Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 57500
BLEASE, Acting P. J.
Hosea G. appeals from the dispositional order of the juvenile court. After admitting that he committed battery (Pen. Code, § 242), statutory rape by a person not more than three years older than the victim (Pen. Code, § 261.5), and possession of cocaine base (Health & Saf. Code, § 11351.5), he was continued as a ward of the juvenile court (Welf. & Inst. Code, § 602) and committed to the Division of Juvenile Justice of the Department of Corrections and Rehabilitation, formerly the California Youth Authority (CYA) for a maximum period of four years.
All further section references are to the Welfare and Institutions Code unless otherwise specified.
Effective July 1, 2005, the California Youth Authority (CYA) was renamed the Division of Juvenile Justice of the Department of Corrections and Rehabilitation (DJJ). (Gov. Code, §§ 12838, subd. (a), 12838.5.) However, for purposes of clarity, we shall refer to it as CYA because both statutory and decisional law continue to use that designation.
On appeal, Hosea challenges the order of commitment on the grounds it violates due process and lacks evidentiary support. He further contends the juvenile court erred by failing to appoint a responsible adult as his educational representative. We find no error and shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Early Petitions and Delinquent History
Hosea was first adjudged a ward of the court when he was 11 years old. (§ 602.) Thereafter, he appeared before the juvenile court on a regular and frequent basis for violating probation and committing new offenses. As a result of this behavior, he was placed on probation with home supervision with later electronic monitoring, and then placed in juvenile hall and several group home placements.
Hosea was born on February 8, 1989.
Hosea admitted committing three counts of battery (Pen. Code, § 242), resisting arrest (Pen. Code, § 148), making a criminal threat (Pen. Code, § 422), and one count of battery with serious bodily injury. (Pen. Code, § 243, subd. (d).)
On September 27, 2005, Hosea hit his elderly father. He entered a negotiated plea to a section 602 petition, admitting one count of misdemeanor battery. (Pen. Code, § 242.) The juvenile court adjudged him a ward of the court and released him to the custody of his mother on February 15, 2006.
Because Hosea entered negotiated admissions to the petitions, we take the underlying facts from the probation officer’s report.
On June 12, 2006, four months after being released to his mother’s custody, Hosea committed a brutal sexual offense against 11-year-old D. W. On the afternoon of that date, D.W. was visiting her 11-year-old friend Jose. The two children walked to a house where they played video games until 8:00 p.m. Three males including Hosea, Hosea’s brother Joseph, and an unidentified male, walked in. The males began touching D.W. and she told them to stop, informing them that she was only 11. Ignoring her, the unidentified male said “[t]his is going to be fun” and continued rubbing her shoulders. Jose told them to stop and left the room.
The unidentified male then grabbed D.W. and pulled her into another bedroom where he put her on the bed and told the other two to hold her down. Joseph held her hands above her head and Hosea held her feet. She told them to stop, saying she was only 11, but the unidentified male said he did not care. While Hosea and Joseph held her down, the third male removed her clothing, inserted his finger in her vagina, raped her, and then forced her to orally copulate him. Afterwards, Hosea raped her and forced her to orally copulate him as did Joseph. The three males each repeated their acts of rape and oral copulation. Afterwards, they laughed and then fell asleep and D.W. managed to flee and report the crimes.
Two months later, on August 14, 2006, Hosea was loitering near a car wash. He ran when a police officer asked him his name. When the officer detained him, Hosea gave him a false name. Hosea was taken to juvenile hall where he was searched. Officers found a baggie containing rock cocaine lodged in the cheeks of his buttocks. Hosea admitted that he had used cocaine two hours earlier.
Again Hosea entered negotiated pleas to the section 602 petitions filed by the district attorney, admitting one count of statutory rape by a person not more than three years older than the victim (Pen. Code, § 261.5) and possession of cocaine. (Health & Saf. Code, § 11351.5.) After a contested dispositional hearing, the juvenile court committed him to the CYA for a maximum period of confinement of four years.
I.
CYA Commitment
Hosea contends the juvenile court violated his due process rights by committing him to the CYA because the court lacked critical information about his special education and mental health needs and its finding of probable benefit was not supported by substantial evidence. Respondent contends the commitment was proper and is supported by substantial evidence. We agree with respondent.
A. Disposition Hearing
1. The Experts
Defense expert Lyn Bettencourt testified that Hosea was born addicted to drugs, had a long history of parental neglect and abuse and was provided with no formal education until he was 12 years old. He ran away from his placements so he could return home but was then continuously bounced back and forth between his mother and father as the court struggled with the question of custody. Most of his offenses involved physical altercations with his elderly father who had been physically abusive to him.
Hosea has refused to take medication for hyperactivity, which could have a long-term adverse effect on his behavior. In addition, he has poor socialization skills and acts inappropriately towards authority figures.
Hosea participated in a placement program in Southern California and was then moved to an out-of-state program in Arizona, which provided special education. He did well in those placements until he began acting out because he wanted to go home.
Bettencourt reviewed the court ordered psychological evaluation report prepared by Dr. Katz in January 2001. In that report, Dr. Katz determined that Hosea’s intelligence tested two points above the level of mental retardation, he should have no contact with his father and he needs medication for his hyperactivity and depression although he refuses to take it. Dr. Katz found no indication Hosea was involved with gangs but concluded he had poor social skills, acted immature, and needed close supervision.
In Bettencourt’s opinion, a more current psychological assessment was needed because Dr. Katz’s report did not necessarily reflect an accurate picture of Hosea as he was five years later.
Bettencourt also opined that Hosea would benefit from programs in the probation department such as the county camp program and the “KADAP” program. He would not benefit from a commitment to the CYA because he was not a violent felony offender and was not influenced by gangs. However, once placed in CYA, he may start to strike out at others. Bettencourt concluded Hosea could be returned to the community without major risk.
Nevertheless, Bettencourt admitted that Hosea would not “gain a whole lot from being in juvenile hall.” He also admitted on cross-examination that Hosea could benefit from the programs at CYA, including additional educational and vocational training, and that he was not a good influence on other minors in the juvenile hall.
Joseph Antenucci, an intake consultant with the CYA, testified for the prosecution that if Hosea were committed to the CYA, he would receive substance abuse and anger management counseling, he could continue with his education, and once he turned 18, he could be transferred to a CYA adult facility where he would receive vocational training. Hosea’s medicinal and drug needs would also be addressed as would the appropriateness of his sexual behavior.
2. The Court’s Findings and Decision
The juvenile court committed Hosea to CYA after making a lengthy statement in which it found it had exhausted all local options to rehabilitate him and that the CYA was his final chance. The court found Hosea had failed in at least five different group placements, the statutory rape offense “is extremely serious”, Hosea is way behind in his credits for high school graduation, he is addicted to rock cocaine, and has had over 125 incidents while detained in juvenile hall, 15 of which occurred since September 7, 2006. The court further found Hosea was tried on probation in his parent’s custody and failed to reform, that they had failed to provide for his proper maintenance, training and education, and were incapable of doing so, and that continuance in the home would be contrary to Hosea’s welfare and detrimental to his best interests.
The court noted it had allowed Hosea to go back to his family with no success because his family had a long history of dysfunction and took notice of 15 prior referrals to CPS beginning when Hosea was born addicted to drugs and continuing to September 6, 2001.
The court concluded that Hosea would receive a probable benefit “from the reformatory and educational discipline and other treatment provided by [the CYA] and that no suitable alternatives exist[] at the local treatment level.” Additionally, the court found that a commitment to camp or the KADAP program were not viable alternatives.
B. Analysis
Minors have a constitutional right to due process before being deprived of their liberty. (In re Gault (1967) 387 U.S. 1, 31-57 [18 L.Ed.2d 527, 548-563]; Parham v. J.R. (1979) 442 U.S. 584, 600 [61 L.Ed.2d 101, 117].) Because state laws that vest sentencing discretion with the trier of fact create a liberty interest (Hicks v. Oklahoma (1980) 447 U.S. 343, 346 [65 L.Ed.2d 175, 180]), the state must adhere to its statutory procedures when determining whether a commitment resulting in a loss of liberty shall be imposed. (Fetterly v. Paskett (9th Cir. 1993) 997 F.2d 1295, 1300.)
The juvenile delinquency statutory scheme grants the juvenile court discretion to commit a minor to a place of physical confinement when the minor has been adjudged a ward of the juvenile court. (§§ 202, subd. (e)(5), 726, subd. (c).) To make a commitment to the CYA, the juvenile court must find (1) there will be a probable benefit to the minor from the commitment, and (2) that less restrictive alternatives would be ineffective or inappropriate. (§ 734; In re Pedro M. (2000) 81 Cal.App.4th 550, 555-556; In re Michael D. (1987) 188 Cal.App.3d 1392, 1397; In re Robert D. (1979) 95 Cal.App.3d 767, 773.)
In making its decision, the juvenile court must consider the two-fold purposes of the juvenile delinquency laws (In re Michael D., supra, 188 Cal.App.3d at p. 1396), (1) to rehabilitate the minor so as to 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 . . . and each minor.” (§ 202, subds. (a), (b) & (d); In re Myresheia W. (1998) 61 Cal.App.4th 734, 740-741.) These purposes require that the minor be held accountable for his behavior and receive care, treatment, and guidance that is consistent with his best interests, and appropriate for the circumstances. The court may also consider punishment as a rehabilitative tool, although punishment does not include retribution. (§ 202, subds. (b) and (e)(5).)
Evidence the court must consider in making its dispositional order includes the age of the minor, the circumstances and gravity of the offense committed, and the minor’s previous delinquent history. (§ 725.5.)
We review the juvenile court’s decision to commit the minor to the CYA for abuse of discretion. (In re Michael D., supra, 188 Cal.App.3d at p. 1395.) “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.” (Ibid.)
The record in this case more than satisfies that standard. At the time of the dispositional hearing, Hosea was 17 years old and had a lengthy criminal history that was of increasing seriousness. (In re Jose R. (1983) 148 Cal.App.3d 55, 61 [the minor’s increasingly serious delinquent behavior is a valid consideration for commitment to CYA].) He was placed on probation in 2000 when he was 11 years old and thereafter, the district attorney filed numerous ward petitions or notices of probation violations against him. Despite the fact he was given repeated opportunities by the court, he continued to engage in increasingly violent criminal behavior and committed new crimes as fast as the juvenile court could dispose of them. Initially, many of the crimes he committed were against his elderly father who had been physically abusive to him. However, his latest offense involved a brutal and violent gang rape of an 11-year-old child, in which he repeatedly raped her and forced her to orally copulate him and watched as two other males committed the same acts. This behavior demonstrates shocking callousness and cruelty, which requires appropriate treatment and guidance. (In re Michael D., supra, 188 Cal.App.3d at p. 1397.) Additionally, because Hosea was addicted to drugs and admitted using cocaine, the court could reasonably find he could benefit from the CYA’s substance abuse program.
The evidence also supports the juvenile court’s finding that less restrictive alternatives were not available or appropriate. As stated, Hosea was placed in increasingly restrictive alternatives over a period of six years, including probation with home supervision and then with electronic monitoring, group homes, and juvenile hall. The court specifically found Hosea had failed to succeed in all five group home placements and had more than twice as many write-ups in his juvenile detention file than the court had ever seen before. The court also found Hosea was not eligible for the camp or the KADAP programs recommended by the defense because of his age, lack of sufficient educational credits, and the sex offense conviction.
Thus, we conclude as did the court in In re Michael D, supra, 188 Cal.App.3d at page 1397, the evidence is sufficient to support the commitment based upon implied findings “(1) that the minor's best interests require an environment providing firm, strict discipline for his ‘out of control’ behavior, evidenced by his participation in a violent crime, (2) without such discipline and realignment of his social and moral structure he poses a demonstrated threat to public safety, and (3) that the minor requires intensive rehabilitative treatment for his substance abuse, and (4) the minor's parents were demonstrably incapable of caring for the minor consistent with the minor's best interests in treatment and guidance and the objective of the protection of the public.” We therefore conclude that because these findings satisfy the statutory purposes, Hosea has failed to establish the juvenile court abused its discretion in making its order of commitment.
Nevertheless, Hosea relies on the requirement of section 1730 together with a series of reports that suggest the CYA does not have adequate facilities and programs to provide care for him. Section 1730 bars commitment to the CYA until the Authority has certified in writing to the Governor that it has approved or established places and facilities and has sufficient personnel to carry out its duties. Section 1730 was added in 1941 and amended in 1944 (Stats. 1941, ch. 937, § 1; Stats. 1944, 3d Ex. Sess., ch. 2, § 3) and because Hosea has failed to present any evidence to the contrary, we must presume the statutory requirement has been met. (Evid. Code, § 664.)
Moreover, to the extent the conditions at the CYA may have changed, Hosea has forfeited this claim by failing to properly raise it in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 353-354.)
Hosea further asserts that his possible retardation and educational special needs were not properly addressed because the record lacks a current psychological assessment and an IEP plan. We disagree. With respect to the psychological assessment, Hosea does not claim the trial court was required by law to order a current evaluation or that it refused a timely request to make such an order. We therefore find no error.
With respect to his special educational needs, section 1742 requires that when the juvenile court commits a person to the Youth Authority who is identified as an individual with exceptional needs, it “shall not order the juvenile conveyed to the physical custody of the Youth Authority until the juvenile’s individualized education program previously developed . . . has been furnished to the Department of the Youth Authority.” (Italics added.) The court found the record was inconclusive as to whether Hosea required an IEP program but concluded that he did have exceptional needs, and ordered that an IEP evaluation be provided to the CYA at the time Hosea was conveyed to the physical custody of the CYA. That order satisfied section 1742.
For all of these reasons, we reject the minor’s claim of error.
II
Appointment of a Responsible Adult
Hosea contends the juvenile court failed to make a finding that limited his parents’ ability to make his educational decisions and asks this court to remand the matter to give the juvenile court the opportunity to appoint a responsible adult as his educational representative. Respondent contends the question should be rejected because the juvenile court no longer has authority to make such an appointment since Hosea has passed the statutory age of minority. We agree with respondent.
California Rules of Court, rule 5.790(f)(5) requires that when making wardship orders, the juvenile court “must consider whether it is necessary to limit the right of the parent or guardian to make educational decisions for the child. If the court limits this right, it must appoint a responsible adult as the educational representative. The court must follow the procedures stated in rule 5.650.”
Rule 5.650(b) specifies that the court must appoint a responsible adult as an educational representative to make educational decisions for the child “until . . . [t]he child reaches 18 years of age, unless the child then chooses not to make educational decisions or is deemed incompetent by the court . . . .”
Hosea turned 18 years of age on February 8, 2007, and he does not claim that he has chosen not to make his own educational decisions. Nor is there any finding or evidence to support a finding of incompetence. Thus, even if the juvenile court erred by failing to make the necessary appointment, it no longer has authority to do so. We therefore reject this claim.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, J., HULL, J.