Opinion
A100540.
7-30-2003
In re GARY F., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. GARY F., Defendant and Appellant.
Gary F. appeals from a dispositional order committing him to the California Department of the Youth Authority (CYA). He contends that the juvenile court abused its discretion in ordering a CYA commitment. We affirm.
I. PROCEDURAL AND FACTUAL BACKGROUND
On March 19, 2002, the Alameda County District Attorney filed a second amended Welfare and Institutions Code section 602 petition, charging defendant with two counts of attempted carjacking (Pen. Code, §§ 664, 215 [counts one and three]), one count of grand theft (Pen. Code, § 487, subd. (a) [count two]), and one count of assault with a firearm (Pen. Code, § 245 , subd. (a)(2) [count four]). The petition also alleged that defendant "discharged and personally used a firearm" (Pen. Code, § 12022.53, subds. (b), (c)) in the commission of the attempted carjacking.
Unless otherwise indicated, all section references are to the Welfare and Institutions Code.
On March 26, 2002, defendant admitted the attempted carjacking charge in count three, with a Penal Code section 12022, subdivision (b)(2) deadly weapon use enhancement. All other charges were dropped.
The underlying factual basis for defendants admission stemmed from defendants attempt to carjack two vehicles. On February 28, 2002, Michael Rocha, an independent truck driver, was picking up a Plymouth that was being repossessed. Rocha was traveling with his wife Jeannie, and their four-year-old daughter, Shauna. After driving the Plymouth onto the back of the truck, Rocha left the keys in the ignition as he exited from the car to secure it. Leaving Shauna sleeping, Jeannie got out to assist Rocha in securing the Plymouth.
This summary of the facts is derived from the police report and the two probation reports.
Defendant entered Rochas truck, took Shauna out of the truck and then tried to put the truck in gear, but repeatedly stalled the engine. Rocha approached the truck, and ordered defendant to get out. As Rocha and his wife checked the truck for stolen items, defendant moved to the back of the truck in an attempt to carjack the Plymouth. Rocha entered the Plymouth through the passenger door as defendant tried to start the car. After Rocha pulled the key out of the ignition, defendant pulled out a gun and said, "Dont try anything." Rocha ran from the car, and defendant fired the gun at him once. Defendant fled but was apprehended shortly thereafter.
Defendant appeared delusional at the time of his arrest. He was taken to Alta Bates Hospital for evaluation, where he admitted ingesting marijuana—possibly laced with "ecstasy"—and alcohol. Defendant admitted that he tried to steal both the truck and the car, and that he fired a pistol at Rocha.
The dispositional hearing was held on April 23, 2002. The probation department recommended a CYA commitment. After hearing argument, the court continued the hearing to allow the CYA to evaluate defendant as a suitable candidate and to give the probation department additional time to consider less restrictive placements. The court noted, though, that it was leaning toward a CYA commitment despite defendants lack of a criminal record, based on the severity of the crime and the fact that defendant refused to take his psychiatric medication in juvenile hall.
At the continued dispositional hearing on August 28, 2003, the court considered the CYA evaluation, which recommended placement in a locked facility other than the CYA. The assessment also indicated, however, that a CYA commitment would be appropriate if a suitable county program was not available. The court postponed the matter for another two weeks to allow the probation department to determine whether a local placement in a secured facility was possible.
On September 11, 2002, the probation department notified the court that it was unable to find a program at the county level that was secure, met defendants needs and served offenders who were now adults. Still not convinced the CYA was the appropriate placement, the court released defendant on electronic monitoring for 30 days, pending disposition. The court further ordered defendant to begin participating in a potential alternative program, Youth Alive!, and to enroll in drug treatment and outpatient therapy programs.
At the final dispositional hearing on October 9, 2002, the court heard oral argument and considered defendants progress report derived from the previous 30-day period. The probation departments report indicated that Youth Alive!, while willing to work with defendant, was understaffed and did not have an opening. The report also noted that defendant had enrolled in a substance abuse class, and met with a doctor at Kaiser, but that defendant missed several appointments with his probation officer, allegedly because of his mothers illness. The report stated, in sum, that the probation department intended to stand by its recommendation for a CYA commitment. The court concluded a CYA commitment would be appropriate and beneficial for defendant, and ordered the defendant to the CYA for a maximum period of seven years six months, less 226 days of custody credit. This timely appeal followed.
II. DISCUSSION
The commitment of a minor to the CYA is reviewed for abuse of discretion. (In re Michael D. (1987) 188 Cal. App. 3d 1392, 1395, 234 Cal. Rptr. 103.) "An appellate court will not lightly substitute its decision for that rendered by the juvenile court. 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." (Ibid.) The juvenile court has not abused its discretion if its decision is based upon substantial evidence in the record that the commitment will be of probable benefit to the minor and that less restrictive alternatives would be ineffective or inappropriate. (Id. at p. 1396; In re Teofilio A. (1989) 210 Cal. App. 3d 571, 576, 258 Cal. Rptr. 540.)
In 1984, the Legislature replaced provisions of section 202, emphasizing different priorities for the juvenile justice system. (Compare Stats. 1983, ch. 1135, § 1, pp. 4306-4307 with Stats. 1984, ch. 756, § 2, pp. 2726-2727.) Under the current statute, public safety and protection may play a role in ordering a commitment to the CYA. (In re Michael D., supra, 188 Cal. App. 3d at p. 1396; § 202, subd. (b).) In determining whether commitment would be of benefit to the minor, the court may also consider "punishment as a rehabilitative tool." However, a minor should not be committed to the CYA solely on retributive grounds. (Ibid.)
Defendant first argues the court abused its discretion in ordering a CYA commitment by failing to consider less restrictive placement options. Citing language from In re Teofilio A. and In re Lorenza M., he contends that a CYA commitment must be used as a last resort in juvenile punishment, only in the most serious cases and only after all else has failed. (In re Teofilio A., supra, 210 Cal. App. 3d at p. 578; In re Lorenza M. (1989) 212 Cal. App. 3d 49, 58, 260 Cal. Rptr. 258.) Defendant further asserts that the evidence must show the court explicitly or implicitly considered and rejected alternative dispositions before ordering a CYA commitment. (In re Teofilio A., supra, 210 Cal. App. 3d at p. 577.)
It is clear that "there is no absolute rule barring CYA commitment except as a last resort." (In re Tyrone O. (1989) 209 Cal. App. 3d 145, 151, 257 Cal. Rptr. 134.) As our Supreme Court stated in In re John H. (1978) 21 Cal.3d 18, 27: "The circumstances in a particular case may well suggest the desirability of Youth Authority commitment despite the availability of [less restrictive] alternative dispositions . . . ." In this case, however, the court did consider and reject less restrictive placements. The probation departments first dispositional report indicates several initial alternatives were explored and excluded, including Camp Sweeney, Placement, and the Family Preservation Unit. Camp Sweeney deemed its program inappropriate for defendant, based on his mental health evaluation and his use of a weapon in the offense. Defendant was also ineligible for Placement or the Family Preservation Unit, having reached 18 years of age.
Moreover, the court continued multiple dispositional hearings for the very purpose of considering less restrictive placements for defendant. At the close of the first dispositional hearing, the court postponed its decision, ordering a CYA diagnostic evaluation and directing the probation department to identify any placement alternatives, including any out-of-state programs with mental health services. At the continued dispositional hearing, the court considered the CYAs diagnostic evaluation. The court noted the CYAs determination that a CYA commitment was appropriate, if a "secure" local placement option could not be identified. The court again postponed its final ruling, ordering the probation department to further research appropriate local alternatives, given defendants age and his need to be in a "secure" setting.
After further research into viable alternatives, the probation departments memorandum for the third dispositional hearing read: "We were unable to find a single program at the county level that is secure, meets the many identified needs of the subject, and also serves offenders who have reached adult status." Though defendant suggested placement in a potential alternative, Youth Alive!, the program was understaffed and did not have an opening for defendant. Thus, the record shows the court carefully considered numerous less restrictive placements for defendant, but determined they were inadequate or inappropriate given his age and needs.
Defendant also claims that the court abused its discretion in finding defendant would benefit from a CYA commitment. He contends that there is no evidence suggesting that his temporary disposition of electronic monitoring, drug treatment and group therapy was not working. He further argues that his lack of a criminal record and his lack of criminal sophistication indicate that he would not benefit from a CYA placement.
The evidence, however, supports the courts ruling that a CYA commitment was the most appropriate placement option for defendant. While defendants progress report noted that defendant enrolled in a substance abuse class and met with a therapist prior to the hearing, the report also revealed that defendant missed repeated appointments with a probation officer and an appointment with the Youth Alive! program, allegedly due to his mothers illness, and that he made no commitment to a therapy plan. The court also had before it reports underscoring defendants potential for violence and threat to public safety. His probation officer indicated: "We cannot predict Garys potential for violence or the danger he poses to the community; though he claims he will never again take any drugs, he has also refused to take any anti-psychotic medications prescribed for him in Juvenile Hall." A diagnostic evaluator also stated: "On the basis of Garys more recent behavior while in the community, i.e.[,] carrying a gun, and even shooting the gun when he became overwhelmed with paranoid ideation and distortions in his thought processes, Garys potential for violence is very high if he is not treated psychiatrically and left unmedicated." As previously noted, public safety and protection may play a role in determining the appropriateness of a CYA commitment. (In re Michael D., supra , 188 Cal. App. 3d at p. 1396; § 202, subd. (b).) The crime committed by defendant was a serious offense. Considering the nature of the offense of attempted carjacking, the trauma to the three victims, and the use and discharge of a gun, the record amply supports a finding that defendant posed too much of a risk to be placed in a community-based program, and instead required a CYA commitment.
In addition, the record shows the court determined that a CYA commitment was not only appropriate for defendant, but also beneficial. Defendant points to language in the CYA diagnostic evaluation—that his "functioning would deteriorate if committed to YA because he is criminally unsophisticated and naive"—to argue that he would not benefit from the CYA. The evaluation, however, stated that defendant would benefit from extensive counseling and vocational services and that he required a secure environment and would benefit from a highly structured regimen. Moreover, the evaluation recommended a CYA commitment if a secure facility offering extensive counseling and educational services could not be found at the county level. Given defendants need for substance abuse counseling and mental health services as well as educational/vocational programs, the court properly concluded "that the minors mental and physical condition and qualifications are such as to render it probable that he . . . will be benefited by the reformatory, educational discipline or other treatment provided by the California Youth Authority." (See In re Tyrone O., supra, 209 Cal. App. 3d at p. 153 [noting the CYA has long been recognized for its specialized institutions and rehabilitative program offerings].)
Defendants final contention is that the CYA commitment was motivated exclusively and improperly by the prosecutors desire for retribution. He cites In re Samuel B. in support of the claim that a CYA commitment cannot be based solely on the desire to punish a minor because of the seriousness of the offense. (In re Samuel B. (1986) 184 Cal. App. 3d 1100, 229 Cal. Rptr. 378, overruled on another point in People v. Hernandez (1988) 46 Cal.3d 194, 206, fn. 14, 249 Cal. Rptr. 850, 757 P.2d 1013.) As previously noted, "punishment as a rehabilitative tool" may be considered in determining the appropriateness of a CYA commitment. (In re Michael D., supra, 188 Cal. App. 3d at p. 1396.) Accordingly, the court considered the severity of defendants offense in making its final ruling for a CYA commitment. However, the nature of defendants offense was just one of many relevant factors considered in the courts evaluation process. The court contemplated a number of less restrictive placement options, finding them inappropriate or inadequate given defendants age and needs. Moreover, the court found a CYA placement beneficial for defendant and public safety, based on its secure, structured setting and diverse program offerings. The record substantiates the courts CYA commitment was carefully reasoned, and by no means motivated solely by a desire for retribution.
The court did not abuse its discretion in ordering a CYA commitment.
III. DISPOSITION
The order is affirmed.
We concur: KAY, P.J., REARDON, J.