Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 73964
Dondero, J.
Defendant admitted a charge in a juvenile delinquency petition (Welf. & Inst. Code, § 602) of felony assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). Following a contested dispositional hearing the juvenile court committed defendant to the Division of Juvenile Justice (DJJ) for a maximum term of four years. In this appeal defendant complains that the DJJ commitment is not supported by evidence of benefit to her. We conclude that the dispositional order was not an abuse of the trial court’s discretion, and affirm the judgment.
Additional charges of false imprisonment and battery (Pen. Code, §§ 236, 242) were dismissed with a Harvey waiver pursuant to the negotiated disposition, as was a charge of grand theft (Pen. Code, § 487) stated in a prior, unrelated dependency petition. (People v. Harvey (1979) 25 Cal.3d 754.)
The DJJ was formerly known as the California Youth Authority (CYA). In this opinion we will use the initials DJJ, but will not change the references to CYA in opinions cited.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
In light of the plea, the facts related to the underlying offenses are taken from the police and probation reports.
Defendant was initially declared a ward of the juvenile court for misdemeanor vandalism and battery offenses in April of 2005, as a result of an altercation a month before during which she bit and punched her mother and broke a glass picture frame against a wall. She was placed in the Family Preservation Program, with standard conditions of probation. Due to an argument at her home in September of 2005, she was detained in the Youth Services Center for a violation of her family preservation plan.
In July of 2006, as a result of defendant’s theft of $226 of merchandise from a Target department store, a misdemeanor petty theft allegation was sustained and she was continued as a ward of the court. She successfully completed her probation in June of 2007.
On April 21, 2008, Daly City police officers arrived at the home of defendant’s mother in response to a report that defendant had taken controlled substances and was in need of medical attention. Defendant was found inside a car in the garage wearing only a bathrobe; she refused to come out. She disclosed that she had taken an ecstasy pill and requested transportation to the hospital. She then grabbed a small packet of plant food from the garage floor and poured some of the powder into her hands. Before she could ingest the powder the officers grabbed the plant food packet away from her. Defendant was then taken to the hospital. The probation officer filed a petition for a violation of Health and Safety Code section 11550, which remained pending with the district attorney’s office.
Defendant admitted that on June 5, 2008, she stole money in the amount of $400 from her mother’s purse. Another section 602 petition filed against defendant on July 3, 2008, alleged a grand theft offense (Pen. Code, § 487).
Defendant claimed that she used the money to purchase food and bus fare; her mother reported that defendant used the money to “pay off drug dealers.”
The current petition is based on an incident that occurred on September 11, 2008. Defendant and her friend threw pieces of ice plant at the victim as she walked past them. When the victim began to take photographs of defendant and her friend, they “approached her and began to punch and [k]ick her.” According to the victim, as she was restrained by defendant’s friend, defendant pulled her hair and punched her several times. When police officers arrived at the scene, they found the victim holding her head, with a “large clump of hair” lying on the ground next to her. She identified defendant and her friend as the ones who assaulted her. The victim was then transported to Kaiser Hospital for treatment of her injuries. When questioned by the police defendant stated that she and her friend threw the ice plant at the victim as a joke, but “it got out of hand.” Defendant and her friend were arrested and booked into the Youth Services Center. The petition was filed on September 15, 2008.
At a pretrial conference on the two most recent petitions held on October 6, 2008, the juvenile court ordered a continuance of the jurisdictional hearing for completion of a mental health evaluation of defendant, as recommended in the probation department report. The report stated that on September 29, 2008, defendant was placed on mental health observation while she was incarcerated in the Youth Services Center due to signs of depression, lack of emotional expression, failure to interact with peers or staff, and “not eating.” The report also noted that information had been received from an anonymous source that defendant struck two people, an older woman and a child in her neighborhood, and was “a terror in the community,” which caused the neighbors to be fearful of her. Defendant told mental health staff that she was angry, sad, and “scared of going to court.” Based on defendant’s self-destructive and volatile behavior, along with prior unsuccessful rehabilitation efforts, the report also recommended commitment of defendant to the DJJ if the petition was sustained.
An addendum to the report dated October 30, 2008, provided an update on defendant’s mental health evaluation and “declining behavior” in the Pine 4 Unit of the Youth Services Center. She isolated herself, lacked emotional expression and declined to associate with her peers, attend school, or engage in daily hygiene or other routine activities. She was unable to care for herself. Despite counseling, her depression showed no signs of improvement. She refused to take her prescribed medication for depression, and was resistant to evaluation or treatment. During an interview with the probation officer, defendant appeared confused and distracted. The recommendation in the addendum was unchanged: remove defendant from the community and place her in the secure custody of the DJJ if the court sustained any of the charges in the two pending petitions.
The juvenile court received a psychological evaluation report dated October 28, 2008, from clinical psychologist Anu Aurora. She reviewed defendant’s probation records, conducted a clinical interview with defendant and her mother, and performed cognitive functioning and personality assessment testing, although defendant was markedly resistant to testing, intervention or positive change. Dr. Aurora found that defendant meets the criteria for Disruptive Behavior Disorder as evidenced by her threatening and intimidating behavior towards others. She also found that defendant exhibited traits of Antisocial Personality, suffered from “depressed symptoms” that required further evaluation, and was at risk of “dependency for marijuana and possibly other substances.” Dr. Aurora recommended that defendant continue to be “away from her environment” to minimize negative influences, receive victim awareness therapy, drug and alcohol treatment, family psychotherapy, and additional evaluation.
Two days before defendant was scheduled to appear at a pretrial conference on October 30, 2008, she was “placed on a 5150 hold” and transported to Saint Mary’s Hospital for evaluation and treatment. While in the hospital defendant was given medication for depression and psychosis. She continued to be paranoid and confused, although not at a level as severe as before her hospitalization. She was “diagnosed with Psychotic Disorder NOS.”
Defendant was released from the hospital and returned to the Youth Services Center on November 24, 2008. At the request of her attorney defendant underwent an adjudicative competency evaluation by Dr. Jeffrey Kline the next day. Dr. Kline discerned that defendant seemed unaware of her legal situation or the reason she was incarcerated. A psychiatrist at the Youth Services Center diagnosed her with “Major Depressive Disorder with Psychotic Features.” When interviewed by Dr. Kline, defendant exhibited confusion, anxiety, anger, restlessness, lack of cooperation and an extremely blunt affect. He concluded that defendant’s “ongoing symptoms of a psychotic disorder” rendered her “most likely not competent to proceed.”
Another psychiatric evaluation of defendant was performed by Dr. Nasrin Bashiri on December 4, 2008. His diagnosis was Schizophrenia of Paranoid type, and Schizo affective Disorder with depressed mood.
Dr. Aurora completed a second psychological evaluation of defendant on December 11, 2008. She noted a decline in defendant’s emotional and mental functioning, perhaps caused by the stress of incarceration. Defendant was provisionally diagnosed with Schizophreniform disorder and strong depressive symptoms following a psychotic break. Dr. Aurora recommended that defendant’s “time of incarceration is minimized to prevent further decompensation,” but that she continue to receive care by a psychiatrist to monitor symptoms and medication. She also suggested frequent evaluations of defendant to prevent “self-harm behavior.” Short-term commitment to a facility that provides intensive treatment was specified as necessary by Dr. Aurora. A contemporaneous summary of defendant’s behavior at Hillcrest Juvenile Hall was extremely negative: lack of responsiveness; constant requests for attention; efforts at self-mutilation; mood swings; failure to attend classes; and lack of improvement despite counseling.
At a hearing on December 23, 2008, defendant was found competent and entered an admission that she committed the offense of assault by means likely to cause great bodily injury as charged in count one of the petition. A contested dispositional hearing was set.
The probation department’s behavioral summary dated December 23, 2008, indicated that defendant’s conduct at the juvenile hall facility improved. She was evaluated as average in the categories of participation in programs and class attendance. She was “open for counseling,” maintained counseling sessions, and was “getting along with all her peers.” She continued to receive average and high marks in behavioral summaries for January, February and March of 2009. By March of 2009, she was reported to be responding well to counseling, attending school, and exhibiting a “positive attitude” toward staff.
At the dispositional hearing which began on February 17, 2009, the department continued to recommend commitment of defendant to the DJJ, but did not present any additional evidence. The defense offered testimony from Sandra Tellers, a doctoral student in clinical psychology who was qualified as an expert witness in juvenile justice matters, and had intimately studied the conditions and programs at the DJJ. Tellers testified that the antiquated DJJ facilities have specialized counseling programs to treat mentally disturbed juveniles which are staffed primarily by unqualified youth correctional counselors and officers rather than psychiatrists, psychologists, or licensed clinical social workers. The counseling programs at the DJJ also lack a curriculum or “evidence based treatment model,” and fail to give “appropriate medication” to the wards. The number of qualified psychiatrists and psychologists at the DJJ has recently increased, but constituted only a “14 percent compliance” with the consent decree in the “Farrell litigation.” Tellers asserted that although the DJJ facilities are regularly monitored for compliance with the remedial plan developed in the Farrell case, they continue to be a violent and “toxic environment for mentally ill youth.” She added that the level of violence at DJJ facilities is “a huge concern.”
Tellers reviewed the record in defendant’s case and offered the opinion that the appropriate disposition was placement in a high-level, secure residential mental health treatment program which has a “psychiatrist involved.” She claimed that juveniles with “very significant mental health issues,” such as defendant, are more appropriately placed in “level 13 or level 14” group homes that are secure and have a “high degree of mental health staff.” Tellers agreed that defendant’s actions were “grave” and required a “residential program.” Tellers specifically considered the Seneca Center in San Leandro, a level 14 locked facility with a high ratio of mental health staff to wards and family involvement, as an “appropriate placement” for defendant. She explained that level 14 facilities are smaller than the DJJ, monitored more effectively, and have better treatment programs and counseling staff. Tellers was aware that defendant was already 18 years old, which “created a problem” for placement at a level 14 group home, but thought the funding could be provided until she was 19. Tellers testified that defendant needed placement in a secure residential mental health treatment program for a “minimum of six months;” but did not recommend commitment to DJJ.
At the conclusion of the dispositional hearing the court declared that only a locked facility was appropriate for defendant, but continued the matter for consideration of out-of-state facilities. At a subsequent hearing on March 5, 2009, the defense repeated the request for placement at Seneca, which was, if not a locked facility, at least a secure one. The court stated that defendant would “fail” or abscond from Seneca, and found that the DJJ “is a good placement for her,” with the “intensive treatment” she needs.
DISCUSSION
The sole contention made by defendant is that the juvenile court erred by imposing a DJJ commitment. Defendant claims that in light of her mental health history the evidence fails to establish any “likely benefit from a DJJ commitment.” Defendant adds that “there was an alternative lesser placement, the Seneca Center, which would have provided the appropriate treatment” for her and served the interest of “security for the community necessitated by her current condition.” She therefore argues that the “court’s refusal to commit her to a lesser placement, when the only testimony presented at the dispositional hearing was that DJJ could not provide the same level of treatment, was an abuse of discretion.”
We review the commitment order in light of the purpose of the juvenile delinquency laws, which “ ‘is twofold: (1) to serve the “best interests” of the delinquent ward by providing care, treatment, and guidance to rehabilitate the ward and “enable him or her to be a law-abiding and productive member of his or her family and the community,” and (2) to “provide for the protection and safety of the public....” ’ (In re Charles G. (2004) 115 Cal.App.4th 608, 614–615 [9 Cal.Rptr.3d 503] [noting also that [Welf. & Inst. Code,] § 202, subd. (b), authorizes punishment consistent with rehabilitative objectives]; see [Welf. & Inst. Code,] § 202, subds. (a), (b), (d).)” (In re Schmidt (2006) 143 Cal.App.4th 694, 716; see also In re Antoine D. (2006) 137 Cal.App.4th 1314, 1321–1322.) “To accomplish these purposes, the juvenile court has statutory authority to order delinquent wards to receive ‘care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances. This guidance may include punishment that is consistent with the rehabilitative objectives of [the juvenile court law]....’ [Citation.]” (In re Charles G., supra, at p. 615.) The juvenile courts have “broad discretion to choose probation and/or various forms of custodial confinement in order to hold juveniles accountable for their behavior, and to protect the public.” (In re Eddie M. (2003) 31 Cal.4th 480, 507; see also In re Antoine D., supra, at pp. 1321–1322.)
A commitment to the DJJ must be supported by substantial evidence in the record of 1) probable benefit to the minor, and 2) that less restrictive alternatives are ineffective or inappropriate. (In re Aline D. (1975) 14 Cal.3d 557, 566–567; In re George M. (1993) 14 Cal.App.4th 376, 379; In re Teofilio A. (1989) 210 Cal.App.3d 571, 576; In re Ismael A. (1989) 207 Cal.App.3d 911, 918.) “When determining the appropriate disposition in a delinquency proceeding, the juvenile courts are required to consider ‘(1) the age of the minor, (2) the circumstances and gravity of the offense committed by the minor, and (3) the minor’s previous delinquent history.’ [Citations.]” (In re Jonathan T. (2008) 166 Cal.App.4th 474, 484–485.) The current law, while retaining the best interest of the minor as a commitment consideration, has placed a greater emphasis on punishment as a tool of rehabilitation and a means of protecting the public safety. (In re Domanic B. (1994) 23 Cal.App.4th 366, 372; In re Asean D. (1993) 14 Cal.App.4th 467, 473; In re Michael D. (1987) 188 Cal.App.3d 1392, 1396.) A DJJ commitment may not be made for the sole reason that suitable alternatives are unavailable; instead, “the court must be ‘fully satisfied’ that a CYA commitment probably will benefit the minor,” and less restrictive alternatives are unavailable or inappropriate. (In re Aline D., supra, at p. 562; In re George M., supra, at p. 379; In re Tyrone O. (1989) 209 Cal.App.3d 145, 151; In re Jose R. (1983) 148 Cal.App.3d 55, 58.) “The court must find that CYA would likely benefit the ward ([Welf. & Inst. Code,] § 734), and that it otherwise serves the statutory aims.” (In re Eddie M., supra, 31 Cal.4th 480, 488.)
“The appellate court reviews a commitment decision for abuse of discretion.... Nonetheless, there must be evidence in the record demonstrating both a probable benefit to the minor by a CYA commitment and the inappropriateness or ineffectiveness of less restrictive alternatives. [Citations.] A CYA commitment may be considered, however, without previous resort to less restrictive placements.” (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396; see also In re Pedro M. (2000) 81 Cal.App.4th 550, 555–556; In re Asean D., supra, 14 Cal.App.4th 467, 473.) “ ‘ “We must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them.” ’ [Citation.]” (In re Robert H. (2002) 96 Cal.App.4th 1317, 1330.)
We are convinced that the current serious felony finding along with defendant’s record of repeated criminal acts, violent behavior, and drug use, along with her increasingly deteriorating mental health condition and eventual psychotic break, thoroughly justified the DJJ commitment. Defendant engaged in a succession of criminal acts and distressingly erratic behavior, culminating in a complete emotional breakdown and prolonged stay in the hospital as the result of a section 5150 hold. Prior rehabilitation efforts had been unsuccessful. Given defendant’s history, she was considered at “ ‘high’ risk for reoffending.” The nature, gravity and repetition of offenses support the disposition. (In re Robert H., supra, 96 Cal.App.4th 1317, 1330.)
Further, as the dispositional report specifies, commitment to an unlocked residential facility is unavailable or inappropriate for defendant. She engaged in violent, unpredictable, self-destructive and volatile behavior that warranted and required placement in a structured, locked facility, not only for her own benefit, but also to serve the objective of protection of the community. (See In re Travis W. (2003) 107 Cal.App.4th 368, 379; In re Pedro M., supra, 81 Cal.App.4th 550, 556.) She also exhibited lack of cooperation and extreme resistance to therapeutic services, treatment and medication, which necessitated rigorous monitoring services that might not be provided in a less restrictive placement.
Defendant’s challenge to the placement order is thus distilled to a complaint that the DJJ fails to offer the rehabilitative programs necessary to benefit her, specifically, her identified and extremely serious mental health needs. While we realize that a commitment order must be supported by evidence demonstrating both a probable benefit to the minor by a DJJ commitment and the inappropriateness or ineffectiveness of less restrictive alternatives, we find in the record substantial evidence of benefit to the minor to support the commitment order. (In re Angela M., supra, 111 Cal.App.4th 1392, 1396–1397; In re Pedro M., supra, 81 Cal.App.4th 550, 555–556.) We disagree with defendant’s assertion that her mental health needs and treatment requirements were overlooked or discounted by the juvenile court. To the contrary, defendant’s individual therapeutic needs were explicitly identified in the various reports and mentioned by the court. The court also expressly considered less restrictive alternatives, but articulated justifiable reasons that a DJJ placement was more suitable for defendant: that she would not succeed or perhaps even remain on the premises at the unlocked Seneca facility, and would receive the “intensive treatment” she required at the DJJ facilities. Thus, the court properly considered whether less restrictive alternatives would be inappropriate or ineffective. (In re Jonathan T., supra, 166 Cal.App.4th 474, 486.)
The reports also contained evidence to support the finding that the DJJ, while perhaps not an optimum environment, at least offers defendant some of the therapeutic services and monitoring of medication she needs. Her condition also improved during her stay at the Youth Services Center, another locked facility, which tends to indicate that she may benefit from commitment to a secure, highly structured environment such as the DJJ. The closed setting of the DJJ is not only protective of the public, but will also benefit defendant by providing her with a secure environment that promotes her rehabilitation. (In re Jonathan T., supra, 166 Cal.App.4th 474, 486.)
We acknowledge the evidence presented by the defense that recounted inadequacies within the DJJ system. In particular, Tellers testified that in her opinion the DJJ failed to offer mental health services with properly structured remedial plans or licensed mental health experts. The juvenile court was not required to adopt Tellers’s testimony and view of the DJJ, however. “[T]he trier of fact is the exclusive judge of credibility and may reject expert testimony in favor of nonexpert testimony or other evidence.” (Lauderdale Associates v. Department of Health Services (1998) 67 Cal.App.4th 117, 127.) “The fact finder determines the facts, not the experts. Indeed, the fact finder may reject even ‘a unanimity of expert opinion. “To hold otherwise would be in effect to substitute a trial by ‘experts’ for a trial by jury....” [Citation.]...’ [Citation.]” (In re Scott (2003) 29 Cal.4th 783, 823; see also People v. Lawley (2002) 27 Cal.4th 102, 132.) The court did not arbitrarily or unreasonably disregard Tellers’s expert testimony, but rather merely disagreed with it, and was entitled to do so even where the testimony was not contradicted. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 633.) Finally, defendant’s age militated against placing her at Seneca, where her eligibility for placement might expire before she had adequate time for rehabilitation.
While the record may lend itself to a legitimate dispute over which facility is the most beneficial or appropriate for defendant, we find that the juvenile court’s choice of a DJJ commitment does not constitute an abuse of discretion under the circumstances presented.
Accordingly, the judgment is affirmed.
We concur: Marchiano, P. J., Banke, J.