Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SCSCJDSQ082102805
DUARTE, J.
Minor J.V., age 17, admitted an allegation that he violated his probation by consuming alcohol while on furlough from the Charlie Byrd Youth Corrections Center Commitment Program (Commitment Program). Following a contested disposition hearing, the minor was continued as a ward of the Siskiyou County Juvenile Court and committed to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ).
On appeal, the minor contends his DJJ commitment was an abuse of discretion because it does not serve the purposes of the juvenile court law, his criminal behavior was not escalating, alternatives less restrictive than DJJ were not realistically considered, and he was unlikely to benefit from the DJJ commitment. We disagree and shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2007, a juvenile wardship petition was filed alleging that the minor came within Welfare and Institutions Code section 602 in that he committed seven counts of felony vandalism, three counts of misdemeanor vandalism, two counts of using a destructive device, and one count of petty theft. In May 2007, he admitted one count of felony vandalism and the petty theft count. In June 2007, he was declared a ward of the court and granted probation.
Further undesignated statutory references are to the Welfare and Institutions Code.
In September 2007, he violated probation by using marijuana. He was continued as a ward and ordered to participate in Juvenile Drug and Alcohol Court.
In October 2007, the minor failed to appear at a drug court hearing. He was released to his parents with electronic monitoring.
Later that month, the minor skipped school and was located in a park while under the influence of marijuana. His wardship was continued under the previous terms and conditions.
In February 2008, the minor failed to appear at a drug court hearing. He was continued as a ward and committed to the Charlie Byrd Youth Corrections Center Lightning Program (Lightning Program) under supervision of the probation officer.
In March 2008, a subsequent juvenile wardship petition was filed. It alleged, as amended, that the minor had committed seven counts of misdemeanor vandalism and had brought contraband into juvenile hall. The minor admitted three vandalism counts. He was continued as a ward with various conditions under the care, control, and custody of the probation department.
In June 2008, the minor admitted that he violated probation by smoking marijuana and by remaining away from his residence. He was committed to the Lightning Program with credit for time served and was placed on electronic monitoring for 90 days.
In July 2008, a second subsequent juvenile wardship petition was filed alleging that the minor committed second degree robbery with the use of a deadly weapon. (Pen. Code, §§ 211, 212.5, subd. (c), 12022, subd. (b)(1).) The robbery also was alleged as a probation violation. The minor admitted the robbery allegation and the probation violation. He was continued as a ward of the court, placed in the custody of the probation department, and committed to the Bar-O Boys Ranch in Del Norte County.
In May 2009, the minor admitted that he violated probation by being terminated from the Bar-O Boys Ranch for refusing to follow camp rules and by engaging in three physical altercations since January 2009. In July 2009, the minor was placed in the custody of the probation department and committed to the Commitment Program.
In October 2009, the minor admitted that he violated probation by failing to return to the Commitment Program following a 24-hour furlough. In November 2009, he was recommitted to the Commitment Program without credit for time served.
In February 2010, the minor returned to the Commitment Program from a furlough. Staff noticed that he was slurring his speech and was staggering while walking. After being placed in a holding cell, he was observed leaning over a toilet as if he were vomiting. The minor was taken to a medical center where his blood-alcohol content measured 0.2 percent.
In March 2010, the minor admitted that he violated probation by consuming alcohol. An allegation that he violated probation by continuing to disobey the Commitment Program’s rules was dismissed.
In April 2010, following a contested disposition hearing, the minor was committed to DJJ.
DISCUSSION
Abuse of Discretion
The minor contends the juvenile court abused its discretion when it committed him to DJJ.
A. Juvenile Court Law
Minor first claims that the commitment does not serve any of the purposes of the juvenile court law.
“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 [DJJ]. [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. (§ 202, subds. (a), (b); In reMichael D., supra, 188 Cal.App.3dat p. 1396; In reAsean D., supra, 14 Cal.App.4th at p. 473.)
The record readily refutes the minor’s claim that the DJJ commitment “does not serve any of the purposes of the juvenile court law.” The protection and safety of the public is one of the well-settled purposes of juvenile law. (§ 202, subds. (a), (b); In reMichael D., supra, 188 Cal.App.3d at p. 1396; In reAsean D., supra, 14 Cal.App.4th at p. 473.)
Here, the evidence showed that the minor’s most recent probation violation (his tenth) consisted of being in public (i.e., outside the confines of the Commitment Program) with a blood-alcohol content of 0.2 percent, nearly three times the percentage required for adults to reach statutorily presumptive intoxication. (Veh. Code, § 23152, subd. (b); CALCRIM No. 2110.) The DJJ commitment protected the public by preventing the minor’s public intoxication, where his intoxicated state was clearly likely to diminish his already poor judgment and self-control and quite likely to cause him to display still more illegal behaviors. We thus reject the minor’s claim that his commitment serves no valid purpose.
B. Escalating Criminality
The minor next contends that there was no evidence of escalating criminality. We disagree. No evidence supports the minor’s claim that he “had not reoffended, ” and in fact had “remained crime-free[, ] since” the robbery. There was no evidence that the minor, who is not legally entitled to consume alcohol and was observed and tested to be staggeringly drunk, had become intoxicated by some lawful means. Merely because the probation department elected to treat the incident exclusively as a probation violation, and no new charges were filed, does not render the underlying conduct “crime-free.”
Contrary to the minor’s claim, the “evidence before the court” showed that his “criminal behavior was escalating” from vandalism and petty theft to second degree robbery. The fact that the minor’s probation violations following the robbery were less serious than the robbery itself does not signal that a DJJ commitment was unwarranted, let alone unreasonable. “The Legislature could not have intended that juvenile court judges be forced into a choice of either sending a DJJ-eligible ward to DJJ immediately or ordering probation and then forfeiting the threat of a DJJ commitment later if the ward violates probation.” (In re M.B. (2009) 174 Cal.App.4th 1472, 1477; see In re J.L. (2008) 168 Cal.App.4th 43, 56-60.)
C. Less Restrictive Alternatives
The minor claims the juvenile court erred when it failed to consider an alternate, less restrictive facility for commitment.
First, the record reflects that the juvenile court rejected defense counsel’s “suggestion that Fouts Springs Youth Facility might be an appropriate placement for [the minor.]” The court explained that it had “some familiarity with Fouts Springs. And in the past, this county did have a contract with Fouts Springs, but that has been several years ago at this point. And the court is simply not in a position to order a disposition that cannot be effectuated based on contractual and money matters and so forth. [¶] So, even though that might be something that the court could give some serious consideration were it available, it simply is not available. So, therefore, the court is not going to spend part of its analysis on whether or not Fouts Springs would be appropriate.”
The minor does not demonstrate that the juvenile court’s reasoning was incorrect. Instead, he simply notes that the lack of a current county contract with Fouts Springs did “not foreclose the court from considering and recommending it as an alternative placement to DJJ.” This is manifestly insufficient.
A minor does not show error on appeal simply by showing that the juvenile court could have made a different order. Rather, he must show that the order actually made was an abuse of discretion. (In re Michael D., supra, 188 Cal.App.3d at p. 1395.) This he has not done.
He also argues that there “was ample evidence of lesser [sic] restrictive alternatives available to him either in a group home placement, a camp program, or juvenile hall commitment which would offer him the appropriate treatment he needs and society deserves.” However, there was abundant evidence supporting the juvenile court’s determination that these less restrictive alternatives would be ineffective or inappropriate. (In re Teofilio A. (1989)210 Cal.App.3d 571, 576.) The minor had been terminated from a ranch program for refusal to follow rules and for engaging in physical altercations. The court could deduce that the minor would do no better in a group home or at a camp than he had done at the ranch. As for juvenile hall, the court expressly found that the minor had exhausted all of its resources and would gain little further rehabilitative benefit. There was no abuse of discretion.
D. Probable Benefit from DJJ
Lastly, the minor argues that he was unlikely to benefit from DJJ placement. Section 734 provides: “No ward of the juvenile court shall be committed to [DJJ] 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 [DJJ].”
Thus, “[t]o support a [DJJ] 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., supra, 210 Cal.App.3d at p. 576.) However, it is not necessary that less restrictive alternatives be attempted before a DJJ commitment is ordered. (In re James H. (1985) 165 Cal.App.3d 911, 922.)
At the juvenile court’s request, the probation officer explained that “the schools at [DJJ] are accredited through the Western Association of Schools and Colleges. At [DJJ], the minor will be able to earn either a high school diploma or a G.E.D. After obtaining that, he can also get a tech certificate in either computer programming, welding or auto body. [¶] They have counseling services available. There’s a six-month substance abuse program which the minor would definitely benefit from. They also have mental health programs which deal with mentally ill residents or very violent residents. [¶] Their core program, the minors do journaling. Again, there’s counseling services. There’s an incentive program through either work or education. There’s victim awareness counseling, gang intervention, anger control counseling, family dynamics counseling, job skills training, relationship skills, values counseling, life skills counseling, and they do a battery of tests upon intake to determine which facility and which programs would best serve each individual resident.”
The minor’s counsel asked the juvenile court to consider the probation officer’s statement to be “the opinion of the probation department at this time.” Counsel acknowledged that the court “should consider all relevant [evidence], even opinions, ” but added that he “would not consider this evidence for the hearing.” Counsel never obtained a ruling on his request to exclude the probation officer’s remarks.
The minor claims there was “no credible evidence presented” that he would “receive any benefit from a commitment” to DJJ. He dismisses the probation officer’s above-quoted remarks as a “wish list” and claims “evidence of the lack of services” was contained in defense exhibits, a “State Mandated Update on Safety and Welfare Remedial Plan Progress” and a “Thirteenth Report of Special Master, ” originally prepared for Alameda County litigation. (Farrell v. Cate, Alameda County Superior Court No. RGO3079344.) We are not convinced.
By its terms, section 734 turns upon “the mental and physical condition and qualifications of the ward.” (Italics added.) It does not turn, instead, upon the condition of DJJ and the qualifications of its staff, which appear to be the focus of the referenced Alameda County documents. (See, e.g., Solberg v. Superior Court (1977) 19 Cal.3d 182, 198.)
To prevail, the minor must show that the juvenile court abused its discretion when it deemed itself satisfied that his mental and physical condition and qualifications rendered it probable that he would benefit from the reformatory educational discipline or other treatment then being provided by DJJ. This the minor has not done.
The evidence showed that the minor was “at least of average intelligence and able to learn, ” and he stipulated that he had passed a high school exit examination. There was no evidence that he had any physical impairments. The minor’s nine probation violations allowed an inference that he would benefit from reformatory discipline that he theretofore had lacked. The minor’s arguments at the hearing that violent incidents still occur at DJJ, and that he may be too weak to resist pressure asserted by youthful gang members, did not address the analysis contemplated by section 734. The minor has not met his burden to show abuse of discretion.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P. J., BUTZ, J.