Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J08-01805
Pollak, J.
Sixteen-year-old D.Y., who had no prior record of delinquency, admitted two of seven alleged robberies committed with other youths. After a lengthy dispositional hearing at which D.Y. presented testimony concerning conditions at the Department of Juvenile Justice (DJJ) and argued for placement at a Youthful Offender Treatment Program (YOTP), the court committed him to DJJ for a maximum term of six years. We hold that the juvenile court did not abuse its discretion in making this placement and shall affirm its dispositional order.
“The California Youth Authority was renamed, effective July 1, 2005, the Division of Juvenile Justice of the Department of Corrections and Rehabilitation (DJJ). (Gov.Code, §§ 12838, subd. (a), 12838.13.)” (In re James H. (2007) 154 Cal.App.4th 1078, 1081, fn. 2.)
Background
On October 6, 2008, a juvenile wardship petition pursuant to Welfare and Institutions Code section 602, subdivision (a) was filed, alleging that D.Y. had committed seven robberies (Pen. Code, § 211) and that he used a deadly weapon in the commission of two of those robberies (Pen. Code, § 12022, subd. (b)(1)). He was ordered detained.
Further statutory references are to the Welfare and Institutions Code unless otherwise noted.
According to the report filed by the probation department, the incidents surrounding the robbery charged in the first count occurred on October 1, 2008, when Mary McNeil parked her car in front of her home. As she approached the house “she turned around and saw a suspect pointing a gun at her face. The suspect... demanded and took the victim’s purse, which contained $140 in cash, several credit cards, her driver’s license, cellular phone, Bluetooth headset, and car keys.” Her debit card was used at a fast food restaurant twice in the next hour.
The incidents surrounding the robbery in the second count occurred on September 30, when three youths approached Rajinder Singh as he was walking on Shattuck Avenue in Berkeley. “All three subjects then brandished handguns and pointed them directly at Singh. One of the suspects demanded Singh’s property and removed approximately $200 in cash, his identification and various credit cards from the victim’s pocket.”
Counts three, four and five arose out of an incident on September 19, when D.Y. and two other men approached three victims in Albany, pointed handguns at them and demanded that one of the victims give them her purse, which she did. The youths went through this victim’s pockets, then the pockets of the second victim from which they took a cell phone, $100 in cash, and “various identification cards.” From the third victim the youths took a cell phone. As they fled, one of the youths shot out the window of a parked car.
The events leading to counts six and seven occurred on September 15 when D.Y. and two other young men approached a man and woman walking on Indian Rock Avenue in Berkeley, pointed two handguns and a knife at them, and took a wallet from one and cell phones from both.
When interviewed by police, D.Y. and one of the other youths “confessed to the robbery of victim Singh with the use of a BB gun as well as additional robberies, including the robbery of Mary McNeil. Both the minor and [the other youth] identified themselves as being responsible for robbing [the] victims” in counts three, four and five.
D.Y. subsequently admitted to the robberies of McNeil and Singh. The remaining counts were dismissed with the stipulation that the facts underlying those counts could be considered for the purpose of ordering restitution.
The probation report recommended that D.Y. be committed to DJJ for 6 years. The report stated that “local resources are inappropriate in the rehabilitation of said minor” and that “the mental and physical conditions and qualifications of the minor are such as to render it probable that he will be benefited by the reformatory educational discipline or other treatment provided by DJJ.” The probation officer reported that when he interviewed D.Y., he “was respectful, but not forthcoming.... When questioned, the minor said he committed the robbery because he needed money.... When... asked... how he felt about his actions and how he affected his older victims, the minor replied, ‘I don’t know how I feel, but I’m nervous about what’s going to happen next.’ [¶] The minor denied any gang affiliation and described himself as a normal teenager. He said he enjoys playing soccer and riding dirt bikes with his father....” Because of the seriousness of the offenses, the probation report concluded that other treatment programs were not appropriate for D.Y. and recommended that he be committed to DJJ.
D.Y. stipulated that the disposition report could be received in evidence for the purpose of the hearing.
A contested disposition hearing was held on January 5, 20, and 28. Daniel Macallair, the executive director of the Center on Juvenile and Criminal Justice, “a nonprofit, nonpartisan organization that provides direct services, technical assistance and policy analysis in the field of juvenile and criminal justice,” testified “about the current state of the youth corrections in California.” He stated that wards at DJJ are generally offered programs in anger management, victim awareness, substance abuse and gang awareness. He opined that “the programs are not generally considered to be particularly effective by outside experts. I’m not going to claim they have no value, but they are group sessions.... [T]hey tend to be of limited value, mainly because wards are very cautious and careful about what they say....” He also stated that conditions at DJJ “are violent. There’s a gang subculture that prevails.... When wards come in, it’s generally assumed that, depending on their race, their ethnicity, where they’re from, they’re likely to become affiliated with one of the race-based or ethnic-based gangs that are present within all the institutions.” According to Macallair, the fact that the minor is from Nicaragua and speaks Spanish could affect his safety because “wards who are considered Sureño, or likely Sureño wards, are at a disadvantage in the Northern California institutions.”
Macallair testified about the consent decree under which DJJ is now operating. The consent decree arose out of a suit brought to address “the failure of what was then the California Youth Authority to provide adequate education services, adequate mental health services, adequate access for kids with disabilities, proper medical services, inability to protect wards within its custody, [and] inadequate sex offender treatment.” Of these areas of concern, he conceded that only education and security were relevant to D.Y. Macallair testified that as part of the consent decree, youth at DJJ are required to attend school and that it is possible for a youth to graduate from high school or earn a GED while in DJJ. He referred to the 2004 Little Hoover Commission Report, which observed that little progress had been made in instituting the changes called for by the consent decree, “and the reason given is that it was a much more [d]aunting task than they expected and it’s going to take much longer.” Macallair did not express an opinion as to whether D.Y. should be committed to DJJ. He noted that YOTP, in which the minor sought placement, was created for minors whose offenses are not listed in section 707, subdivision (b) and that robbery is listed in that section.
See Division of Juvenile Justice, Farrell Remedial Plans and L.H. Class Action Lawsuit: Legislative Briefing (Feb. 2009) (as of Nov. 4, 2009).
Bruce Pelle, the superintendent of Contra Costa County Juvenile Hall, testified that the YOTP program “tr[ies to] deal with individuals who are non-707(b) offenders.” He testified that the program was created in response to the passage of Senate Bill No. 81 (Stats. 2007, ch. 175, §§ 19, 20, 22 & 24; § 707, subd. (c)), which prohibited the placement of non-707(b) offenders at DJJ. He acknowledged that the program would accept a section 707(b) offender if ordered by the court and that there were then five section 707(b) offenders in the program. The program offers cognitive behavioral therapy, anger replacement therapy, social skills and moral reasoning, all of which are “designed to break the pattern of criminality through changing the thinking that goes behind that kind of behavior.” There is also training in gang awareness, life skills, and victim awareness.
D.Y. made an offer of proof that his aunt would testify that he lived with her in Nicaragua, and that while they were there he performed well in school and did not commit any offenses. He also proffered the testimony of Pedro Y., who would have testified that D.Y. lived with him for the previous two years, and that during that time he “was going to school, doing well at home, following his father’s rules, but also during that time there was some upheaval in the home. [D.Y.’s father] was splitting up with [his] stepmother. At that time also [D.Y.’s father] was working very late hours and he feels that [D.Y.] at that period of time was not being supervised well, that he was relying on [D.Y.’s] older brother to do the supervision, the older brother being a co-responsible in this case.... He’s since, realizing these offenses, changed his job hours so he could provide better supervision of [D.Y.].” The prosecutor accepted both offers of proof.
D.Y. testified that he had never been in trouble before these incidents. He admitted that over a period of two weeks he participated in committing seven robberies on four occasions, accompanied by his older brother R.Y. and someone named Hector. The people he was with during the robbery of Singh pointed a gun at the victim but he “just took the wallet out of his pocket. That’s the only thing that I did.” He traveled from Richmond to either Berkeley or Albany for the purpose of committing the robberies. Initially he did not think that what he was doing “was bad” but “when I got home, I did start to think on what I was doing, that it was bad. And now that I’m here, I’m even more sorry.” After the third robbery he believed he was doing something wrong. He knew that the fourth robbery was wrong, “But I did not participate—well, it’s said that I did participate because the car that I was driving, it was mine, and I was the one who helped to get the getaway.” He knew that a robbery was planned when he drove to Berkeley. He dropped the other participants off, knowing that they planned to commit a robbery, then waited in the car.
D.Y. wrote a letter to the court that was read into the record by an interpreter. The letter stated “how sorry I am for what I did. I know that what I did was bad.... I apologize to you and the people I have hurt. I want you to know that I am not a bad person nor do I like to hurt other people. If you want to know, I have never been in a gang, I have never used drugs and I do not have any tattoos that belong to gangs. This is my first time in a prison and I see how sad it feels to be here locked up. I will never do again what I did. I want to let you know that the robberies I committed, I don’t know why I did them; however, you should realize that I never used real weapons as it wasn’t my intention to hurt anybody. I ask you for an opportunity to be released... since I want to continue with my studies so that I could be somebody in the future. I am afraid to spend too much time locked up and I know I should have thought about this before I did what I did. I swear to you that I will never repeat what I did. And I’m not only swearing it to you, but also swearing it to God in whom I believe. I hope that you will forgive me and that you will give me the opportunity to be released. And again I apologize for the harm that I’ve done.”
The court committed D.Y. to DJJ for a maximum term of six years with credit for 118 days already served. The court stated that it had “considered all local less restrictive programs and forms of custody and is fully satisfied that they are inappropriate dispositions at this time and that the minor can better benefit from the various programs provided by the Department of Juvenile Justice. [¶] [T]he mental and physical condition and qualifications of the ward are such as to render it probable that the minor will be benefited by the reformatory, educational discipline or other treatment provided by the Department of Juvenile Justice.” The court also ordered D.Y. to pay restitution of $240 to Singh and prohibited him from having any contact with the victims. Restitution to the remaining victims is to be determined by the probation officer.
Discussion
D.Y. challenges the trial court’s decision to place him at DJJ, arguing that there was insufficient evidence that the placement would benefit him. “A juvenile court’s commitment order may be reversed on appeal only upon a showing the court abused its discretion.” (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.) “ ‘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.)
The court may commit a juvenile offender to DJJ only if the minor has committed an offense listed in section 707, subdivision (b) and 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 [DJJ].” (§ 734.) “Although the DJJ is normally a placement of last resort, there is no absolute rule that a DJJ commitment cannot be ordered unless less restrictive placements have been attempted. [Citations.] A DJJ commitment is not an abuse of discretion where the evidence demonstrates a probable benefit to the minor from the commitment and less restrictive alternatives would be ineffective or inappropriate.” (In re M.S. (2009) 174 Cal.App.4th 1241, 1250.)
There is no dispute that robbery is listed in section 707, subdivision (b), thus rendering D.Y. eligible for placement at DJJ. In exercising its discretion to make such a commitment in this case, the juvenile court explored at length what would be an appropriate placement for D.Y. and the evidence concerning conditions at DJJ. The court observed, “The consent decree is from 2004. The question is what has happened since 2004. And I don’t know what’s happened since 2004 except there’s been a consent decree and broad assertions that the system continues to be broken except for these two areas in which there has been some improvement; but I don’t know how much, in what facilities, or to [w]hat degree that affects me. And in general, summing it up, the reason it affects me is this: If I’m under the obligation under the law which I am to impose a disposition that is consistent with the minor’s rehabilitation and also takes into account public safety, and the consent decree entered into by all the parties, including the State of California, indicates that the system cannot deliver rehabilitation that’s sufficient for this minor, then I’d be [abdicating] my oath to commit him there. On the other hand, the only two areas which appear to apply to this minor are the two areas which the Little Hoover Commission report says there’s been improvement in.... I want to know what improvement there’s been by reference to one of these reports for which there’s been an acknowledgement by the parties that the findings are accurate, that is, the consent decree.”
At the outset of the disposition hearing the court stated that it was “inclined but not committed to following the probation officer’s sentencing disposition recommendations as to this minor if I could be satisfied that I’m not doing so in derogation of my oath, and I can’t be sure at this time based on what the consent decree states.” At the continued hearing, the court quoted section 202, subdivision (b), which provides that “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.” The court also quoted subdivision (e) of that section, that “ ‘punishment’... does not include retribution....”
When D.Y.’s attorney argued that D.Y. should be placed at YOTP, the court queried, “What am I to do with the fact that he was screened for YOTP and he was found inappropriate because of the level of his violence of his committed offenses?” D.Y.’s attorney responded that the representative from YOTP had said that although as a policy the program does not accept 707, subdivision (b) offenders, there were some youths in the program who had committed such offenses, and that “they offer exactly the type of services that DJJ is supposed to offer. They actually offer school all day. They offer therapy. They offer a parole officer that continues from the program into his eventual release.... I think YOTP is the answer for [D.Y.]”
The court observed that in his testimony, D.Y. “tended to minimize some of his involvement, specifically with respect to one incident, where I think he said he drove in a car, parked several blocks away.... [¶]... [¶] And it was unclear to me from his testimony whether he was actually admitting that he knew a robbery was going to be committed or not. I think part of his testimony led me to believe that he was saying he did not know, part of his testimony led me to believe that he thought it was likely to happen.... And that concerns me because you rightly concentrate, to some degree, on whether or not he accepted responsibility for what he did.” The court then quoted the disposition report that D.Y. “was respectful but not forthcoming throughout the interview. Regarding the instant offense, the minor agreed with the police report as summarized above. When questioned, the minor said he committed the robbery because he needed the money.” D.Y.’s attorney disagreed with this characterization and suggested that. D.Y. “is a very soft-spoken young man, and there is some language difficulty in talking to him and some – I think – anxiety on his part – given that he accepted responsibility for his involvement....”
In making its decision, the trial court observed that D.Y.’s position “taken to its logical conclusion, is that no other commitments should be made in the State of California to DJ[J] unless and until the consent decree is fully satisfied, and I reject that proposition. I don’t think that’s what’s required. I think the courts continue to have discretion, as they’ve always had, with respect to those decisions. I am influenced a lot by the fact that the primary areas of concern for [D.Y.] are education and safety—and not the other areas, including mental health and some of the other—particularly, that area and others that have been highlighted [as] being particularly problematic. I don’t dispute the findings that I have read.... However, it is true that there has been some improvement in some of the facilities.... I’m not sure what my position would be had it not been for the observations made in the Little Hoover Commission Report.... [I]t would certainly concern me if there were no improvements in the areas that concern [D.Y.] I do find, based on the facts... victim selection, the number of crimes, the use of weapons, the time over which the various offenses occurred—affording [D.Y.] the opportunity to reevaluate what he was doing—that he does pose a significant danger to the community, and I am going to follow the recommendations of the Probation Department in this matter.”
There is little doubt from this record that the juvenile court carefully considered the arguments that were made by D.Y. in support of a different placement. Although placement at YOTP may have been feasible, there were acceptable reasons for the court to reject that suggestion, including the serious and violent nature of D.Y.’s multiple offenses and the fact that YOTP does not generally accept violent offenders. The court considered the shortcomings of DJJ but also took into account improvements that have been made in the areas that are relevant to D.Y.’s commitment, namely education and safety. Although the placement may yet be far from ideal, there is nevertheless sufficient evidence to support the juvenile court’s finding that the placement will provide some benefit to D.Y. and that a less restrictive placement is inappropriate.
Disposition
The judgment is affirmed.
We concur: McGuiness, P. J. Jenkins, J.