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In re James B.

Court of Appeal of California
Nov 30, 2006
No. F049905 (Cal. Ct. App. Nov. 30, 2006)

Opinion

F049905

11-30-2006

In re JAMES B., a Person Coming Under The Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JAMES B., Defendant and Appellant.

Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Stanley Cross, Acting Senior Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

THE COURT

Before Wiseman, Acting P.J., Levy, J., and Cornell, J.

Appellant James B., a minor, admitted allegations contained in two separate juvenile wardship petitions that he (1) committed a violation of Penal Code section 452, subdivision (d) (recklessly causing fire of property of another person), a misdemeanor, and (2) violated probation granted in a previous wardship proceeding. Following the subsequent disposition hearing, the court ordered appellant committed to the Department of Corrections and Rehabilitation, Juvenile Justice (DCRJJ), formerly known as the California Youth Authority (CYA), and declared appellants maximum period of physical confinement to be eight years two months.

On appeal, appellant contends the court abused its discretion in ordering appellant committed to the DCRJJ. We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On April 23, 2004, appellant admitted an allegation he committed a lewd or lascivious act against a child under the age of 14 (Pen. Code, § 288, subd. (a)). The report of the probation officer (RPO) prepared in connection with that proceeding indicates the following. Eleven-year-old M. N. told the father of her 10-year-old cousin B. N., that on a night that she (M. N.) stayed overnight at the home shared by her cousin and her family and appellant and his family, appellant, then age 15, dared M. N. and B. N. to touch his penis "and then he was rubbing their crotches."

Except as otherwise indicated, references to dates of events are to dates in 2004.

On June 4, the court adjudged appellant a ward of the court and placed him on probation. The court also placed appellant in the custody of the probation officer for placement in a group home. On June 23, appellant was placed at Trinity Group Home in Napa Valley, California.

An RPO filed December 20 states the following. On July 20, appellant was moved to Trinity Group Home in Whitewater, California. There, he "received forty disciplinary referrals for fighting, defiance, smoking cigarettes and marijuana, stealing from other minors, gang-related drawings, disrespecting staff, and failing to attend school," and on October 15 he was moved to Success in Recovery Group Home (SIR). Thereafter, at SIR, he refused to follow staff directions, do homework and participate in therapy. He also "continues to deny responsibility for his actions."

On November 15, a petition was filed alleging appellant violated his probation by "failing to obey the rules and regulations of the group home." On December 9, following a contested hearing, the court found the allegation true; on December 23, appellant was placed in the Shiloh Group Home (Shiloh); and on February 1, 2005, according to the RPO filed February 3, he was terminated from that placement "due to numerous behavioral problems." That RPO further states that "[a]ccording to the group home," appellant "continuously refuses staff directives"; "does not follow house rules"; "is not responding to redirection to reduce his delinquent behaviors"; "threatens and provokes other residents by calling them names"; "takes very little responsibility for his actions or behaviors" and "has very little to no remorse for his molesting behavior or empathy for his victims."

Except as otherwise indicated, all further references to dates of events are to dates in 2005.

On April 3, appellant admitted an allegation he violated his probation, based on his conduct at Shiloh, and on April 27, the court ordered him placed with the Sweeney Youth Homes (Sweeney) in Lompoc, California.

On October 30, according to an RPO filed November 29 (2005 RPO), appellant was terminated from his placement at Sweeney "because he set fire to a portion of the Los Padres National Forest as well as his continued violation of the Group Home rules, failure to attend school on time, everyday, [sic] and failing to refrain from the use of illegal substances." A "USDA Forest Service" incident report states that on October 30, while on a camping trip supervised by a group home manager, appellant, using an improvised " `flame thrower " made from a cigarette lighter and aerosol can, set a fire which burned approximately one-tenth of an acre in the Los Padres National Forest.

On November 1, the wardship petition alleging the instant offense was filed; on November 4, appellant admitted the allegation; on November 9, the petition alleging the instant probation violation was filed; and the following day, appellant admitted that allegation. On January 10, 2006, the court ordered appellant committed to the DCRJJ.

DISCUSSION

Appellant contends the court abused its discretion in ordering commitment to the DCRJJ. We disagree.

"To support a CYA 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; accord, In re Pedro M. (2000) 81 Cal.App.4th 550, 556.) An appellate court will not lightly substitute its judgment for that of the juvenile court but rather must indulge all reasonable inferences in favor of the decision and affirm the decision if it is supported by substantial evidence. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396; In re Asean D.(1993) 14 Cal.App.4th 467, 473.)

"`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. (§ 200 et seq. . . .) " (In re Lorenza M. (1989) 212 Cal.App.3d 49, 53.) "In 1984, the Legislature amended the statement of purpose found in section 202 of the Welfare and Institutions Code. It now recognizes punishment as a rehabilitative tool and emphasizes the protection and safety of the public. [Citation.] The significance of this change in emphasis is that when we assess the record in light of the purposes of the Juvenile Court Law [citation], we evaluate the exercise of discretion with punishment and public safety and protection in mind." (Id. at pp. 57-58; accord, In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684 ["[a] fundamental premise of delinquency adjudication is that the court must focus on the dual concerns of the best interests of the minor and public protection"]; In re Asean D., supra, 14 Cal.App.4th at p. 473 ["the 1984 amendments to the juvenile court law reflected an increased emphasis on punishment as a tool of rehabilitation, and a concern for the safety of the public"].) And while the juvenile court law contemplates a progressively restrictive and punitive series of dispositions, there is no absolute rule that the court may not impose a particular commitment until less restrictive placements have actually been attempted. (In re Teofilio A., supra, 210 Cal.App.3d at p. 577.)

Welfare and Institutions Code section 202 provides, in relevant part: " `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. " (Welf. & Inst. Code, § 202, subd. (b).)

Several factors support the conclusion that a disposition less restrictive than DCRJJ commitment would be ineffective or inappropriate because a placement less secure than the DCRJJ would not be adequate to hold appellant accountable for his actions and/or provide for the safety and protection of the public.

First, appellant has failed to reform despite multiple grants of probation and group home commitments. Second, the court based its DCRJJ commitment order, in part, on appellants 2004 adjudication of committing a lewd or lascivious act against a child under the age of 14, an offense statutorily designated a " `serious felony " (§ 1192.7, subd. (c)(6)). (In re Samuel B. (1986) 184 Cal.App.3d 1100, 1104, overruled on other grounds in People v. Hernandez (1988) 46 Cal.3d 194, 206, footnote 14 [in determining disposition of juvenile offender, "gravity of the offense is always a consideration with other factors"]. Third, the record contains multiple indications, which the court reasonably could credit, that appellant has failed to take responsibility for his actions and has exhibited little or no remorse for his 2004 offense or empathy for the victims of that offense. (Cf. In re Asean D, supra, 14 Cal.App.4th at p. 473 [minors commitment to CYA upheld where his "continuing refusal . . . to take responsibility for his crimes[] clearly signaled that he constituted a serious danger to the public unless securely confined"]; In re Michael D. (1987) 188 Cal.App.3d 1392, 1397 [minors "unrepentant and cavalier attitude" regarding his offense supported CYA commitment].)

Substantial evidence also supports the conclusion that commitment to the DCRJJ would be of probable benefit to appellant. Specifically, the 2005 RPO states that in the DCRJJ, appellant could receive educational services and individual and group counseling, and at the disposition hearing, the probation officer informed the court that "there is a sex offender program [at the DCRJJ] where [appellant] will receive counseling." And we reiterate that the juvenile court law specifically acknowledges that punishment can aid in a minors rehabilitation by holding him accountable. Thus, the court reasonably could conclude that DCRJJ commitment would benefit appellant.

Appellant contends the People have not established the "facilities" at the DCRJJ are "adequate" to provide the "level of care" appellant requires, and therefore there is insufficient support for the conclusion that DCRJJ commitment would be of probable benefit to appellant. However, appellant bases this contention on certain reports and other documents critical of the DCRJJ which were not before the juvenile court. These documents are not part of the appellate record. Therefore, we cannot consider them. (Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632 ["As a general rule, documents not before the trial court cannot be included as part of the record on appeal and thus must be disregarded as beyond the scope of appellate review"].)

Appellant also argues, as best we can determine, that the court did not give adequate consideration to dispositions less restrictive than DCRJJ commitment. In this connection, apparently, appellant notes the following. At the disposition hearing, appellants counsel argued appellant should be placed in a "local . . . long-term program"; "after his release" appellant should be placed in the Porterville Youth Services, which counsel described as a "local sex offender program"; and appellant should be ordered to "do [a] substantial amount of volunteer work." The court did not specifically address this argument, nor did the court discuss on the record other less restrictive possible dispositions, other than to note appellants group home failures.

Appellants contention is without merit. In In re Ricky H. (1981) 30 Cal.3d 176, the minor, challenging his commitment to the CYA, argued "that the superior court did not give adequate consideration to less restrictive placement alternatives. Specifically, the social study lacked data regarding specific alternative placements. The court failed to respond to counsels argument that the local youth center would be a more appropriate placement. [The minor] assert[ed] that the court had a duty to actively inquire as to the suitability of less restrictive placements . . . ." (Id. at p. 182.) Our Supreme Court rejected this argument; the court stated, "It is true that the lack of such a statement [of reasons for CYA commitment] makes appellate review of the superior courts exercise of discretion more difficult and uncertain [citation], but the absence of inquiry does not establish that the superior court failed to consider other placements." (Id. at p. 184, emphasis added.) Thus, as this court stated in In re Teofilio A., supra, 210 Cal.App.3d at p. 577, the court in Ricky H. "noted[] [that] if there is evidence in the record to show a consideration of less restrictive placements was before the court, the fact the judge does not state on the record his consideration of those alternatives and reasons for rejecting them will not result in reversal." (Emphasis added.)

Here, counsels argument at the disposition hearing put before the court the possibility that appellant could be placed in a long-term local program. Moreover, the probation officer, in the 2005 RPO, discusses several alternatives to DCRJJ commitment. Specifically, he states appellant "has been in five group home placements, and is making little to no progress. . . . It appears the minor needs a higher level of security and treatment than is available at the local level." The probation officer states further that he considered "commitment to the YCCU Program, the Youth Facility Program and the YTCU Program" but "deemed [these alternatives] inappropriate because the minor needs a higher level of security and he is unwilling to abide by his terms and conditions of Probation." The officer also concluded that "[p]lacing the minor in a group home, foster home, or the home of a suitable relative was . . . deemed inappropriate because the minor committed arson at the last group home, and has previously failed all of the group home placements."

Thus, the record shows that numerous less restrictive dispositions were before the court. No more is required to establish the court considered such dispositions. (In re Ricky H., supra, 30 Cal.3d at p. 184.)

Finally, appellant argues the evidence was insufficient to support the conclusion that less restrictive alternatives would be rehabilitatively ineffective. As best we can determine, the major premise of this contention is the claim that appellant could benefit from long-term local programs and unnamed placements "outside the county . . . ."

But regardless of whether appellant could derive some benefit from such programs, the question before us is whether a DCRJJ commitment would be of probable benefit to appellant. And, as demonstrated above, under the juvenile court law, his interests include being held accountable for his actions. Moreover, appellants argument give too little weight to the principle that the juvenile court was bound to consider not only appellants interests but the interests of society. In In re Reynaldo R. (1978) 86 Cal.App.3d 250, this court held that the juvenile court did not abuse its discretion in committing the minor to the CYA, stating, "The minors record, although justifying a less restrictive disposition, was sufficient for a finding of probable benefit to the minor by a Youth Authority commitment." (Id. at p. 256.) In the instant case, even if appellant could benefit from some less restrictive disposition, there was, as demonstrated above, substantial evidence supporting the disposition. Therefore, the court did not abuse its discretion in ordering appellant committed to the DCRJJ.

DISPOSITION

The judgment is affirmed.


Summaries of

In re James B.

Court of Appeal of California
Nov 30, 2006
No. F049905 (Cal. Ct. App. Nov. 30, 2006)
Case details for

In re James B.

Case Details

Full title:In re JAMES B., a Person Coming Under The Juvenile Court Law. THE PEOPLE…

Court:Court of Appeal of California

Date published: Nov 30, 2006

Citations

No. F049905 (Cal. Ct. App. Nov. 30, 2006)