Opinion
F042448.
11-20-2003
In re MICHAEL L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. MICHAEL L., Defendant and Appellant.
J. Peter Axelrod, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, and Matthew L. Cate, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
PROCEDURAL HISTORY
On January 9, 2003, the Madera County District Attorney filed a petition in juvenile court (Welf. & Inst. Code, § 777, subd. (a)) alleging that minor violated a previous wardship order by failing to comply with the written instructions of the probation officer and to obey the staff of a group home (the petition). The next day, minor admitted the truth of the petition and was ordered detained in juvenile hall.
On January 24, 2003, the probation officer filed a supplemental report and recommendation with the juvenile court. Following a contested disposition hearing, the court reaffirmed felony and misdemeanor jurisdiction over the minor. He was committed to the California Youth Authority (CYA) for an aggregate period of nine years four months. The court imposed the principle term of eight years on a 2000 Tulare County wardship petition for committing lewd acts on a child under age 14 (Pen. Code, § 288, subd. (a)); a consecutive subordinate term of one year on a 1997 Fresno County wardship petition for sexual battery (Pen. Code, § 243.4, subd. (a)); a consecutive subordinate term of two months on a 1998 Tulare County wardship petition for vandalism (Pen. Code, § 594, subd. (a)); and a consecutive subordinate term of two months on a 2001 Madera County wardship petition for battery (Pen. Code, § 242).
FACTUAL HISTORY
Minors juvenile history is serious and lengthy. We summarize his cases here:
1. Fresno County case No. 89345-3 (filed June 5, 1997)—Minor was alleged to have forced his sister to have sexual intercourse with him. He placed several foreign objects into her vagina, including a bicycle pump hose, a carrot, an ink pen, and his finger. Two younger siblings witnessed these events.
2. Tulare County case No. 98-49256 (filed March 19, 1998)—Minor and other boys entered a residence without the owners permission. They punched several holes in the wall and ceiling, broke an interior window, damaged the roof of a carport, and damaged an outside vent. Damage to the residence was approximately $ 2,000.
3. Tulare County case No. 98-49256 (filed May 16, 2000)—Minor touched
his four-year-old cousins vagina while playing with her and others in a motor home. He explained to a deputy sheriff that he molested her.
4. Santa Barbara County case No. J-1053152 (filed September 25, 2001)—Minor got into a fight with the juvenile victim at a youth home. The victim had been teasing the minor about the minors mother while simultaneously kicking the minor on the foot. The minor kicked the victim in the shin and grabbed him by the throat while pushing him against a wall. After fifteen seconds, the minor released his grip. The minor admitted a violation of Penal Code section 242.
5. Madera County case No. 12956-B (January 9, 2003)—Minor was placed
with the Fresno Unity Group Home Inc., January 21, 2002. He had trouble adjusting to the group home setting even though he had extensive experience in similar settings. Most reports were for showing disrespect to staff or clients, inappropriate aggression, refusing to do assigned work, and being unwilling to take his psychotropic medication. In addition, minor made it clear that there was nothing new he could learn about his sexual behavior and that he would soon be an adult and not have to comply with the program. Otherwise, the minors behavior improved to a certain extent.
DISCUSSION
I. Failure to determine whether minors counsel consented to his admission
Minor contends the juvenile court committed reversible error by failing to determine whether his counsel consented to minors admission of the truth of the allegation of the section 777 petition. He alleges the failure to do so violates section 657 and California Rules of Court, rule 1487(d) (rule 1487(d)). Further, minor argues that since section 657 bears on his right to counsel, his federal constitutional rights are implicated and the error requires reversal unless the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) Alternatively, minor takes the position that even if the harmless error standard under People v. Watson (1956) 46 Cal.2d 818, 837 applies, reversal is still required.
Applicable law
We begin with section 657, subdivision (b), and rule 1487(d). Section 657, subdivision (b) states:
"At the detention hearing, or any time thereafter, a minor who is alleged to come within the provisions of Section 601 or 602, may, with the consent of counsel, admit in court the allegations of the petition and waive the jurisdictional hearing."
Rule 1487(d), also requires that counsel for a minor must consent to the minors
admission of an allegation in a section 602 petition.
As previously noted, the Madera County District Attorney filed the petition under the authority of section 777, subdivision (a). A minor subject to a section 777 petition is accorded the same constitutional rights that he or she has during the adjudication of the original petition. The safeguards accompanying a section 777 hearing are the filing of a supplemental petition, a noticed hearing at which the minor has the rights to counsel, confrontation, to cross-examine witness, and against self-incrimination. In addition, the charged misconduct must be proven by a preponderance of the evidence. An admission to the allegations of a section 777 petition is subject to the requirements of Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122.
A supplemental petition is designed for situations where it is necessary to substitute a more restrictive placement because the original disposition by the juvenile court has not been effective in the rehabilitation or protection of the minor. Typically, a section 777 supplemental petition will be required to move a minor from a foster home or juvenile hall to the custody of the CYA. Since this results in a greater intrusion on the minors liberty, a section 777 petition must contain a statement of facts demonstrating a need for a more restrictive placement and can only be sustained after notice and hearing. (§ 777; In re Jorge Q. (1997) 54 Cal.App.4th 223, 229-231.)
Respondent acknowledges that section 657 and rule 1487(d) require the consent of counsel when a minor admits an allegation in a section 602 petition. However, respondent maintains neither applies to a petition filed under section 777. Our primary task in construing a statute is to determine the intent of the Legislature. (People v. Statum (2002) 28 Cal.4th 682, 689.) We have no power to rewrite the statute to make it conform to a presumed intention that is not expressed. (People v. Hill (1995) 37 Cal.App.4th 220, 225.)
Section 657 is part of division 2, part 1, chapter 2, article 16 of the Welfare Institutions Code, governing commencement of proceedings relating to wards. Section 777 is part of the same division and chapter but is within article 20, governing modification of juvenile court judgments and orders relating to wards. Section 657 expressly requires the consent of counsel when a minor admits an allegation in a section 602 petition. Section 777 contains no such requirement. Minor has not cited and we have been unable to find any case, statute, or rule extending the requirement of counsels consent to a petition under section 777. Ordinarily, the words of the statute provide the most reliable indication of legislative intent. If a statute omits a provision, inclusion of that provision in another related statute indicates that it is not applicable to the statute from which it was omitted. (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1827.)
Absent express authority, the juvenile court did not commit prejudicial error by failing to require minors counsel to consent to his clients admission of the truth of the section 777 petition.
II. The CYA commitment
Minor contends the juvenile court abused its discretion in committing him to the CYA absent a showing of probable benefit or evidence that less restrictive alternatives would be ineffective or inappropriate.
Minors under the jurisdiction of the juvenile court shall 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 consistent with the rehabilitative objectives of the Welfare and Institutions Code. (§ 202, subd. (b).) Punishment includes the imposition of sanctions, including commitment of the minor to the CYA. (§ 202, subd. (e)(5).)
When a minor is adjudged a ward of the court on the ground he or she is a person described by section 602, the court may order any of the numerous types of treatment referred to in sections 727, 730, and 731. Alternatively, the court may commit the minor to the CYA. (§ 731.) No ward shall be committed to the CYA unless the court is satisfied that the mental and physical condition of the ward make it probable that he or she will benefit from the reformatory educational discipline or other treatment provided. (§ 734.)
To support a CYA commitment, the evidence must demonstrate probable benefit to the minor and support a determination that less restrictive alternatives are inappropriate. In fact, less restrictive placements do not actually have to have been tried. (In re Teofilio A. (1989) 210 Cal.App.3d 571, 576-577.) Further, the juvenile courts decision to commit a minor to CYA will be reversed only when an abuse of discretion has been shown. (In re George M. (1993) 14 Cal.App.4th 376, 379.) And, an abuse of discretion occurs only if the court exercises its discretion in an arbitrary, capricious, or patently absurd manner resulting in a miscarriage of justice. (People v. Shaw (1998) 64 Cal.App.4th 492, 496.) We indulge in all reasonable inferences to support the decision of the juvenile court. (In re Asean D. (1993) 14 Cal.App.4th 467, 473.)
A review of minors placements is helpful here. On August 8, 1997, the Fresno County Juvenile Court adjudged minor a ward of the court for felony sexual battery (Pen. Code, § 243.4, subd. (a)). His case was then transferred to Tulare County. On June 19, 1998, the Madera County Juvenile Court accepted a transfer-in of minors case from the Tulare County Probation Department. The case, No. 12956, involved a misdemeanor vandalism (Pen. Code, § 594, subd. (a)) and was ready for disposition. On September 2, 1999, minors case was transferred back to the Tulare County Probation Department. On May 16, 2000, the Tulare County Juvenile Court continued minor as a ward of the court for felony lewd and lascivious acts with a child (Pen. Code, § 288, subd. (a)). The court ordered certain terms and conditions of probation including minors completion of a placement in a group home for sex offenders. On August 1, 2000, the Tulare County Probation Department placed minor with Sweeney Group Homes in Santa Barbara. On September 22, 2001, minors placement was terminated because he committed a misdemeanor battery (Pen. Code, § 242). On October 24, 2001, the Madera County Juvenile Court accepted a transfer-in of case No. 12956-A from Tulare County for disposition. On December 5, 2001, the Madera County Juvenile Court conducted the disposition hearing and ordered minor to successfully complete a placement in a group home for sex offenders. On January 8, 2003, the Fresno Unity Group Home (Unity) terminated minor for failure to comply with the program. The following day, the Madera County District Attorney filed a "B" petition (case No. 12956-B) alleging minors violation of the written instructions of the probation office. It also indicated their intention to seek a maximum term of confinement by aggregating the terms of all previously sustained petitions.
At the January 10, 2003, arraignment hearing on the "B" petition, minor admitted he was terminated from Unity. The prosecutor explained the reason for minors termination was because he had been to three different group homes and had not been making any progress in Unity. The court then asked defense counsel to comment on the factual basis for the admission. Minor interjected that he had only engaged in one incident and to say he "was not making any progress would also be a false statement." He explained that after a November 7 review, "... I behaved fairly well until the incident two or three weeks ago [at Unity] I think where I had anger outburst. It was, I guess, my fault. I was stupid and inappropriate. That was the cause for [my] termination." Minor also noted that he had been working with a social worker and had not experienced any problems at the Ashcroft group home, another placement.
Minors mother disagreed with the prosecutors statements and said he had been making "tremendous progress toward his goals" once the staff of Unity changed minors medication. She claimed the Unity staff wanted to keep minor as part of their program despite the incident. She also said minor was not at high risk to reoffend and that an outpatient program would be beneficial to him. The court referred the matter to the probation department for a supplemental report and recommendation that was filed on January 24, 2003. The recommendation was that the minor be committed to the CYA.
On January 27, 2003, the court conducted a contested disposition hearing and ruled:
". . . I have reviewed the entire file and its quite extensive. And Michael has not taken advantage of the opportunity to rehabilitate in the community. He still poses a danger to children. He has no insight to the sexual offenses he has committed. He has failed to cooperate in every placement and at every time — and hes aggres[s]ive and abusive. And these — and so we have to go to a higher level of confinement, which is the California Youth Authority where he will be evaluated and placed in their sexual offender program. [¶] ... [¶]
"The ward has exhausted all local rehabilitative efforts and these efforts have failed or are inappropriate. The Court is satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefited from the reformatory educational discipline or other treatment provided by the Youth Authority.
"Therefore, the Court orders that the minor be continued as a ward of the Madera County Juvenile Court and be committed to the California Youth Authority for a term of 9 years and 4 months pursuant to Section 731 of the Welfare and Institutions Code."
After the court ruled, minors mother challenged the prosecutors January 10 statements about minors progress in the group home. She pointed out the group home placement was a two-year program, that minor had completed one year of that program, and at the time of termination the minor had almost attained "Level 6, that is more than half way through the program on the sexual offense." The court responded by noting minor had shown little or no insight into why he was in treatment, had been a disciplinary problem, had engaged in aggressive behavior, and demonstrated no remorse. Minors mother countered by saying her son had shown great strength, empathy, and remorse. Minor then told the court:
"Your Honor, ... I understand that I made no progress in the group home. It is true that at that time I didnt comprehend at all what I had done. That is true for the first couple of years. My last group home, though, I got to working with people that I was able to communicate with and built a relationship with, which is something I couldnt do at my first outpatient program for my first group home. I didnt feel comfortable talking with those people. And that is perhaps why some people say that I am not remorseful about what I have done . . .."
When minor suggested the court was "giving up" on him, the court indicated "we are not giving up because you need treatment." Minor said he considered the disposition the equivalent of giving up because the court was sending him "to a correctional facility where theyre more likely to become physically violent." Minor emphasized he was not physically violent and then, after brief questioning by the court, admitted he had been verbally and physically aggressive. However, in making the admission, he claimed the only recent instance of physical aggression was his outburst at Unity. Minor then asked the court why it was going to send him "somewhere I am going to be around a bunch of people who are worse than I am?" The court pointed out minor was a sex offender and the court was sending him "someplace where youre going to get help." Minors mother then claimed he was getting help in the group home.
A. Probable benefit to minor of CYA placement
Minor contends there was no probable benefit to him by being placed in CYA. He focuses on CYAs alleged inability to deal with his mental illness and related problems. In making this argument, minor relies on In re Aline D. (1975) 14 Cal.3d 557, in which the Supreme Court described categories of inappropriate cases for commitment to CYA. These cases include:
"... [M]entally retarded or mentally disturbed youths, `for whom the probable benefits of treatment within the mental health system exceed those of programs within the Youth Authority. The Youth Authority has no programs for the mentally retarded nor psychiatric treatment programs for the mentally ill." (In re Aline D., supra, 14 Cal.3d at p. 565.)
More than a quarter century has passed since the decision in Aline D. and the foundations of Aline D. were seriously eroded by subsequent legislative amendments to the Juvenile Court Law. (In re Marcellus L. (1991) 229 Cal.App.3d 134, 144.)
Today, the statutes governing the CYA are designed to protect society from the consequences of criminal activity. To that end, community and victim restoration, offender training, and treatment shall be substituted for punishment and shall be directed toward rehabilitating young persons who have committed public offenses. (§ 1700.) The CYA is statutorily empowered to employ psychologists and other mental health professionals to treat wards and administer psychotropic medications. (§§ 1077, 1078, 1755.4.) Current specialized programs at CYA include drug and alcohol abuse formalized treatment, sex offender treatment, psychiatric hospitalization, and medical/psychiatric-intensive treatment. The latter program provides services for wards with serious emotional problems and integrates psychotherapy with the usual core components of CYA programming, such as education and recreation. (See <http://www.cya.ca.gov/programs/special.html> [as of Nov. 13, 2003].) To achieve its treatment goal, CYA has broad discretionary powers in the handling of juveniles committed to it. (In re Michael I. (1998) 63 Cal.App.4th 462, 467.)
Minor summarily asserts there is no evidence that he would benefit "psychiatrically" from a CYA commitment, or that CYA was equipped to effectively treat his mental illness. The deputy probation officer noted in her January 24, 2003, supplemental report: "The California Youth Authority will provide the minor with a case plan to service his needs including a sex offender program, mental health counseling, substance abuse counseling and continued education so he can receive his high school diploma." In reviewing juvenile wardship proceedings, we apply the same principles as those invoked in scrutinizing a criminal conviction, i.e., the evidence must be construed in the light most favorable to the finder of fact. (In re Dennis B. (1976) 18 Cal.3d 687, 697.) The direct evidence of one witness is sufficient to prove any fact. (Evid. Code, § 411.)
We conclude the supplemental report and recommendation of the deputy probation officer constituted substantial evidence of a probable benefit to the minor from a CYA commitment. Reversal of the disposition order is inappropriate.
B. Less restrictive alternatives to CYA
Minor contends there is no evidence that less restrictive alternatives to the CYA would be ineffective or inappropriate in his case. Specifically, minor points out he was making progress at the group home. More urgently, he contends the fact the group home was willing to allow him to remain was "unrebutted evidence that this lesser alternative to CYA had not failed and was still appropriate."
Respondent contends the most recent quarterly reports from Unity do not support minors assertion. In a report signed October 28, 2002, a group home representative stated that minor had some difficulty adjusting to the group home setting, despite extensive experience with similar settings. Minor received 26 incident reports since his arrival in January 2002. The representative said this amounted to an unusually high number and were written because minor was disrespectful, inappropriately aggressive, refused to do assigned work, or refused to take psychotropic medication. Minor was moved from Atlas House to Emerson House and his behavior improved to a certain extent. However, the representative noted that minor was extremely resistant to staff and other professionals and had been reprimanded for manipulating the clinical staff. Moreover, minor refused to follow direct orders from the director of the program.
In a report signed January 7, 2003, a social worker indicated minor had been transferred from Emerson House to Ashcroft House on December 22, 2002. The transfer occurred after minor had an altercation with his peers in Emerson House. After the altercation, minor threatened to hurt his roommate when he fell asleep and used his fist to punch a hole in the wall of a hallway at Emerson. During the previous quarter, minor demonstrated difficulty conforming to the program by being defiant, argumentative, and disrespectful to clients and staff. He received four disciplinary referrals from school for the failure or refusal to do assigned work or homework and for unacceptable conduct. He received four incident reports in the group home for fighting, not following the rules, using profanity, and for disrespecting others. He was also docked twice for not following the "belt rule" and being disrespectful in a recreation room. The social worker noted that, as of the time of her report, minor had been in the Ashcroft House for 15 days and had not committed any incidents or infractions during that period. She also noted he had been taking his medication as directed during that time.
A decision by the juvenile court to commit a minor to the CYA is not an abuse of discretion where the evidence demonstrates probable benefit to the minor from commitment to the CYA and where less restrictive alternatives would be ineffective or inappropriate. (In re Pedro M. (2000) 81 Cal.App.4th 550, 555-556.) This standard was satisfied here. In her January 7, 2003, quarterly report about the minor, the social worker concluded: "Because of [minors] resistant and non-compliant behaviors, it is recommended that his involvement in this program be closely monitored." She further recommended that minor remain placed with Unity. The deputy probation officer who prepared the January 24, 2003, supplemental report noted that minor had been given multiple opportunities to assist himself in rehabilitative efforts at the local level but had not taken advantage of the help offered.
Taken together, the various reports constitute substantial evidence from which the juvenile court could reasonably conclude that minor—an offender since 1997—had been given ample opportunities to pursue less restrictive alternatives. In addition, they support a conclusion that those alternatives had proven to be ineffective, and that minor would benefit from the reformatory educational discipline provided by the CYA.
DISPOSITION
The disposition order is affirmed.
WE CONCUR: LEVY, J. and GOMES, J. --------------- Notes: All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.