Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JV110750
NICHOLSON, J.
Minor H.N. admitted that he was within the provisions of Welfare and Institutions Code section 602 in that he drove with willful wanton disregard for the safety of persons and property while attempting to elude a pursuing peace officer (Veh. Code, § 2800.2, subd. (a)), possessed methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and drove a vehicle with the intent to deprive its owner of possession (Veh. Code, § 10851, subd. (a)). He was committed to the Department of Corrections and Rehabilitation (CDCR), Division of Juvenile Facilities (DJF), for a maximum term of three years, not to exceed age 21.
“Since July 1, 2005, the Department of Youth Authority has been renamed ‘the Department of Corrections and Rehabilitation, Division of Juvenile Facilities.’ ([Welf. & Inst. Code,] § 1703, subd. (c).)” (In re Lemanuel C. (2007) 41 Cal.4th 33, 37, fn. 2.)
On appeal, the minor contends there was insufficient evidence that he would benefit from a DJF commitment. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2002, a petition was filed alleging that the then-13-year-old minor had committed two counts of petty theft (Pen. Code, § 484, subd. (a); counts one & two) and had given false information to a police officer (Pen. Code, § 148.9, subd. (a); count three). The minor admitted count one, and counts two and three were dismissed. The minor was adjudged a ward of the court and was ordered to complete five days in the Juvenile Work Project Program and 30 days of electronic monitoring.
Later that month, a subsequent petition was filed alleging that the minor had removed his electronic monitor. (Welf. & Inst. Code, § 871, subd. (d).) In May 2002, the minor admitted the allegation and the court committed him to the Youth Center.
In November 2002, an amended subsequent petition was filed alleging that the minor had committed auto burglary (Pen. Code, § 459) and four counts of auto theft (Veh. Code, § 10851, subd. (a)). The minor admitted one of the auto theft counts, and the remaining allegations were dismissed with a Harvey waiver. The minor was committed to the Sacramento County Boys Ranch.
People v. Harvey (1979) 25 Cal.3d 754.
In April 2003, a petition was filed alleging that the minor violated his probation by twice failing to obey directives to stop fighting (counts I & II), and by failing to return on time from a home pass (count III). Following a contested hearing, count I was found true and the remaining counts were dismissed. The minor was recommitted to the Sacramento County Boys Ranch.
In January 2004, a subsequent petition was filed alleging that the minor had committed petty theft. (Pen. Code, § 484, subd. (a).)
In March 2004, a subsequent petition was filed alleging that the minor had taken and driven an automobile. (Veh. Code, § 10851, subd (a).)
In April 2004, the minor admitted the allegation of the March 2004 petition and the January 2004 petition was dismissed with a Harvey waiver. The probation department was ordered to investigate the Rites of Passage and Glen Mills facilities for possible placement. Rites of Passage rejected the minor because it could not meet his treatment needs. Glen Mills rejected the minor due to his refusal to participate in their program. In July 2004, the minor was committed to the Optimist Residential Treatment Facility in Los Angeles.
In October 2004, the minor was terminated from the Optimist program because he became a physical threat to the safety of group home peers. He was detained pending a change of placement.
In November 2004, the probation department moved to modify the minor’s custody status, alleging that he had absconded from the transportation staff on the way to a future placement at the Genesis Family Center in Fresno. In March 2005, the juvenile court granted the motion.
In May 2005, a subsequent petition was filed alleging that the minor committed assault by means of force likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).) In June 2005, the minor admitted the allegation.
In August 2005, the juvenile court was notified that the Courage to Change Group Home had rejected the minor due to his criminal history and poor behavior at juvenile hall. The minor was later placed at the Bridge to Success Group Home in Ceres.
In October 2005, a petition was filed alleging that the minor violated his probation by remaining away from his placement overnight without permission (count I), failing to keep probation informed of his living and mailing address and telephone number (count II), and failing to obey a directive to return to his placement (count III).
In July 2006, the present second amended subsequent petition was filed. The underlying facts are not at issue and need not be set forth in this opinion. The minor admitted the allegations. Following a contested dispositional hearing, the minor was committed to DJF for a maximum confinement time of three years.
DISCUSSION
The minor contends his Sixth and Fourteenth Amendment rights were violated when the juvenile court committed him to DJF “without substantial evidence of probable benefit to him.” We are not persuaded.
Background
The only witness at the contested dispositional hearing was psychologist William Schouweiler. He had been a staff psychologist at DJF from 2002 to 2004. He conducted a psychological evaluation of the minor in May 2006.
Dr. Schouweiler theorized that the minor’s parents may have suffered from Posttraumatic Stress Disorder (PTSD) following their escape from Vietnam during the war. He diagnosed the minor as suffering from PTSD, through the mechanism of intergenerational transmission of trauma. He opined that the PTSD diagnosis explained a lot of the minor’s past delinquent behavior. PTSD is very treatable with cognitive behavioral therapy.
Dr. Schouweiler opined that the minor’s primary need was for substance abuse treatment in a highly structured secure environment. Once engaged in that counseling, he could begin to understand his other problems arising from his substance abuse, such as his PTSD and lifestyle deviances.
Dr. Schouweiler opined that the minor would not receive treatment for PTSD at DJF. Although DJF has “youth correctional counselors,” who could provide treatment similar to what the minor had been receiving at the group homes without success, DJF does not have mental health professionals who could provide treatment for PTSD. Dr. Schouweiler predicted that DJF would view the minor a “juvenile delinquent gang member” who would “be put into the general population.” Rather than help the minor extricate himself from the gang lifestyle, a DJF commitment would “push[]” the minor “further into it.”
At the request of defense counsel, Dr. Schouweiler evaluated the Sacramento Sheriff’s Department’s Housing for Accountable Living (HALT) program. He opined that it was “a good program that would allow [the minor] to keep in contact and build the bonds that he needs to with his family,” and enable him to work on problems such as substance abuse and PTSD.
Following the hearing, the juvenile court gave a lengthy explanation of its ruling. The court stated in relevant part:
“[S]everal efforts at level A placement have been made. The minor has a history of absconding from home placement facilities, as well as the Youth Center and the one abscond which was referred to where the minor jumped out of a group home van in the middle of traffic on his way to a Fresno group home.
“Probation concludes with the observation that, ‘The minor has exhausted all of the Probation Department’s resources in an effort to rehabilitate and/or accommodate his placement.’ This Court cannot take exception to that comment. Everything that can be done at the local level has been tried and failed. [¶] . . . [¶]
“The initial impression is [DJF] would be appropriate under the facts of this case. After a more thorough examination of his history, one can certainly understand why that would be Probation’s recommendation, as well as the petitioner, as represented by the District Attorney’s Office.
“In order to convince the Court that the minor would not, however, be benefited by a [DJF] commitment, the defense called Dr. Schouweiler. . . . [¶] . . . [¶]
“First, the doctor admitted that he has not worked at [DJF] since the reorganization and reconfiguration. He admits that he is not nor was he an administrator. That was not his primary thing. He does not appear to the Court to be an expert, for example, in what changes have been instituted at [DJF] since he left.
“For example, he claims that [the Chaderjian Youth Correctional Facility (CHAD)] is or should be for the worst of the worst, and that [the minor] will probably go there. One wonders, does that mean, in the doctor’s opinion, that [the minor] is the worst of the worst? And if he is not, why bother with the initial evaluation and intake process which goes on at Preston.
“On the other hand, he also states that he has heard that, ‘They are going to turn CHAD into a treatment institution.’
“And surprisingly, the doctor seems to be unaware of whether or not CHAD has a college program. Assuming that it does, he was asked, would it have some 300 wards enrolled? His response was, ‘I’m not aware of it, but I am not surprised if it does.’
The question was, “Are you aware that there’s over 300 people currently being housed by [DJF] who’s [sic] in post secondary education?” Thus the question pertained to DJF as an entity, not simply to the unit known as CHAD.
“Further, the doctor conceded that it is possible that [the minor] would be sent to DeWitt Nelson, which is set up for ‘good programers.’ [Sic.] DeWitt is open programming and has vocational job training.
“The doctor concedes the [DJF] does provide counseling for the wards in substance abuse, which the doctor referred to as the 12-step Hazelton approach, and which is offered at all [DJF] institutions, according to his testimony; anger management; and victim empathy.
“Other institutions within [DJF] also offer vocational training, such as Preston, which has masonry, computer labs, landscaping, to name some of which this Court is aware.
“Dr. Schouweiler’s concern is that [the minor’s] underlying problem stems from a diagnosis of post-traumatic stress disorder, and [the minor] will not receive treatment for that at [DJF]. And the Court asked him about this. He is not receiving treatment for that here in detention, in the hall. And the doctor offers no viable alternative where [the minor] would receive such treatment in a secure, structured environment.
“The doctor is clearly uninformed with respect to the current status of the HALT program. This Court takes judicial notice of its own records in the case of [another minor], heard this July in this department, wherein a letter from Captain Maness, Commander of the Rio Cosumnes Correctional Center, dated June 26, 2006, stated: [¶] ‘Effective immediately, HALT participants must first be eligible to be housed in minimum security before being accepted into the HALT program. No inmate requiring medium or maximum security housing will be accepted into the HALT program[.]’
“Compare and contrast that change with Dr. Schouweiler’s conclusions in his report at page 16 where he states, referring to [the minor], ‘Once engaged in counseling, he can begin to understand the other issues that are connected with his substance abuse, PTSD and lifestyle. I belive [sic] this can best be accomplished in a highly structured environment. Because [the minor] is a threat to abscond from an unlocked setting, a secure environment is advisable as much as for his own protection, as well as for the community’s.’
“This Court’s opinion is that [the minor] requires more than minimum security, and consequently, would be ineligible for HALT, and it would be inappropriate for sent [sic] [the minor] to the county jail for that purpose. Also, the funding was eliminated for treatment for substance abuse. And further, there would be no separate housing for HALT inmates from the general population of adult prisoners.
“To address a question posed by this Court on Wednesday, the doctor, while clearly holding [DJF] in disfavor, offered no realistic or viable alternatives in the nature of a secured institution other than to house the minor in the hall until he is 19.
“The Court specifically asked the doctor if the minor would receive treatment for his various emotional and mental problems, such as PTSD, if he were kept in the hall. He was unable to answer that question, an answer that was unsatisfactory to the Court.
“[DJF] does provide counseling, as stated previously, for drug awareness, victim awareness, gang awareness and anger management. [¶] . . . [¶]
“Dr. Schouweiler did not testify that [DJF] blatantly refuses to obey the law. Rather, his main point is that it seems to be beyond their ability to control the gang situation. There is no question that gangs are a huge problem in any institution here in California. That does not mean that the Court shall automatically, then, conclude that [the minor] will not benefit from a commitment to [DJF]. On that rationale, no one should ever be sent there.
“[DJF] is designed and instituted for the purpose of reforming juveniles such as [the minor]. They have a multitude of programs and mental health services beyond anything that our juvenile hall has to offer beyond basis high school classes.”
Accordingly, the juvenile court found “that the mental and physical conditions of this minor are such as to render it probable that he will be benefitted by the reformatory and educational discipline and other treatment provided by [DJF], and no suitable alternatives exists [sic] at the local treatment level.”
Analysis
“The decision of the juvenile court may be reversed on appeal only upon a showing that the court abused its discretion in committing a minor to [DJF]. [Citations.] 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. [Citations.] In determining whether there was substantial evidence to support the commitment, we must examine the record presented at the disposition hearing in light of the purposes of the Juvenile Court Law. [Citations.]” (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395; see In re Asean D. (1993) 14 Cal.App.4th 467, 473.) Those purposes include the “protection and safety of the public”; to that end, punishment is now recognized as a rehabilitative tool. (Welf. & Inst. Code, § 202, subds. (a), (b); In re Asean D., supra, at p. 473; In re Michael D., supra, at p. 1396.)
Welfare and Institutions Code section 734 provides: “No ward of the juvenile court shall be committed to [DJF] unless the judge of 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 [DJF].”
Thus, “[t]o support a [DJF] commitment, it is required that there be evidence in the record demonstrating probable benefit to the minor, and evidence supporting a determination that less restrictive alternatives are ineffective or inappropriate.” (In re Teofilio A. (1989) 210 Cal.App.3d 571, 576.)
In this case, Dr. Schouweiler opined that the minor required a “highly structured,” “secure” environment. The juvenile court agreed, concluding that the minor “requires more than minimum security.” The minor’s lengthy history of absconding from less secure facilities demonstrates that they are ineffective or inappropriate and makes it probable that the more secure environment at DJF would be beneficial. (See In re Teofilio A., supra, 210 Cal.App.3d at p. 576.)
Dr. Schouweiler opined that the minor’s “primary need” was substance abuse treatment. He testified, and the juvenile court found, that DJF provides substance abuse counseling at all of its facilities. Dr. Schouweiler opined that, because DJF counseling is provided by “youth correctional counselors” who are not mental health professionals, the treatment probably would not be very effective for disorders such as PTSD. But Dr. Schouweiler effectively conceded that at least some substance abuse counseling is prerequisite to the minor’s understanding of his PTSD and lifestyle issues. This record supports a finding that the minor probably would benefit from substance abuse counseling at DJF. (In re Teofilio A., supra, 210 Cal.App.3d at p. 576.)
The juvenile court found that DJF also provides counseling for victim awareness, gang awareness and anger management. The court further noted that institutions within DJF offer vocational training in areas such as masonry, landscaping, and computer training. The court found that DJF provides programs and services far beyond anything available to the minor at juvenile hall. Nothing in the record suggests the minor probably would not benefit from these programs and services.
To support his contention that the juvenile court’s finding of probable benefit is unsupported, the minor asks us to consider a series of court documents, produced in unrelated litigation in federal court, that were not before the juvenile court at the time of disposition. The minor relies on Code of Civil Procedure section 909, which provides in relevant part: “In all cases where trial by jury is not a matter of right . . ., the reviewing court may make factual determinations contrary to or in addition to those made by the trial court. . . . The reviewing court may for the purpose of making the factual determinations or for any other purpose in the interests of justice, take additional evidence . . . .” The minor also relies on California Rules of Court, rule 8.252(c)(1), which allows a party to “move that the reviewing court take evidence.” Curiously, the Attorney General has not addressed Code of Civil Procedure section 909. We deny the minor’s motion.
“Code of Civil Procedure section 909 does authorize appellate courts to make findings of fact on appeal. That authority should be exercised sparingly, however, and absent exceptional circumstances, no such findings should be made. [Citation.] Further, such authority will not be exercised except to affirm the judgment. [Citations.] Appellant, however, would have us exercise this authority to do just the opposite, that is reverse the judgment.” (In re Heather B. (2002) 98 Cal.App.4th 11, 14; fn. omitted.)
Our Supreme Court has suggested that the Code of Civil Procedure could be used, not to affirm a judgment, but to reverse a judgment with directions to enter judgment for the appellant. (Tupman v. Haberkern (1929) 208 Cal. 256, 269; Kabisius v. Board of Playground, etc. (1935) 4 Cal.2d 488, 494.) But in this case, the evidence proffered by the minor would not lead to an unqualified affirmance or an unqualified reversal. Rather, it would require a remand to the juvenile court to select a dispositional option other than a DJF commitment. Code of Civil Procedure section 909 was not intended to prolong litigation in that manner.
DISPOSITION
The order of the juvenile court is affirmed.
We concur: BLEASE, Acting P.J., DAVIS, J.