Opinion
F042226.
10-16-2003
In re DUANE M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. DUANE M., Defendant and Appellant.
R. Bruce Finch, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Janis Shank McLean and Matthew L. Cate, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT
Before Vartabedian, Acting P.J., Levy, J., and Cornell, J.
Appellant Duane M. contends the juvenile court abused its discretion in placing him at the California Youth Authority (CYA) after he admitted violating the terms of his probation. We will affirm the disposition.
BACKGROUND
In December 1999, the Tulare County District Attorney filed an original juvenile court petition (Welf. & Inst. Code, § 602) charging 12-year-old Duane with second degree commercial burglary (Pen. Code, § 459) and petty theft (& sect; 484, subd. (a)) of a large discount department store in November 1999. The following month, the district attorney amended the complaint and additionally charged Duane with petty theft of a drug store. Duane admitted committing felony second degree commercial burglary and the remaining petty theft counts were dismissed.
Further statutory references are to the Penal Code unless otherwise indicated.
The juvenile court subsequently issued a bench warrant for Duanes arrest after he failed to appear for his disposition hearing in March 2000. After surrendering himself and while awaiting disposition in May 2000, the district attorney filed a second juvenile court petition asserting Duane committed first degree residential burglary (§ 459) and received stolen property (§ 496, subd. (a)) by entering a home with the intent to commit larceny and receiving a stolen bicycle and bicycle parts in March 2000.
On May 17, 2000, Duane failed to appear for disposition on the original petition and the juvenile court ordered Duanes arrest warrant to remain.
In August 2000, the district attorney amended the May 2000 petition by alleging Duane committed another residential burglary (& sect; 459) and again possessed stolen property (§ 496) by entering a home with intent to commit larceny and receiving a stolen skateboard. In September 2000, Duane admitted both felony counts of possessing stolen property and the court dismissed the remaining burglary charges. At an October 2000 dispositional hearing, the juvenile court adjudged Duane a ward of the court, placed him on probation, removed him from his mothers custody, and released him to the care of his grandmother.
In January 2001, the Tulare County Probation Department (Probation) petitioned the juvenile court alleging Duane violated the terms of his probation by returning to his mothers home. (Welf. & Inst. Code, § 777.) The juvenile court dismissed the petition and ordered Duane to return to his grandmothers custody with supervised visits from his mother.
In October 2001, Duane failed to appear for a scheduled review hearing and the juvenile court issued another bench warrant for his arrest. Probation again petitioned the juvenile court alleging Duane violated the terms of his probation by failing to obey school rules and officials. Duane appeared before the juvenile court on October 9, 2001, and admitted the violations. At the subsequent dispositional hearing, the juvenile court readjudged Duane a ward of the court and placed him on electronic monitoring under the care of his grandmother.
In December 2001, Probation re-petitioned the juvenile court alleging Duane violated the terms of his probation for accumulating several days of unexcused absences and tardies from school and by failing to remain in range of his electronic monitor. Duane denied the allegations and the juvenile court ordered probation to prepare a report for a January 7, 2002, review hearing.
On January 3, 2002, the district attorney filed a third juvenile court petition alleging that in March 2001, then 14-year-old Duane committed lewd or lascivious acts with a child under the age of 14 years. (§ 288, subd. (a).) According to Duanes probation reports, Duane forcibly raped a 7-year-old girl.
Duane failed to appear for the January 7, 2002, hearing and the juvenile court reissued a warrant for his arrest. The district attorney subsequently amended the petition by further alleging Duane committed a January 6, 2002, trespass on hotel property. (§ 602, subd. (l).)
On February 26, 2002, Duane admitted committing misdemeanor sexual battery (§ 243.4, subd. (d)(1)) and the court dismissed the trespass allegation and released him to the custody of his mother on electronic monitoring pending disposition. In May 2002, after continuing the disposition because Duane failed to meet with Probation, the juvenile court readjudged Duane a ward of the court and committed him to Probations custody to find a suitable out-of-home placement. The juvenile court also ordered Duane to participate in sex offender, anger management, and family counseling as probation conditions. Several weeks later, the juvenile court confirmed Duanes placement at the ACTS for Children group home in Bloomington, California.
In October 2002, Probation filed yet another petition alleging Duane repeatedly violated the terms of his probation during his four months at the group home. At the review hearing, Duane admitted 89 probation violations involving refusal to take his medication, truancy, and gang-related behavior. At a November 2002 dispositional hearing, the juvenile court found 15-year-old Duane an individual with exceptional needs and agreed with Probations recommendation to commit him to CYA for a maximum period of confinement of 4 years 6 months.
DISCUSSION
Duane contends the juvenile court abused its discretion by placing him at CYA because the record lacked substantial evidence of the courts implicit determination that a less restrictive group home placement would be ineffective or inappropriate. We disagree.
A juvenile court has broad discretion in imposing disposition upon a ward, and an appellate court may reverse the juvenile courts commitment decision only upon a showing the trial court abused that discretion. (Welf. & Inst. Code, §§ 727, subd. (a), 730, subd. (a), 731; In re Todd W. (1979) 96 Cal.App.3d 408, 416.) "`We must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them." (In re Lorenza M. (1989) 212 Cal.App.3d 49, 53.)
In determining whether the juvenile court abused its discretion, a commitment must conform to the general purpose of the juvenile court law. (Welf. & Inst. Code, § 202; In re Todd W., supra, 96 Cal.App.3d at p. 417.) Legislation enacted in 1984 recognized punishment as a rehabilitation tool and shifted the "emphasis from a primarily less restrictive alternative approach oriented towards the benefit of the minor to the express `protection and safety of the public where care, treatment, and guidance shall conform to the interests of public safety and protection." (In re Michael D. (1987) 188 Cal.App.3d 1392, 1396, citations omitted.) The disposition must nevertheless evidence probable benefit to the minor and that less restrictive alternatives would be ineffective or inappropriate. (Welf. & Inst. Code, § 202, subd. (e); In re Teofilio A. (1989) 210 Cal.App.3d 571, 576.)
While the juvenile court law contemplates a progressively restrictive and punitive series of dispositions, there is no absolute rule that the court may not impose a particular commitment until less restrictive placements have actually been attempted. (In re Teofilio A., supra, 210 Cal.App.3d at p. 577.) "[I]f there is evidence in the record to show a consideration of less restrictive placements was before the court, the fact the judge does not state on the record his consideration of those alternatives and reasons for rejecting them will not result in a reversal." (Ibid.)
The juvenile court expressly remarked that it read and considered the report and recommendation of Probation before imposing Duanes disposition. In recommending a CYA commitment, the evaluating probation officer found the Long Term Youth Facility Program, the Tulare County Probation Youth Facility, and the Juvenile Detention Facility Program each inappropriate for Duane based on the nature of his offense and the inability of those facilities to treat sex offenders. Probation also considered recommending another group or foster home, but foreclosed the possibility because the homes do not offer the security and structure Duane required as evidenced by his recent out-of-control behavior. The juvenile court intimated that it would be fruitless to return Duane to another group home.
Probation also particularly considered the protection and safety of the public in recommending a CYA commitment:
"In this case, the minors sexually abusive behavior has put the public at risk. The ... Juvenile Court attempted to rehabilitate the minor by placing the minor in a group home. However, the minor continued to be a threat to the public by assaulting staff and residents, continuing to act out in sexually inappropriate ways, and not following group home staff, by leaving the group home and jumping out of group home vehicles, and indicating he knew that group home staff could not touch him. By his actions he demonstrated placement in a group home is not sufficient to protect the community, nor will group home placement promote his rehabilitation. Therefore, another group home placement would be inappropriate for this minor, as it would not be protecting the public or holding the minor accountable for his actions. The minor was placed in a level 12 Sex Offender Group Home, however, he refused to program."
Probation advised the court that CYAs sex offender treatment program would provide Duane the best opportunity to obtain treatment and rehabilitation and also protect the community and hold Duane accountable for his actions.
Agreeing with Probations recommendation, the juvenile court noted that Duanes underlying sexual battery offense was "very serious" and that he was "given an opportunity to go to a group home and do what he was supposed to do." Despite the opportunity, Duane accumulated 89 incident reports and took advantage of the situation. Given his history of delinquency, failure to reform following prior dispositions, the risk to public safety, and the need to hold him accountable for his actions, Duane has overwhelmingly demonstrated the juvenile court appropriately placed him at CYA.
DISPOSITION
The judgment is affirmed.