Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. SJ07008067-08.
Reardon, J.
Upon sustaining allegations in a subsequent delinquency petition that (1) appellant Fred B. committed robbery, robbery in an inhabited dwelling, assault with a firearm, and residential burglary; and (2) the principal was armed with a firearm during commission of the robbery, the juvenile court committed the minor to the Division of Juvenile Justice (DJJ). It set the maximum terms of confinement at 14 years four months. The single issue on appeal is whether the juvenile court abused its discretion in committing appellant to the DJJ, the contention being that there was no substantial evidence of probable benefit to the minor from the commitment. We affirm the order of commitment.
The court found that appellant was an aider and abettor in the offenses.
I. BACKGROUND
A. Current Offenses
On June 4, 2010, John Struys lived in a studio apartment above a garage on Thermal Street in Oakland. Around 2:00 a.m. he awoke upon hearing a noise that sounded like a voice coming from outside. Struys went to the bathroom; coming out, he saw four or five people standing in the stairwell entry area. They were wearing dark sweat suits, hoods and ski masks. All were African-American.
Two persons held large pistols. One of the gunmen asked Struys for money, “pot” or weapons, and instructed him to lie on the floor, face down. He struck Struys across the left eye with the pistol; Struys reeled from the pain. Struys popped his head up a couple times; the gunman hit him on the top of his head with the pistol butt six or eight times. The other people were digging through Struys’s personal belongings.
When the robbers finished rummaging a couple minutes later, the person holding the gun on Struys tied his hands behind his back while most of the others left. They took his wallet with $140 in cash and a debit card, as well as his laptop computer and charger.
Officer Steven Lorda and a partner were dispatched to Thermal Street on a call from a neighbor advising that several African-American males in dark clothing entered Struys’s property. Arriving on the scene, Officer Lorda saw three men (two in their 30’s, one 18-20) in black clothing running from Struys’s driveway. When the men saw the patrol car, they turned around and took off in another direction. The officers began to pursue them in the patrol car; when they jumped a cyclone fence, the officers got out of the car to cut them off. The officers apprehended the three: Lewis Henderson, wearing a ski mask; Christopher Garner, and appellant. Appellant was breathing heavily. Four California identification cards, including cards belonging to Garner and appellant, were retrieved from a vehicle near the scene “associated with” Garner.
B. Proceedings on Current Offenses
At the jurisdiction hearing, the juvenile court indicated it could not say beyond a reasonable doubt that appellant was inside the apartment, but it did find appellant was an aider and abettor in the crimes.
The disposition report revealed that appellant’s mother began dating his father when she was 14 years old. They never married. Mother operated a hair salon in San Leandro for 15 years. Father was in and out of prison for drug offenses; contact between father and son was infrequent.
Mother reported that appellant displayed behavioral problems “practically since birth.” He had not completed an entire year of education since the sixth grade. She attributed behavioral issues to interfering with appellant’s education. In the past appellant pushed her when she attempted to discipline him. On occasion mother would search for her son on the streets, identifying a particular corner on MacArthur Boulevard in Oakland as his “block” for selling drugs. This block corresponded with appellant’s gang-affiliated tattoo, “MAC MOB.” Appellant said he had many friends and family members engaged in drug sales, and following their path “was easy.”
Over the years there were four referrals to Child Protective Services concerning appellant. Three were unsubstantiated. The fourth concerned a referral that a neighbor anally penetrated appellant when he was eight years old, and then threatened to kill appellant if he said anything. There was no disposition to this case. Mother claimed never to have heard of the incident and could not confirm or deny its legitimacy. However, appellant reluctantly confirmed the abuse and said the incident may correlate to his acting out behavior. He had been placed on psychiatric holds as well as camera watch while detained in juvenile hall. Appellant said that when he gets in “out of control states, ” he tries to smother or strangle himself. Appellant observed that the medication (a mood stabilizer) he was taking while in juvenile hall helped him.
Probation department staff screened appellant for out-of-home services, namely the DJJ, camp and the Family Preservation Unit. The screening panel determined that the DJJ was the most suitable option. He would be a “category 3” offender with three years before consideration of parole. The reporting officer noted that appellant had previously been found unfit for juvenile court jurisdiction, and considering his age, escalating delinquent conduct, the seriousness of the offenses, his failure to respond to prior rehabilitative services, and the need to protect the community, recommended the DJJ commitment.
At disposition the juvenile court clarified that the aider and abettor finding did not make a difference in its decision because this was a “heinous crime, ” where the evidence showed the perpetrators acted with a serious level of malice, complexity and sophistication. It also focused on appellant’s history of behavioral problems and extensive history in the juvenile justice system in two counties, notably his prior crimes and failed opportunities to rehabilitate. As well, appellant’s age—17 years 11 months—was significant. Appellant had “burn[ed] his way through the juvenile system, ” and “right now we’re out of time.” Also important was appellant’s education status, and the reality that he had not finished a complete academic year since the sixth year. The court noted that it appeared a disciplined, structured environment was most helpful for appellant. Finally, the court expressed concern about appellant’s mental health, the difficult circumstances of his life, and the need to address severe mental and emotional issues, including self-destructive behavior. There had been a “slight” improvement in appellant’s behavior since he began taking the mood stabilizer. The court concluded: “[T]he best way to turn this minor on the right path, to give him the educational opportunity that he has missed, to keep him out of the gang environment, the drug environment that he has been involved in on the street, to keep him out of harm[’s] way and to give him the positive structured environment that will hopefully make this the opportunity to turn him around, I believe that the [DJJ] is the only appropriate commitment under these circumstances.”
C. Prior Juvenile Proceedings and History
Born in 1992, appellant lived with his mother in the Bay Area until the family relocated to Stockton when he was 11. Appellant lived with his paternal grandmother in Victorville, California from October 2004 through June 2005, at which time he returned to Stockton where he remained through 2007.
1. San Joaquin County
Appellant’s delinquent history began in San Joaquin County. In June 2004, he “chest bump[ed]” one teacher and punched another in the stomach; she was eight weeks pregnant. That month appellant also vandalized his mother’s car. He was diverted in both cases and completed the Crossroads program. Then in August 2006, appellant and three others threatened to beat up two youths if they did not hand over their bicycles, which they did. Eventually the juvenile court sustained an allegation of misdemeanor grand theft, declared wardship and placed appellant on home supervision.
A psychological evaluation was prepared for disposition. Psychologist Roger Katz reported that appellant did not have an individualized education program or any history of learning or attention deficit problems. He had made a suicidal threat when detained. Dr. Katz summarized as follows: “[Minor] did not impress me as being streetwise, predatory, or delinquently oriented as much as he did emotionally troubled and needy. [He] was irritable, unhappy, mistrusting, and frustrated about having an absent father and a mother who worked long hours.” The provisional diagnoses were “disruptive behavior disorder NOS and dysthymia.” Mayo Clinic staff defines “dysthymia” as “a mild, but chronic, form of depression.” ()
In April 2007, shortly after disposition in the above matter, appellant argued with his cousin and brother and vandalized his home. The juvenile court sustained an allegation of attempted misdemeanor vandalism. The disposition report stated that appellant was receiving A’s and B’s at One Success, and that he had no diagnosed learning disabilities and no history of special education. At the June 26, 2007 disposition hearing, the court continued appellant on probation.
Meanwhile, on June 19, 2007, appellant was booked into San Joaquin County Juvenile Hall for violating the terms of his electronic monitoring program when he was found with other probationers in a residence strewn with small plastic bags consistent with illegal narcotics packaging. The violation of probation notice was “[d]ischarged” two days later on June 21.
Appellant also had difficulties in the school environment. He was placed on leave in May 2006 upon acting out after his cell phone was confiscated; suspended several more times that year for various defiant actions and infractions; and finally “exited” from school in January 2007, following the fourth suspension.
2. Alameda County
By the fall of 2007, appellant was back in Alameda County. Wardship was declared on a sustained allegation of accessory to robbery of a youth’s cell phone in September 2007, and the juvenile court placed appellant on probation. The disposition report noted mother’s disclosure that her son had been “pushing limits” with her. She also noted that her son was a good student but the recent detention impacted his grades.
Adjustment to high school was problematic. An administrator described appellant’s attendance as “atrocious”; he was failing classes, and suffered several suspensions.
Appellant was arrested in December 2007 for possession of marijuana for sale. Pursuant to his admission, the juvenile court sustained allegations of the offense and ordered out-of-home placement. At that time the court accepted transfer of the wardship petition from San Joaquin County. Appellant arrived at Camp Sweeney on June 5, 2008, and escaped August 8, 2008. The Alameda County District Attorney (district attorney) filed an escape petition; a bench warrant for his arrest was issued.
While absent without leave from Camp Sweeney, on October 5, 2008, police officers detained appellant under circumstances leading to later allegations of possessing rock cocaine for sale and resisting a peace officer. Sheriff’s department officials arrested appellant pursuant to the warrant that November; appellant admitted the escape petition allegations. Then in December 2008, the district attorney filed a supplemental petition alleging the October 5 offenses. However, on motion of the district attorney the juvenile court dismissed the supplemental petition and treated the offenses “as additional misconduct on petition 04.”
The disposition report stated that while appellant was in custody in juvenile hall, he received a good progress report from his teacher and was earning A’s. A guidance clinic therapist who had been working with appellant recommended against placement in a group home setting, and agreed to weekly check-ins with appellant. Appellant apparently had an opportunity for after-school work at that time. The juvenile court referred appellant to the collaborative court for assessment. On February 5, 2009, it confirmed appellant’s acceptance into the Family Preservation Unit of the probation department, and released him on GPS monitoring.
The district attorney processed a subsequent petition in June 2009, alleging two drug offenses occurring the previous month: possession of cocaine base for sale (May 14) and possession of cocaine base (May 29). Appellant admitted the latter offense.
In connection with the May 14, 2009 incident, when appellant was placed inside the patrol car he kicked the roof, yelled uncontrollably, cried, and banged his head on the window bars. When advised he was being arrested on drug charges, appellant “began talking to people that were not present and making incoherent statements.” Upon observing appellant’s behavior, the arresting officer placed him on a psychiatric hold.
3. Back in San Joaquin County
As mother reportedly had relocated back to Stockton, the matter was transferred to San Joaquin County for disposition. The juvenile court committed appellant to camp. However, shortly thereafter the San Joaquin County Probation Department filed a violation of probation notice alleging that while appellant was in juvenile hall awaiting a camp bed, he committed numerous disciplinary infractions. Appellant admitted the violations; the court vacated the camp commitment and released him to the county’s Family Vision program.
In December 2009, appellant was expelled from the Manteca Unified School District for threatening a female student.
Then on January 11, 2010, the San Joaquin County Probation Department filed another probation violation notice asserting that appellant failed to obey court directives and failed a drug test. The papers stated appellant was missing appointments with Family Vision staff, did not attend the program’s meetings and classes, and was not attending school.
4. Return to Alameda County
Approximately two weeks later, the district attorney submitted a petition alleging appellant personally used a firearm during an assault with a firearm, and inflicted great bodily injury; attempted a robbery while personally using a firearm; discharged a firearm from a vehicle at another person; and negligently discharged a firearm. The prosecutor sought remand to adult court, pursuant to Welfare and Institutions Code section 707.
Statutory references are to the Welfare and Institutions Code. This statute sets forth a procedure for determining whether a minor aged 16 years or older who has violated one or more enumerated offenses is “a fit and proper subject to be dealt with under the juvenile court law....” (§ 707, subd. (a)(1).)
The section 707 behavioral study stated that a psychiatric social worker had been working “on and off’ with appellant since 2008. He was taking a mood stabilizer and had a “history of depression, mood disorder and possible P.T.S.D.” While on the medication appellant’s adjustment “improved greatly.” He was on “top citizen status” at juvenile hall and was a unit worker.
On April 30, 2010, the juvenile court found appellant was “not amenable to the care, treatment and training through the Juvenile Court” and transferred the matter to adult court. The next month the case was dismissed for lack of evidence.
Appellant was transferred in custody to San Joaquin County based on a bench warrant issued on the January 11, 2010 probation violation notice, but wardship was returned to Alameda County as of May 20, 2010, upon finding that county to be his place of residence.
II. DISCUSSION
We will reverse a juvenile court commitment order only upon a showing of abuse of discretion. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.) And of course findings of the juvenile court must be supported by substantial evidence. (Id. at p. 1330.)
Our statutory delinquency scheme sets forth the appropriate factors to consider upon disposition. Section 202, subdivision (b) provides that “[m]inors 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.” In determining disposition, the court shall consider the minor’s age; the circumstances and gravity of the offenses which the minor committed; and the minor’s prior delinquent history. (§ 725.5.) Further, prior to committing a minor to the DJJ, the court must be “fully satisfied that the mental and physical condition 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 the Youth Authority.” (§ 734.) thus, there must be record evidence demonstrating a probable benefit to the minor by a DJJ commitment, as well as the “inappropriateness or ineffectiveness of less restrictive alternatives.” (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.)
Additionally, section 706 requires the juvenile court to hear evidence on the proper disposition of the minor, and it shall receive in evidence the probation officer’s social study and “any other relevant and material evidence....”
From these statutory mandates it is clear that in arriving at the appropriate disposition, the juvenile court is tasked with considering and evaluating the broadest range of information pertinent to the minor. (See In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684-1685.)
Appellant posits that “juvenile law requires primary consideration [of] the best interests of a minor” in rendering a disposition. However, the above mandates demonstrate that our delinquency laws rest on dual concerns, namely “ ‘(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.... ” ’ [Citations.]” (In re Schmidt (2006) 143 Cal.App.4th 694, 716.)
Appellant claims there is no credible evidence of probable benefit to him from a DJJ commitment and complains the court erred in not considering less restrictive mental health placements. Appellant insists he is not a violent person but had been easily influenced by older males to participate in criminal activity, and underscores that he suffered sexual abuse at a young age.
The juvenile court properly exercised its discretion in arriving at an appropriate disposition. It recounted with specificity appellant’s failure “to be rehabilitated” through past program and placement efforts within the juvenile justice system in two counties. The minor rejected each and every effort to “get him on the right track” and “offer him the least restrictive means of rehabilitation available....” The recitation of prior juvenile proceedings and history detailed in part I.C., ante, amply supports this finding. On the other hand, the court observed that appellant had performed much better academically when in a secure setting, and that a structured environment appeared to “help the minor most.” So, too, there had been a slight improvement in appellant’s behavior, again while in a secure setting, since taking mood stabilizing medication. In this vein, the court indicated that appellant’s mental and emotional issues needed to be addressed. The disposition report informed the court that the DJJ would assess appellant’s treatment needs, including mental health issues, which could be addressed through a variety of treatment modalities. At that time education needs, gang issues and substance abuse needs would also be evaluated. In sum, the court concluded, on substantial evidence, that the “positive structured environment” of the DJJ was the only suitable commitment for appellant.
Appellant also maintains that an adequate “probable benefit” finding must be backed by a particularized determination “that the programs provided at DJJ will adequately address” the identified needs. The juvenile court’s job is to determine if the evidence supports a finding that it is probable the minor will benefit from the DJJ commitment. There is no requirement that the court find exactly how a minor will benefit from the commitment. (In re Jonathan T. (2008) 166 Cal.App.4th 474, 486.) The court did just that.
Appellant further tosses out that a court abuses its discretion when the evidence demonstrates there “may be” less restrictive alternatives that would be effective or appropriate, citing In re Pedro M. (2000) 81 Cal.App.4th 550, 555-556. First, appellant misrepresents Pedro M. There the reviewing court recited the basic concept that a DJJ commitment does not constitute an abuse of discretion where the evidence shows probable benefit to the minor and that less restrictive alternatives would be inappropriate or ineffective. Here, the court implicitly found that less restrictive alternatives would not be appropriate or effective, noting the failure of all previous nonsecure placements, including his absconding from Camp Sweeney. In addition, the court correctly considered all the section 725.5 factors. In terms of the gravity of the current offenses, in the court’s words, “[t]his was a heinous crime” that showed a “level of sophistication that warrants very serious consequences.” Appellant’s age, just shy of 18 years, was also a proper factor weighing in the dispositional calculation. He was not a young teenager who would be unduly influenced or coerced by more criminally seasoned DJJ wards. His prior delinquent history, both on the streets and in school, and including the fact that he was on probation at the time of the current offenses, was extensive and unrelenting. Short of commitment to a structured, secure environment, the evidence showed that appellant could not extricate himself from the life of the streets and all that such a lifestyle entailed.
III. DISPOSITION
The order committing appellant to the DJJ is affirmed.
We concur: Ruvolo, P.J., Rivera, J.
In connection with the second incident, appellant became very agitated at school when his probation officer attempted to take him into custody for repeatedly violating the electronic monitoring program. He feigned fainting while being booked. When an officer revealed a plastic bindle of suspected rock cocaine retrieved from his jacket, appellant began flopping on the floor, screaming and yelling. He ran into a concrete wall, knocked over a table and grabbed a metal detector, repeatedly slamming his head into it. The staff director requested placing appellant on a psychiatric hold, although he believed appellant engaged in the behavior to avoid incarceration. Once in the patrol car, appellant managed to kick out a rear window.