “such an optimistic view” that Anthony could be successfully rehabilitated by a third boot camp commitment. The probation officer explained that while Anthony’s criminal actions and failure to reform under less restrictive placements demonstrated he had “earned” a DJJ commitment, his youth and lack of criminal sophistication caused the probation department to recommend another placement at the Kern Crossroads Facility. The prosecutor argued, however, that Anthony’s recent performance at juvenile hall while awaiting disposition was unacceptable and that were he to act similarly at another local commitment, she would “be happy to charge him with a new offense.”
The juvenile court agreed with defense counsel that Anthony did not have a particularly serious record, with only “one significant felony” and a “great many misdemeanors” primarily for resisting, delaying, or obstructing an officer. The juvenile court deduced from Anthony’s record, however, that he “apparently doesn’t like authority very well; that’s probably echoed in the fact that he’s been in placement several times.” The juvenile court continued:
“Anthony had to do the work program; that had to be extended once. Anthony failed to do that.
“Anthony was in the STOP Program. Anthony wasn’t successful.
“Anthony went to Camp; that commitment was set aside after modification because Anthony wasn’t doing very well in that program. Anthony went to Camp a second time.
“Anthony went to Crossroads. Apparently Anthony’s behavior in Crossroads wasn’t very good as evidenced by the assault or batteries that were subsequently charged. Some of those may not have been Anthony’s fault, but it’s just another continuing pattern of Anthony not following the rules, not obeying authorities because in each and every one of those, Anthony was ordered to get to the ground; Anthony failed to comply, and now Anthony is sitting here waiting to go to court; waiting for the Court to decide what should happen to Anthony; one would think Anthony might have done a decent job in Juvenile Hall; Anthony has failed miserably.
“So based on Anthony’s performance today, all we can expect is that Anthony would not behave himself while at the Crossroads Facility; that he would not comply with the terms and conditions of that program.”
In contrast to In re Teofilio A. (1989) 210 Cal.App.3d 571, 577 , where neither the juvenile court nor probation considered alternatives to placing the minor with the CYA, both the juvenile court and probation here expressly considered alternatives less restrictive than the DJJ. Although the probation department and the juvenile court did not agree, the juvenile court’s conclusion that Anthony would profit from a DJJ commitment and that a less restrictive alternative would be ineffective is supported by Anthony’s failure to reform despite multiple grants of probation and commitments. Anthony’s history of delinquency, his failure to reform at numerous less restrictive placements, and his antisocial behavior all support the juvenile court’s finding that he would likely benefit from the structured and supervised environment of the DJJ. (In re Lorenza M. (1989) 212 Cal.App.3d 49, 57-58.)
II. Request for Evaluation
Anthony contends the juvenile court also abused its discretion by denying his request for a 90-day diagnostic commitment. Just before adjourning at the dispositional hearing, defense counsel asked, “will the Court consider an[] order for 90 day observation for this minor to be reported back to the Court?” The juvenile court responded:
“The Court will not consider such an option. The Court is intended [sic] that there are no local options available for this young man and that the Division of Juvenile Justice is the appropriate place for him to reside.”
Anthony submits that his request for a 90-day observation should have been granted under Welfare & Institutions Code, section 704, subdivision (a), which provides:
“If the court has determined that a minor is a person described by Section 602, … and such minor is otherwise eligible for commitment to the Youth Authority, the court, if it concludes that a disposition of the case in the best interest of the minor requires such observation and diagnosis as can be made at a diagnostic and treatment center of the Youth Authority, may continue the hearing and order that such minor be placed temporarily in such a center for a period not to exceed 90 days, with the further provision in such order that the Director of the Youth Authority report to the court its diagnosis and recommendations concerning the minor within the 90-day period.”
California Rules of Court, rule 5.782(c) adds:
“If the child is eligible for commitment to the Youth Authority, the court may continue the disposition hearing up to 90 calendar days and order the child to be placed temporarily at a Youth Authority diagnostic and treatment center for observation and diagnosis. The court must order the Youth Authority to submit a diagnosis and recommendation within 90 days, and the probation officer or any other peace officer designated by the court must place the child in the diagnostic and treatment center and return the child to the court. After return from the diagnostic and treatment center, the child must be brought to court within 2 judicial days. A disposition hearing must be held within 10 judicial days thereafter.”
Anthony contends the juvenile court only looked to his placement at the DJJ rather than to the possibility that he may have special educational needs. Anthony notes that probation reports prepared for prior dispositions recorded his parents’ belief that he may possess a learning disability. Notwithstanding Anthony’s failure to raise at the hearing any grounds for postponing the ultimate disposition and conducting a 90-day evaluation, there is nothing in the record to substantiate his argument on appeal as he was never placed in special education, never received an Individualized Education Program, and his grades were reported as “Good” with “Satisfactory” academic behavior and attendance. The juvenile court did not abuse its discretion by refusing to conduct a special diagnostic evaluation before committing Anthony to the DJJ.
III. Maximum Period of Confinement
Anthony lastly contends the juvenile court violated his constitutional rights by imposing a maximum period of confinement exceeding the length of time applicable to similar adult offenders without aggravating factors determined by a jury. (Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856].) Anthony’s argument carries no merit under the juvenile court law because there is no comparable fact-finding requirement in setting a juvenile’s maximum period of confinement. (In re Christian G. (2007) 152 Cal.App.4th 708; In re Carlos E. (2005) 127 Cal.App.4th 1529.)
DISPOSITION
The judgment is affirmed.