Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JV118614
NICHOLSON, Acting P.J.
Minor Jordan A. admitted that he was within the provisions of Welfare and Institutions Code section 602 in that he committed battery with serious bodily injury. (Pen. Code, § 243, subd. (d).) He was committed to the Department of Corrections and Rehabilitation (CDCR), Division of Juvenile Facilities (DJF), for a maximum term of seven years two months, not to exceed age 25.
Further statutory references are to the Penal Code unless otherwise indicated. Further references to section 602 are to the Welfare and Institutions Code.
On appeal, the minor contends (1) the juvenile court abused its discretion when it quashed his subpoena for the testimony of the preparer of the probation report that recommended a DJF commitment, (2) there was insufficient evidence that he would benefit from a DJF commitment, and (3) the matter must be remanded to allow the juvenile court to set a maximum term of physical confinement based upon his individual facts and circumstances. Only the last contention has merit.
FACTUAL AND PROCEDURAL BACKGROUND
The minor previously had been found to be within the jurisdiction of the Los Angeles County Juvenile Court by virtue of his having committed second degree burglary in 2003. (§§ 459, 460, subd. (b).)
In January 2005, a new section 602 petition was filed in Sacramento County Juvenile Court alleging the minor committed robbery (§ 211) and two counts of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). The petition was later amended to add a count of attempted robbery. (§§ 211, 664.)
In February 2005, pursuant to a negotiated disposition, the minor admitted the truth of the robbery allegation and the remaining charges were dismissed with a Harvey waiver. That same day, the minor was placed on probation and committed to the Sacramento County Boys Ranch.
People v. Harvey (1979) 25 Cal.3d 754.
In June 2005, the probation officer filed an allegation that the minor violated probation by failing to return to the Boys Ranch after receiving a home pass.
In August 2005, a new section 602 petition was filed in Los Angeles County Juvenile Court alleging the minor possessed a firearm (§ 12101, subd. (a)(1)) and ammunition (§ 12101, subd. (b)(1)). The minor admitted the firearm allegation. The case was transferred to Sacramento County for disposition.
At a disposition hearing in Sacramento County in August 2005, the minor was reinstated to probation and again committed to the Sacramento County Boys Ranch.
A subsequent wardship petition was filed in September 2005, alleging two counts of misdemeanor battery. (§ 242.) In a negotiated disposition in December 2005, the minor admitted one count of battery and the other was dismissed in the interest of justice. That same day, the juvenile court ordered the minor placed in a “Level ‘B’” placement.
A supplemental petition was filed in late December 2005, after it was discovered the minor attempted suicide in November. The Juvenile Court ordered the minor to submit to a psychological evaluation.
In February 2006, the juvenile court granted the modification petition and released the minor to his mother under supervision of the probation department.
In May 2006, a subsequent wardship petition was filed alleging the minor had committed burglary (§ 459) and robbery (§ 211). Thereafter in July 2006, another petition was filed alleging felony battery with resulting serious bodily injury. (§ 243, subd. (d).) The facts underlying the battery allegation are not at issue and need not be recounted.
In July 2006, pursuant to another negotiated disposition, the minor admitted the truth of the battery with severe bodily injury allegation, and the burglary and robbery allegations were dismissed with a Harvey waiver. The court found the offense to be a felony and fixed the minor’s maximum term of confinement at seven years two months.
In August 2006, the minor subpoenaed the probation officer who had prepared the probation report to testify at the upcoming disposition hearing. In September 2006, the juvenile court granted the county counsel’s motion to quash the subpoena. At a contested disposition hearing one week later, the court committed the minor to DJF.
DISCUSSION
I
The minor contends the juvenile court abused its discretion when it quashed his subpoena for the testimony of the preparer of the probation report that recommended he be committed to DJF.
Background
In June 2006, before the most recent wardship petition was filed, a deputy probation officer prepared and filed a social study report for the upcoming disposition hearing. The officer recommended that the minor be removed from his mother’s custody and that he be committed to DJF. Then, after the most recent petition was filed, the officer filed a memorandum concerning the battery with severe bodily injury adjudication, again recommending that the minor be placed at DJF.
In August 2006, the minor served a subpoena upon the probation officer to have him testify at the upcoming disposition hearing. In September 2006, the Sacramento County Counsel filed a motion to quash the subpoena.
At the hearing on the motion to quash, the minor’s counsel explained the nature of the desired evidence as follows: “[T]hey categorized [the minor] as a category three. The recommendation is juvenile facility -- state juvenile facilities, and I wanted to question him about the evaluative process of how they reach that. I believe they are wrong in saying he’s a category three. I think he’s probably category five or six, and I felt that was very important to get into that because it could mean that he wouldn’t be sent to the state facility. There would be some other alternative. So I feel it’s probative -- there’s a probative value to that.” On the issue whether the evidence was more probative than prejudicial, counsel argued: “I think it’s really important because I think they made a mistake making [the minor] category three. The only way I would be able to get to the bottom of that is either [the probation officer] writes an amendment to my -- to this report, which he’s not willing to do at this point. So I would have to question him on the witness stand and get to the basis of this category and it would be helpful to my client.”
Offense categories are defined in California Code of Regulations, title 15, section 4950 et seq. Thus, category 1 offenses are defined in section 4951; category 2 offenses in section 4952; category 3 offenses in section 4953, etcetera.
The juvenile court (Judge Peterson) explained that the probation officer “gather[s] facts, analyz[es] those facts, and mak[es] a recommendation to the Court as to what the Court should do. [¶] The report may be accurate. It may be inaccurate. The [report] may have logical conclusions. It may have illogical conclusions. But the important part about a dispositional report is it speaks for itself. It lays it all out as to what the officer is relying upon and why the officer reaches the conclusion that the officer reaches. That conclusion is in no way, of course, binding on the Court. It’s a mere form of advocacy. It explains to the Court what it was that was considered and points out why that might lead to a certain result. [¶] There is no more need to cross-examine the writer of that kind of document than there is to cross-examine counsel who give me an argument later in this case what my ruling ought to be. We don’t put counsel up on the stand and ask, well, wait a minute, what investigation did you do? What did you find out about this? How did you come to this particular reasoning? Why did you reject that other conclusion? The closing argument of counsel stands for itself. We can analyze, we can critique it, we can agree with it or disagree with it. The same thing is true about the probation report.”
Regarding categories of offenses, the juvenile court explained that the probation officer’s testimony was not necessary because the categories are defined by regulation and any error could be determined by comparing the facts of the minor’s offense to the regulations’ criteria for each category.
The juvenile court ruled “it would be an imposition on public officials’ time, to the detriment of other individual minors, as well as the public if the probation officers are called in to court to testify why they came to the conclusions they came to, and testify how they did that, and what they did in their day, and who they telephoned, who they didn’t telephone, and what facts they gathered and what facts they didn’t gather. Taking them away from their normal duties to do that when all that really matters is the bottom line of what are the facts and what are the arguments in favor or against a particular disposition, it serves very little purpose to have a probation officer come in. It does great harm to the efficiency of the agency if they are called to testify on matters that otherwise totally speak for themselves and for which the parties are on notice, or claims such that if a party has rebuttal information they can be free to do so in presenting it.”
Analysis
The minor first claims the juvenile court erred when it found that the probation officer’s testimony was not relevant evidence. On this record, any error was not prejudicial.
The juvenile court explained that a probation report reflects the opinion of the probation department, personified by its chief probation officer, and not necessarily the opinion of the particular deputy who prepared the report. The disputed report had been reviewed and approved by a supervising probation officer; thus, the report’s conclusions are not necessarily those of the deputy whose testimony was sought. The court opined that, to put the deputy on the stand and ask them personally “how they evaluated this is pretty much irrelevant because whether they personally evaluated it in some way or not, the Probation Department as an agency has decided that their recommendation and their conclusion will be a particular conclusion.” (Italics added.)
However, the minor’s counsel made plain that he was challenging the probation department’s ultimate recommendation, not the thought processes of any individual who participated in its formulation. Thus, counsel argued that “they categorized [the minor] as a category three,” and “I believe they are wrong in saying he’s a category three.” (Italics added.) The Attorney General does not contend that evidence of how the probation department as an entity formulated its recommendation would be irrelevant, or that evidentiary rules would necessarily have precluded the subpoenaed officer from addressing that issue. We, thus, assume without deciding that the probation officer’s testimony would have had some tendency in reason to prove or disprove a disputed fact of consequence in this proceeding. (Evid. Code, § 210.) Any error is nonprejudicial because, as we next explain, the evidence was properly excluded under Evidence Code section 352.
The minor contends the juvenile court abused its discretion when it concluded that the evidence’s probative value was outweighed by undue consumption of time. We disagree.
Welfare and Institutions Code section 706 provides that at the disposition hearing, the juvenile “court shall receive in evidence the social study of the minor made by the probation officer and any other relevant and material evidence that may be offered . . . .” (Italics added.) This court has explained that if the italicized words “were construed literally to mandate the admission of all relevant evidence, the result would be to sanction an enormous waste of time in dispositional hearings, where juvenile court judges would be powerless to exclude cumulative evidence or time-consuming evidence of marginal probative value.” (In re Romeo C. (1995) 33 Cal.App.4th 1838, 1844.) We thus concluded that “Welfare and Institutions Code section 706 impliedly incorporates Evidence Code section 352.” (Ibid.)
Evidence Code section 352 gives the juvenile court “‘discretion to exclude evidence “ . . . if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of . . . confusing the issues . . . .” [Citation.]’ [Citation.]” (In re Romeo C., supra, 33 Cal.App.4th at p. 1844.) “The trial judge need not expressly weigh prejudice against probative value or even expressly state that he or she has done so. [Citation.] No ‘magic words’ are necessary to show an appropriate exercise of discretion under Evidence Code section 352. [Citation.] What is important is that the record manifest the trial court’s exercise of discretion available under Evidence Code section 352. [Citations.]” (In re Romeo C., supra, at p. 1845.)
As noted, we assume that evidence of how the probation department determined that the minor was a Category 3 offender would have some relevance at the disposition hearing. The juvenile court properly concluded that consumption of the time necessary to question the subpoenaed officer on that issue would be undue, because, with the facts of the minor’s offense properly set forth in the social study and the categories of offenders defined by regulation, the defense could easily prove an erroneous categorization without resort to the officer’s testimony. This determination was not arbitrary, capricious, or patently absurd. (E.g., People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) No abuse of discretion appears.
Even if, as the minor suggests, the words “undue consumption of time” in Evidence Code section 352 are limited to judicial time, and do not extend to probation officer time, the time required for the court to receive and consider the evidence was an appropriate consideration.
The minor claims our decision in In re Romeo C., supra, 33 Cal.App.4th 1838 is not controlling because it “stood on that [probation] report being ‘inherently reliable,’” whereas in this case the juvenile court “questioned the reliability” of the report and was “unable to find the probation report before it to be accurate, [i.e.,] inherently reliable.” (See id. at p. 1847.) We disagree.
When it noted that the report “may be accurate,” “may be inaccurate,” “may have logical conclusions,” and “may have illogical conclusions,” the juvenile court appears to have been speaking hypothetically, taking note of the various diametrically opposing possibilities, rather than purporting to choose between them. The court did not purport to find that the report was inaccurate or unreliable. There was no error.
II
The minor contends his DJF commitment must be reversed because there was insufficient evidence that he would benefit from the commitment. We disagree.
“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., § 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 . . . .” (In re Teofilio A. (1989) 210 Cal.App.3d 571, 576.) However, it is not necessary that less restrictive alternatives be attempted before a DJF commitment is ordered. (In re James H. (1985) 165 Cal.App.3d 911, 922.)
The probation report recited the probation officer’s discussion with a CDCR intake officer consultant. CDCR indicated that, “[w]hile incarcerated [at DJF], the minor would be given the opportunity to obtain his high school diploma and receive victim awareness counseling, drug counseling and weekly individual counseling.” A psychological evaluation completed four months previously had recommended that the minor receive individualized counseling. This evidence supports a finding that the minor’s mental condition was such that it was probable he would benefit from individual counseling at DJF. (In re Teofilio A., supra, 210 Cal.App.3d at p. 576.)
The psychological evaluation recommended that the individual psychological counseling be integrated with psychiatric counseling so that the minor “can address his many treatment issues.” The record does not disclose whether psychiatric counseling would be available to the minor at DJF. However, that omission does not compel a finding that individual counseling at DJF probably would have no benefit.
The minor claims the juvenile court “neither read nor considered” the psychological evaluation. However, his only citations to the record are to the order directing preparation of the evaluation and the evaluation itself. Neither citation supports his argument.
“A fundamental principle of appellate practice is that an appellant ‘“must affirmatively show error by an adequate record. . . . Error is never presumed. . . . ‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent . . . .’ (Orig. italics.)” [Citation.]’ [Citations.]” (Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532-1533.) We thus do not infer from the juvenile court’s failure to refer expressly to the psychological evaluation that the court did not consider it.
The psychological evaluation emphasized the minor’s “limited intellectual capacity, impulsivity and emotional passivity,” which made him “likely to be easily influenced by peers.” In the minor’s view, this constituted a specific warning “against placing [him] and his limited intellectual abilities with gang members who would easily influence him.” However, the report also suggested that the minor was amenable to “treatment and counseling to help him dissociate from the gangs.” The minor does not contend, and the record does not show, that DJF is bereft of treatment and counseling to help youths disassociate from criminal street gangs. No error is shown.
III
The minor contends the disposition order must be reversed and the matter remanded for the juvenile court to set a maximum term of physical confinement based upon his individual facts and circumstances. He argues the court set only the statutory maximum and did not set his individualized maximum, which may be a lesser period. This point has merit.
As amended in 2003, Welfare and Institutions Code section 731 provided in relevant part: “(b) A minor committed to the [DJF] may not be held in physical confinement for a period of time in excess of the maximum period of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court. A minor committed to the [DJF] also may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court, which may not exceed the maximum period of adult confinement as determined pursuant to this section.” (Stats. 2003, ch. 4, § 1, italics added; see subd. (c) of current Welf. & Inst. Code, § 731.)
In In re Jacob J. (2005) 130 Cal.App.4th 429, this court held that the 2003 amendment to Welfare and Institutions Code section 731 was “intended to give the juvenile court discretion to impose less than the adult maximum term of imprisonment when committing a minor to [DJF] and to require the court to set that term of confinement based on the facts and circumstances of each case. [Citation.]” (In re Jacob J., supra, at p. 437.)
The minor in In re Jacob J. contended the juvenile court failed to exercise the discretion granted by the then-new statute. (In re Jacob J., supra, 130 Cal.App.4th at p. 437.) We agreed, explaining: “On a silent record, the ‘trial court is presumed to have been aware of and followed the applicable law’ when exercising its discretion. [Citations.] The appellate court cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of its discretion. [Citations.] [¶] But we think the matter goes somewhat beyond the question of whether the juvenile court was aware of and exercised the discretion granted by the statute. Given the wording of the statute and its legislative history, where, as here, the juvenile court sets the maximum term of physical confinement at [DJF] at the maximum term of an adult confinement, the record must show the court did so after considering the particular facts and circumstances of the matter before it. We reach this conclusion considering not only the wording of the amendment to the statute, which we have discussed, but also the structure of the statute after its amendment. Before the statute was amended, it said the maximum term of physical confinement at [DJF] could not exceed the maximum period of imprisonment that could be imposed on an adult convicted of the same offenses. After its amendment, the statute spoke of a second and separate, although perhaps not different, period of physical confinement, that is, confinement set by the court given the particular facts and circumstances of the case under consideration. When the court has stated only the maximum term of confinement that could have been imposed on an adult and is silent as to a maximum term based on the facts of the case, it has not spoken to the second, separate maximum called for by the amended statute. [¶] Thus, while the statute does not require a recitation of the facts and circumstances upon which the trial court depends, or a discussion of their relative weight, the record must reflect the court has considered those facts and circumstances in setting its maximum term of physical confinement even though that term may turn out to be the same as would have been imposed on an adult for the same offenses. The juvenile court having failed to set that term, the matter must be remanded to the court for that determination.” (Id. at pp. 437-438, italics added and omitted.)
Contrary to the Attorney General’s argument, the need for the record to reflect a ruling on the new issue exists whenever that issue must be decided. The need does not arise merely from the “unique posture” of In re Jacob J., in which the disposition hearing was held about a month after the 2003 amendment was operative.
In this case, the probation report calculated its recommended maximum “confinement term” solely with respect to the corresponding adult maximum terms of imprisonment. The report did not consider the facts and circumstances of the minor’s sustained allegations.
In announcing its disposition, the juvenile court stated only that “the minor is to be committed to the California Department of Corrections and Rehabilitation[,] Division of Juvenile Facilities. The commitment is for the maximum term of seven years and two months.”
The discussion preceding the court’s announcement made reference to the term calculated by the probation officer (based on the adult maximum), but it did not make reference to the maximum confinement period warranted by the facts and circumstances of the various sustained petitions. Thus, the record does not reflect that the court considered those facts and circumstances in the course of setting its maximum term of physical confinement. (In re Jacob J., supra, 130 Cal.App.4th at p. 438.)
DISPOSITION
The judgment (order committing the minor to DJF) is reversed. The matter is remanded to the juvenile court with directions to set a maximum term of physical confinement based upon the facts and circumstances of this case. (In re Jacob J. (2005) 130 Cal.App.4th 429.)
We concur: HULL, J., CANTIL-SAKAUYE, J.