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In re N. N.

California Court of Appeals, Sixth District
Feb 17, 2011
No. H035310 (Cal. Ct. App. Feb. 17, 2011)

Opinion


In re N. N., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. N. N., Defendant and Appellant. H035310 California Court of Appeal, Sixth District February 17, 2011

NOT TO BE PUBLISHED

Santa Clara County Super. Ct. No. JV31149D.

ELIA, J.

In this delinquency proceeding appeal, appellant N.N., who is now an adult, challenges the order of the juvenile court committing him to the California Department of Corrections and Rehabilitation (CDCR), Division of Juvenile Justice (DJJ). (See Welf. & Inst. Code, §§ 602, 731, subd. (a)(4), 777, 800.) He maintains that the juvenile court abused its discretion in making that order.

All further statutory references are to the Welfare and Institutions Code unless otherwise specified.

We affirm.

A. Procedural History

On March 6, 2006, a section 602 petition was filed against appellant. It alleged that appellant had committed two criminal offenses: theft or unauthorized use of a vehicle in violation of Vehicle Code section 10851 (count one) and disturbing the peace at school in violation of Penal Code section 415.5, subdivision (a) (count two). Appellant admitted the petition, the court found him suitable for deferred entry of judgment (DEJ), and appellant signed a DEJ contract on April 10, 2006.

On April 14, 2006, a second section 602 petition was filed against appellant. It alleged that on or about April 9, 2006 appellant had committed an assault with a deadly weapon, specifically a knife, in violation of Penal Code section 245, subdivision (a)(1), and, in committing that offense, he had personally inflicted great bodily injury within the meaning of Penal Code sections 12022.7, subdivision (a), and 1203, subdivision (e)(3). On August 25, 2006, appellant admitted the second petition and the court declared a DEJ failure and consolidated the two section 602 petitions.

A probation officer's report indicated that the underlying facts of count one in the first delinquency petition involved appellant, who was then in middle school, taking his uncle's car without permission. He and a friend had both driven the vehicle and other minors had been passengers. The car had crashed into a tree and there were injuries; the vehicle was a total loss. Count two involved appellant yelling "Norte" to another minor, who replied with a gang taunt, during a break at middle school on the playground. Appellant threw the first punch and the two fought. Appellant later told the probation officer that some of his friends could be considered gang members. The report indicated that appellant's older brother had engaged in gang-related acts leading to incarceration.

A probation report stated with regard to the second delinquency petition alleging assault with a deadly weapon that appellant had yelled out gang slurs and then attacked the victim while the victim was out walking with his girlfriend. Appellant had called the victim a "Scrap." Appellant had run up from behind, hit the victim in the back of the head, placed the victim in a headlock, and stabbed him in the back more than once. The victim had been hospitalized for four days.

In September 2006, the juvenile court adjudged appellant a ward of the court, placed appellant's care, custody and control under the supervision of the probation officer, and approved appellant's placement in the Glen Mills facility in Pennsylvania. On December 7, 2006, appellant was placed in that facility.

Appellant successfully completed the Glen Mills program on June 16, 2008.

On August 12, 2008, a notice of probation violation was filed. It alleged that appellant failed to comply with court-ordered curfew on three nights (August 8 to 10, 2008), appellant failed to obey his parent by failing to return home as directed by mother on three dates (August 8 to 10, 2008), appellant failed to notify probation officer of a change in residence after failing to return home and residing at an unknown residence (August 8 to 10, 2008), and appellant failed to follow probation officer's instructions by associating with his brother out of his mother's presence on August 9, 2008. The probation officer's report indicated that his mother had repeatedly instructed appellant to return home but appellant had failed to comply.

Before the alleged probation violations, during a traffic stop in July 2008, police had discovered appellant traveling in a car driven by his brother, which association violated probation. During a probation office visit, appellant was reminded to abide by the rules and regulations of probation. According to probation reports, on July 26, 2008, police responded to appellant's residence after appellant "threatened his mother by saying he would 'do something that would make it worth going to CYA' if she did not allow he and his friends to come in to [sic] the house." Police located appellant near his home in the company of the D. brothers, whom appellant considers to be cousins because they are the children of his uncle's wife. One of the brothers (D.D.) was on juvenile probation and appellant was taken into custody for violating probation. Appellant's cellular phone contained gang-related photographs and information. Appellant was released to his mother on July 28, 2008. Supervision of appellant's case was transferred to the Probation Department's Gang Unit. On August 1, 2008, appellant had met with Deputy Probation Officer Bernie Rocha, who had reminded appellant that he was not to associate with D.D. under any circumstances and he was not to associate with his older brother except under his mother's supervision.

Appellant admitted violating probation as alleged. On September 24, 2008, the court ordered appellant continued as a ward of the court under the care, custody, and control of the probation officer and sent him back to Glen Mills in Pennsylvania.

On July 8, 2009, the probation officer filed a petition to modify. A probation officer's report, filed and dated July 8, 2009, indicated that appellant had alleged that he had been physically abused by a Glen Mills staff member and juvenile probation had decided to return appellant to Santa Clara County. Appellant had been returned to Santa Clara County Juvenile Hall on June 19, 2009 and he had been released to his mother's custody on an electronic monitoring program (EMP) on June 22, 2009, pending the filing of the section 778 petition. The court granted the petition and ordered appellant to be continued as ward of the court and returned him to parental custody on continued probation. It ordered appellant to serve 55 actual days on the Community Release Program (CRP).

The court did not grant a separate motion to modify (§ 778) brought by appellant's counsel.

On October 7, 2009, a notice of probation violation was filed. It alleged that appellant violated probation by possessing a knife on September 6, 2009, by failing to report to the Probation Department as directed in that he did not appear for a scheduled office visit on September 23, 2009, and by failing to notify the Probation Department of a change in address in that his current whereabouts were unknown.

A warrant for appellant's arrest was issued. It was recalled on October 13, 2009.

On January 11, 2010, appellant admitted violating probation by possessing a knife and, following a hearing, the juvenile court found the remaining allegations to be true.

On February 11, 2010, following the completion of a contested disposition hearing, the juvenile court found that appellant would benefit from the reformatory and educational discipline offered by the CDCR and appellant's mental and physical condition make it probable that he would benefit from a DJJ placement. The court stated that it considered alternatives to such placement and ordered appellant committed to the DJJ. Based upon the individual facts and circumstances, the juvenile court set a four-year maximum period of physical confinement (§ 731, subd. (c)).

B. Evidence at Contested Disposition Hearing

Appellant N.N. testified in his own behalf. He was 18 years old and then confined in Santa Clara County juvenile hall. While in the hall, he had earned and then maintained an "A Level" classification. He had twice reached the highest status in the unit by abiding by all staff rules and doing extra work. He had graduated from high school. He had also participated in and graduated from the Asian American Recovery Services (AARS) program, which was a life skills program. He had not been in any fights in juvenile hall. Each week, he had participated in the juvenile hall's sports tournament.

Appellant acknowledged that his brother was a Norteño gang member. When appellant was 14 years old, which was his age when he committed the crimes, he had looked up to his brother. Appellant claimed that, on the first day at Glen Mills, he decided he wanted to get out of gangs.

Appellant confirmed that, after he returned from Glen Mills the first time, Probation Officer Rocha had met with him and reviewed the conditions of probation. Rocha told appellant that he could not have weapons, he could not associate with his brother unless he had adult supervision, he could not associate with other gang members, he could not associate with the D. brothers, he could not have gang-related clothing, he had to abide by a curfew, and he could not change his residence without notifying probation.

In August 2008, appellant, with his mother's permission, attended a Raider's football game with his brother and the D. brothers. Appellant explained that he had not seen his brother for a long time, he missed him and wanted to see him, and he thought it would be okay. When he went to the football game with his brother and the D. brothers, he knew he was violating probation and he had been warned that he risked being committed to the C.Y.A. if he violated probation. Appellant failed to return home after the football game and spent the night with his brother at his uncle's house. Appellant had been out of Glen Mills for about two months.

At the time, appellant had thought going to the game with his brother and the D. brothers was not a big deal. In hindsight, he recognized that it was not the right decision. At the disposition hearing, appellant stated that he had learned from his mistakes and he now believed that it was very important to listen to his probation officer.

After the August 2008 probation violation, appellant was sent back to Glen Mills. Appellant admitted that he had gotten in trouble at Glen Mills during his second stay. He explained that the problem occurred when he confronted his "buddy, " with whom he had been paired under the Glen Mill's buddy system, about violating a rule but failed to notify the staff.

On June 22, 2009, after returning from Glen Mills for the second time, the court ordered appellant released from juvenile hall on electronic monitoring. On July 8, 2009, the court placed him in the CRP for 55 days. Appellant completed the CRP on August 31, 2009.

On September 6, 2009, appellant was discovered in possession of a knife. Appellant had been on his way to see his sister. He admitted telling a probation officer that the knife in his possession was for his protection. He knew that he was violating probation by possessing the knife and he had taken that risk. He denied that his probation officer had counseled him about seeing his sister and denied that he knew that he should not be around his sister's associates. Appellant was held in custody for a day and then released.

Appellant asserted that he was unaware that Probation Officer Rocha had left his card for him; he denied leaving home when he knew that Probation Officer Rocha was trying to contact of him. Appellant said it was not true that, after his mother gave him Rocha's card, he packed up his belongings and announced that he was not going to be supervised by Rocha. He said that his mother was "confused" and had lied.

Appellant testified that he had previously worked as a machinist at Automation Control from about July 2009 until his arrest in October 2009. According to appellant, he took off two weeks, during the end of September 2009 and the first week in October 2009, to take care of his girlfriend, who was sick. He testified that the girlfriend was his life and everything to him. Appellant denied telling Probation Officer Rocha that he did not tell his employer that he would be taking time off. Appellant claimed that there had been a misunderstanding and he maintained that he had not quit his job.

On October 8, 2009, appellant was with his cousin C.A. when he was arrested at Milpitas High School. They had gone to the school to pick up his girlfriend, who was a student. At that point in time, he had stayed with his girlfriend every night for almost two weeks. He claimed that he had told his mother where he was staying and testified that she was "confused" when she told the probation officer that she did not know his whereabouts. He acknowledged, however, he had not informed probation of his whereabouts as he had been instructed to do by his probation officer. He said he had figured it was not a big deal because he was taking care of his girlfriend.

Appellant indicated that he had successfully stayed away from gangs except as to family members. Because he had been in custody so much, appellant had no friends outside of his family. He admitted that his brother was "very heavily into gangs." He could not answer the question whether his sister hung around with gang members a lot but he was aware that her murdered boyfriend was heavily into gangs. He had not spoken to the D. brothers since attending the August 2008 Raiders game. Appellant had thought it would be okay to hang out with C.A. because C.A. was "not into gangs" and C.A. had not believed he was on probation.

Appellant acknowledged that his girlfriend, with whom he had a two year relationship, was pregnant. He did not want his child to grow up without a father like he had. His father had been in prison since appellant was eight years old. Appellant explained that he really wanted to change his life and he would be working and going to community college. He testified that he no longer wanted to be in a gang. Appellant thought that it was important to be able to financially support his girlfriend, who was due to give birth in June 2010.

Appellant admitted that he had not been able to follow the directions of probation when he was out of custody. Appellant confirmed that, if released on probation under Rocha's supervision, he was going to follow an instruction even if he found it unreasonable. He said he had learned from past mistakes, he had a baby on the way, and he wanted to work and go to community college. He said that he had set goals for himself. He believed he had previously "messed up" because he really missed his family and it was hard to stay away from his brother who was still his brother. Appellant knew that he had a baby on the way and he needed to change.

Bernardino Rocha, a Santa Clara County deputy probation officer, was recognized by the court as an expert with regard to placement and recommendations for delinquent youth and delinquents with street gang associations. Rocha was appellant's probation officer for certain periods between July 2008 and January 2010.

Appellant committed the section 245 offense when he was 14 years old and in middle school. In Rocha's view, the offense indicated that appellant was a sophisticated gang member. During that unprovoked offense, appellant yelled gang slogans and stabbed the victim from behind.

Appellant's family is gang entrenched and appellant had a history of associating with Norteño gang members, fighting with rival or challenged gang members, and engaging in "gang talk." Appellant's brother was a documented member of the West Side Mob and an associate of El Hoyo Palmas. Rocha had been the investigating officer in a case involving the brother. According to Rocha, appellant's sister could be considered a member of the El Hoyo Palmas based on her associations. The D. brothers, who were related to appellant by marriage, were documented members of the West Side Mob. The section 707, subdivision (b), offense, the stabbing, was a gang offense and involved a confrontation with a rival gang member during which appellant stabbed the victim twice in the back. Appellant had engaged in gang talk.

Appellant successfully completed Glen Mills for the first time on June 16, 2008. Rocha believed that the Glen Mills program was a rigorous program and the best program available. It offered an educational component, vocational programs, sports programs, and the opportunity to avoid gang activity.

After he returned home, appellant was defiant and argumentative with his mother. He threatened to do something for which it was worth going to the CYA if she did not allow his friends to come to the house. In July 2008, about a month and a half after returning home, appellant was admitted into juvenile hall for associating with individuals in violation of probation and not returning home until 1:30 a.m.

After the July 2008, incident, appellant was reassigned to Rocha, who was with the Gang Unit. Rocha met with appellant on August 1, 2008 and told him that he was prohibited from having unsupervised contact with his brother. Rocha told appellant not to associate with the D. brothers. Rocha went to appellant's residence on August 6, 2008 to review his living situation.

On August 8, 2008, appellant went with his brother and the D. brothers to a preseason Raiders-49ers game and failed to return home after the game. On My Space, Rocha discovered a photo of appellant, his brother, and the D. brothers. In a photo, appellant was wearing San Francisco 49ers gang paraphernalia. Appellant's probation conditions forbid him from possessing any 49er paraphernalia. Rocha arrested appellant on August 11, 2008 when appellant came in to see him.

Rocha discussed the various disposition options with appellant, who remained in custody, and warned him that, if his conduct continued, he might face a DJJ commitment. On September 24, 2008, appellant was recommitted to Glen Mills; he was transported there on December 10, 2008.

On April 20, 2009, appellant alleged that he had been physically abused by a Glen Mills staff member. Appellant indicated that the Glen Mills staff member had found him using a cell phone without permission and had "slapped him in the face and hit him several times with an open hand and [had thrown] him to the ground." Appellant was returned from Glen Mills for the second time on June 19, 2009 and placed in the Santa Clara County juvenile hall. Child Protective Services for the State of Pennsylvania investigated appellant's allegation and found it unfounded.

Appellant was released from juvenile hall on June 22, 2009 on the EMP. Appellant was moved to the CRP on July 8, 2009 and he completed that program on August 31, 2009.

On September 6, 2009, police stopped appellant and found him in possession of a knife, which appellant said he had for protection. He also told police that he was on his way to see his sister. Appellant's case was reassigned to the Probation Department's Gang Unit on September 16, 2009.

Rocha first attempted to contact appellant on September 18, 2009. Rocha left his business card with his name and phone number and a message to come to see him on September 23, 2009. Appellant's mother called Rocha the same day and said she and appellant would come in. Appellant did not come in as directed.

On October 8, 2009, police, who had heard there was going to be a gang fight at Milpitas High School, stopped appellant in the vicinity of the school. Appellant was in the company of a cousin, C.A., who was a documented Norteño. Rocha had no proof that appellant knew this individual was a documented gang member. It was Rocha's understanding that appellant was there to pick up his girlfriend from school.

Rocha confirmed that appellant did not get in any fights during his commitments to Glen Mills or during his stay in juvenile hall since October 8, 2009. He also acknowledged that appellant had never gotten in trouble for associating with a non-relative gang member. Rocha also recognized that there were minors held in juvenile hall who were getting in trouble for gang activity, which indicated that they were more entrenched and active in their gang lifestyle than appellant, who had not gotten into trouble and was still on "A" level in juvenile hall.

Nevertheless, Rocha recommended that appellant be committed to the DJJ. Rocha had written roughly 2000 dispositional probation reports and this was only the fourth recommendation he had made for such commitment. He viewed the probation violations as serious because appellant was well aware of his probation conditions. Rocha believed that appellant "absconded because he didn't want to be supervised by [him], much less report to [him] as directed." In his view, appellant's conduct indicates "someone who doesn't care about the consequences of their actions and would prefer to take a chance and see what... happen[s] once they are either arrested or contacted." In Rocha's opinion, the lack of caring about consequences is a factor indicating dangerousness. In addition, appellant was choosing to associate with negative peers, individuals who were documented gang members or had prior sustained delinquency petitions. Probation officers in the gang unit attempt to disrupt gang behavior by intensive supervision. Appellant's failure to abide by even the simple requirement of reporting indicates he posed a risk to society.

Rocha thought that the EMP was not an appropriate disposition because appellant had absconded from probation. He thought that a juvenile hall commitment was not an appropriate disposition because it was limited to 180 days, which was "not a sufficient period of time to hold him accountable for his behavior, " and because it offered no greater opportunity for rehabilitation than already provided by Glen Mills. Rocha thought that its Life Skills Program was not a high caliber program, the participants regarded it as a social/recreational outlet, and appellant had already participated in Glen Mills, which he believed provided the best program options. As to the ranch option, Rocha did not think that appellant would get anything new out of the Ranch or its gang intervention program ("I believe that [N.] can teach the course on his own") and thought that the staff did not have the depth of experience to meet appellant's needs. He did not consider any CDCR alternative program; by the time of the hearing, appellant had aged out.

Although appellant had testified that he wanted to change, Rocha did not believe that appellant would be able to follow through given his past behavior. Appellant had chosen to do whatever he wanted regardless of the consequences and had walked away from probation supervision. It was Rocha's opinion that appellant presented a risk to society and there was a danger that he would engage in further violence.

Rocha believed that a DJJ commitment was appropriate for appellant because it would hold him accountable for his behavior and protect the community for an extended period of time. After returning from Glen Mills, appellant quickly went back to his old ways. The DJJ offered appropriate programming, including the gang IMPACT Program, anger management, and vocational services. He thought the DJJ was the last best chance to reach appellant before he was held accountable as an adult. Rocha also thought it was important to not send a message to other juvenile probationers around appellant's age that they can get away with misconduct because they are close to 18 years old.

Rocha conceded that a youth that had not already proved himself as a gang member might be forced to prove himself at the DJJ, while a youth who was already a well-respected gang member might be able to avoid such requirement. He agreed that if appellant was considered to be a gang dropout at the DJJ, he would be at greater risk of personal assault. But he thought that appellant would be regarded as someone who had already "earned his chops."

Daniel Macallair, the executive director of the Center on Juvenile and Criminal Justice, was recognized as an expert regarding the DJJ services and its deficiencies. He believed that the DJJ should be closed.

Macallair testified regarding the case of Farrell v. Cate, the ongoing litigation involving the DJJ. A consent decree required the DJJ to adopt an integrated behavioral treatment model. The DJJ was trying to move from a punitive culture to a rehabilitative one. But a plan was still being developed and was not yet implemented.

Macallair recognized that a stipulation in the Farrell lawsuit required the DJJ to improve its internal management systems. The DJJ had developed a ward informational network system and performance based standards. The DJJ was trying to develop uniform methods for collecting data across institutions and across living units and, in 2007, a new reporting system was instituted.

Macallair indicated that the biggest issue for the DJJ was violence within the institution. The October 2009 Krisberg Report indicated that, while wards generally feel safe in the southern reception center and the O.H. Close facility, violence was up at the Preston facility. The latest report generally showed current rates of violence were at the same level as they were in 2004. The rates of use of force by staff had not changed since 2004.

Macallair stated that the average age at commitment to the DJJ was about 17 or 18 years. The average age of those committed to the DJJ was 19 to 19 and a half years. A youth committed from the San Jose area would be sent to the Preston facility for intake and would likely be assigned to the facility unless he had special needs.

Macallair indicated that the core population units had a severe problem with gangs and gang subculture. He described the problem as pervasive. According to Macallair, approximately 70 percent of those in custody at the DJJ were gang members.

Maccllair indicated new arrivals at the DJJ faced an informal initiation and gang members usually challenged them. He described the various ways a new arrival might be challenged and how his response affected his standing. If a youth informed on another youth to a guard, he was labeled a snitch and subject to attack and assault by the other wards. If a youth remained passive, he was subject to exploitation and might have to pay "rent" for protection. If a youth fought, it was likely that he would be approached to join a gang.

Macalliar explained that if a youth was a Norteño gang member but refused to align himself with that gang in the DJJ, he would likely be subject to retaliation by members of that group. He stated that the most vulnerable youths in a DJJ facility were those trying to get out of a gang. He indicated this situation was documented in the reports of experts in the Farrell lawsuit.

Macallair indicated the facilities themselves were not designed for rehabilitative purposes. He stated that "youth in core programs in Northern California generally reside[d] in large open dormitory facilities." He indicated that the DJJ's open dormitory design created a safety issue and staff could not adequately protect the wards, particularly at night. With the gang tensions and rivalries, assaults and violence were a constant issue. Macalliar indicated that gang membership was necessary to improve or maintain a ward's quality of life in an open dormitory. At night, on a living unit, there was a ratio of only one supervising staff person, who was locked in a guard station, to 25 wards.

Macallair stated that the DJJ had attempted to control the gangs through traditional harsh correctional methods, such as long term confinement and special management programs, which had not worked. He was aware that the DJJ now had a program called Project IMPACT. But, even if a ward participated in that program, it was a small part of his overall experience at the DJJ. In his opinion, the living environment determined the success of everything else. Feeling safe and secure was an essential element of rehabilitation and the youth in the DJJ generally did not feel safe. He indicated that a youth's experience at the DJJ was not going to make him less likely to be gang affiliated. A DJJ commitment was more likely to reinforce gang affiliation for reasons of protection and solidarity.

Macallair indicated that the mental health services for the general population were generally reserved for crisis intervention, such as suicide intervention. Long-term therapy was generally unavailable to wards in the general population.

As to post-secondary educational opportunities, Macallair indicated that community college programs through correspondence were available at Preston. As to the possibilities for vocational training or experience, Preston had an auto body shop, an auto mechanic shop, a computer shop, a wood shop, a printing press program, a culinary program, and a landscaping program. He stated, however, that a lot of the assaults occurred during movement from a living unit to a vocational or educational program. The danger of assault was ever present.

Macallair acknowledged, however, that it was possible for a ward to be sent to the DJJ and avoid gang entrenchment. He specified the culinary program at Preston, which was considered neutral territory. He also mentioned a protective custody unit for wards who wanted to get out of gangs. He cautioned that those youths still faced the problems of big, open dormitories. He stated that the gang awareness program, a resource group run by youth correctional counselors, was "not a bad thing" but it was "not particularly effective."

In Macallair's opinion, a commitment to DJJ, in its current state, was only appropriate if the overriding goal is incapacitation or punishment. He believed that incapacitation would be appropriate for a ward who had "no redeemable qualities" and "demonstrate[d] an ongoing capacity [for] violence over and over."

In contrast, Macallair thought Glen Mills was a "good integrated program, " which offered "everything from counseling to education...." It had a good sports program and an excellent employment and training program. He stated that "the range of programs that it offers is as good as you are going to find anywhere." He was unable to name any local alternative to Glen Mills.

Josephine Slonski, an intake court liason for the DJJ, was recognized by the court as an expert with regard to DJJ's operation, facilities, programs, and services. According to Slonski, when the youth initially arrived at the DJJ, they underwent extensive assessment through testing, screening, interviews and evaluation to assess their medical, academic, psychological and risk needs. Each youth was assigned a counselor and a case manager. A youth placed in a DJJ facility was required to participate in treatment and counseling.

The youth met weekly with counselors for small-group and individual counseling. They also received counseling from their case managers in a small group or individually. Additional counseling might occur in connection with resource groups.

Based upon her review of the documentation, she concluded that appellant appeared to have an issue with negative peers. The DJJ had a cognitive behavior program intervention called counterpoint. The counterpoint program was a 33 session course that addressed risky thinking, risky behavior, problem solving, dealing with negative peers and antisocial attitudes.

As to gang issues, Slonski described the DJJ's gang intervention program, which was called Project IMPACT. It met once a week for two hours for three modules, each 11 to 12 weeks long. The program involved lecture and small group discussion with facilitators who were ex-offenders. The first module focused on each participant defining himself as a man and taught the importance of accountability, integrity, and responsibility. The second module concerned violence prevention. The third module addressed addiction.

Slonki acknowledged, however, that a January 2009 report evaluating the IMPACT Program found that 46 percent of the wards completing the program had post-program "violent violations." Further, it was not clear whether beneficial outcomes were causally related to the program. The report indicated that the program's curriculum needed further development and refinement. With regard to youth who had completed module one of the program, data showed a decrease in "violent violations" for youth ages 14 to 18 but showed an increase in such violations for youths 19 to 23. But these were only preliminary results.

Slonski explained that the DJJ also offered a semester course regarding the impact of crimes on victims. It addressed the physical, emotional, and financial impact on victims.

With respect to the fact that appellant was expecting to be a father, Slonski mentioned the semester course, "Young Men as Fathers." That course addressed various aspects of fatherhood, including a father's legal obligations, financial responsibilities, and emotional responsibilities and the physical aspects of fatherhood.

Slonski testified that, if anger was determined to be an issue, anger replacement therapy was offered. In addition, the DJJ offered a variety of interactive journals targeting certain issues, including, for example, relationship skills, family dynamics, maintaining positive change, handling difficult emotions, and gangs. The journals were used in conjunction with small groups or individual counseling.

In addition to counseling, DJJ offers some opportunities for post-secondary education, vocational training, and employment. The DJJ provides recreational opportunities as well, including intramurals and recreational lounges.

Slonski acknowledged that a large percentage of the DJJ population was gang affiliated. Out of the DJJ's current total population of 1440 youths in all facilities, 415 youths had sustained a gang enhancement or were required to register as a gang member. She acknowledged that youth were not separated based on their gang affiliation. But, in her opinion, a youth with gang issues could be rehabilitated and remain safe at the DJJ.

Slonski described the measures that had been taken to address violence in the DJJ facilities. One change was a housing classification system that assigned individuals to core living units based on their risk for violence and individual behavior. Youth now had an incentive to curb violent behavior to live in a unit with more opportunities. A violence reduction committee at each facility was examining the location and cause of violence. In addition, staffing had been increased and living unit size had been reduced.

As to compliance with the special master's requests in the Farrell lawsuit, Slonski testified that the five DJJ facilities were at 71 to 86 percent compliance, with Preston at 84 percent "substantial compliance." She related the specific compliance percentages with respect to the areas of education, medicine, safety and welfare, and mental health. She reported that the DJJ was contesting the Krisberg Report's finding that levels of violence had remained the same because a different data collection system was used in 2005 and 2006 and the comparison was invalid. Data was now collected on a daily basis and the reporting included all violent incidents, regardless of the level of violence. A fight between two youths was now counted as two incidents of violence, even where one youth might have acted in self-defense. She conceded, however, that the rate of violent incidents at the Chaderjian facility had increased from 2007 to 2009.

The Krisberg report also disclosed the rates for level-three D.D.M.S. cases, which involved the highest level of discipline for serious (not necessarily violent) misconduct, and the number of use of force incidents by staff at the DJJ. Level-three D.D.M.S cases had gone down dramatically at Preston. Slonski indicated that, regardless of the report, there had been an overall reduction in violence at the DJJ since 2007, especially at the Preston facility.

Slonski acknowledged that the Krisberg report also found the overall condition of the DJJ facilities to be "quite poor" and indicated that there were substantial issues of deferred maintenance and problems of inadequate program space. Slonski confirmed that one of the consent decree conditions required the DJJ to construct new facilities but that would not occur before appellant was committed.

Slonski indicated that the Preston facility was the most likely placement for appellant, who was already 18. It housed the reception center and living units. Preston's population at the time of the hearing was about 340 to 350 men, which was well below its capacity.

Based on appellant's commitment offense, Slonski indicated appellant would have a two-year projected parole date. Youths could earn "time cuts" by progressing in the areas of behavior, treatment and counseling, and education and employment. A maximum of 15 days per month could be earned. The projected parole date could also be extended if time was added as discipline for certain misconduct.

Slonski confirmed that the DJJ offers parole services. Each living unit has a half-time parole agent who focuses on matching individuals to parole reentry services. When paroled, each youth is assigned a parole officer and subject to supervision and parole conditions.

C. DJJ Commitment Not Abuse of Discretion

Appellant contends that the juvenile court abused its discretion in committing him to the DJJ because (1) the court relied on testimony from Probation Officer Rocha that was impermissibly based upon facts not recited in the record or grounded in supposition and speculation, (2) the evidence was insufficient to show appellant was a current threat to the public and the court failed to consider the totality of the circumstances, (3) there was evidence of an appropriate, less restrictive alternative, and (4) the evidence was insufficient to show a DJJ commitment would result in probable benefit to him.

1. Probation Officer Rocha's Testimony

At the contested disposition hearing, Probation Officer Rocha testified as an expert. Appellant now contends that the juvenile court, in committing him to the DJJ, improperly relied on Rocha's testimony because it was "impermissibly based on facts not recited in the record and/or on conclusions grounded in supposition and speculation." Appellant identifies numerous statements made by Rocha that he now asserts were improper and argues that the testimony does not constitute solid evidence supporting the DJJ commitment. He relies upon In re Teofilio A. (1989) 210 Cal.App.3d 571.

In re Teofilio A. involved a minor whose only offense was a single $60 sale of cocaine not involving aggressive or assaultive conduct, threats, weapons, or resisting arrest and who otherwise had no criminal record. (Id. at p. 578.) The probation officer's report was the only evidence before the juvenile court at disposition. (Id. at pp. 575, 577.) A defense objection was made to the probation officer's statement in the report that minor had "a sophisticated criminal attitude." (Id. at pp. 574 -575.) On appeal, minor successfully argued that the juvenile court abused its discretion by ordering a California Youth Authority (CYA) commitment. (Id. at pp. 574, 579.)

In explaining its decision to reverse, the appellate court first observed that the report "fail[ed] to show the probation officer considered less restrictive alternatives or why such alternatives would be ineffective or inappropriate." (Id. at p. 577.) It noted that nothing in the record indicated that the court had "considered and rejected reasonable alternative dispositions." (Ibid.)

The appellate court concluded that the record did not show that minor was "a suitable candidate for the CYA." (Id. at p. 577.) The court focused on minor's lack of any previous criminal history and the nature of the single offense. (Id. at p. 578.) The appellate court stated: "The conclusion in the probation report that the defendant showed criminal sophistication is unsupported. The report states that defendant took part in this transaction 'in a sophisticated manner.' The report continues, 'It is believed that the minor is possessed of a sophisticated criminal attitude, which was probably gained by association and involvement with more criminally sophisticated people involved in the drug subculture in Madera.' (Italics added.)... [T]he probation officer's conclusions are not based on recited facts reflecting a history of dangerous criminal conduct. The recited conclusions are grounded in supposition and speculation, not upon solid evidence. We conclude the evidence does not support the conclusion of criminal sophistication. [Citation.]" (Id. at p. 578, fn. omitted.)

At the contested disposition hearing in this case, appellant's counsel interposed no objection to Rocha's testimony that is now being challenged. "[W]hen inadmissible hearsay or opinion testimony is admitted without objection, [Evidence Code section 140's definition of 'evidence'] makes it clear that it constitutes evidence that may be considered by the trier of fact." (Cal. Law Revision Com. com., 29 B, Pt. 1 West's Ann. Evid. Code (1995 ed.) foll. § 140, p. 15.) Further, " ' "[i]t is settled law that incompetent testimony, such as hearsay or conclusion, if received without objection takes on the attributes of competent proof when considered upon the question of sufficiency of the evidence to support a finding." ' [Citations.]" (People v. Panah (2005) 35 Cal.4th 395, 476; cf. McDaniel v. Brown (2010) __ U.S. __, __ [130 S.Ct. 665, 672], per curiam [stating that " 'a reviewing court must consider all of the evidence admitted by the trial court' " when considering a Jackson (insufficiency of the evidence) claim "regardless whether that evidence was admitted erroneously" and rejecting argument that unreliable testimony of state's DNA expert should be excluded from the sufficiency of evidence analysis].) Further, in assessing the sufficiency of evidence, factual testimony given by a witness, whom the trier of fact believed, cannot be rejected by an appellate court unless it is physically impossible or patently false. (See People v. Thornton (1974) 11 Cal.3d 738, 754, disapproved on another ground in People v. Flannel (1979) 25 Cal.3d 668, 685.) Appellant is not now in the position to attack the sufficiency of the evidence based on challenges to Rocha's testimony which was elicited without objection.

Moreover, in contrast to the minor in Teofilio A., appellant committed multiple offenses, engaged in assaultive conduct involving a weapon, and was given multiple opportunities for rehabilitation. The juvenile court in this case had before it evidence of appellant's delinquency history and it focused on appellant's failures to comply with his probation conditions and his most recent defiance of probation. It found that appellant had perjured himself when he had claimed not to know that Probation Officer Rocha had left his business card and when he had denied leaving home and saying he was not going to be supervised by Rocha. The court also found the probation violation for carrying a knife to be significant since the DJJ commitment offense involved a stabbing. The court made no finding or comment as to whether appellant was a "sophisticated gang member" or had a "serious gang problem, " subjects touched upon by Rocha's testimony now being challenged.

2. Risk to the Community

On appeal, appellant argues that the totality of N.'s record "clearly indicates" that he "is not a suitable candidate for DJJ." He maintains that the evidence is insufficient to show he is a current threat to the public and the court did not consider the "totality of circumstances." As to posing a threat to public safety, appellant contends that his delinquency history before he committed the assault with a deadly weapon did not demonstrate any threat to the community. While appellant acknowledges that this section 707 offense had "gang overtones, " he stresses that it occurred about four years before the current commitment to the DJJ, when he was 14 years old and in middle school, and he had not committed any new criminal offenses. He asserts that his subsequent conduct, which he highlights in his appellate brief, reflects his positive personal growth. Appellant maintains that this conduct demonstrates he is not a threat to public safety.

We reject appellant's first claim that the court failed to consider the "totality of circumstances, " which the record does not support. (See § 725.5.) The court itself stated that it had considered "the totality of the evidence presented." It also recited all the alternatives it had considered and expressly recognized that this was a close case. There is no requirement that the court discuss every relevant fact, such as the positive steps taken by appellant.

When determining the appropriate disposition in a delinquency proceeding, a juvenile court must consider, "in addition to other relevant and material evidence, (1) the age of the minor, (2) the circumstances and gravity of the offense committed by the minor, and (3) the minor's previous delinquent history." (§ 725.5.)

In determining that appellant was a risk to the community, the court observed that appellant did what he wanted upon being released from custody and he had repeatedly violated probation. After returning from Glen Mills for the second time, appellant again quickly violated the terms of his probation. The court expressed its concern that appellant's section 707, subdivision (b), offense was a stabbing with a knife and he had a "no weapons" probation condition, yet appellant violated probation by carrying a knife and told the police officer that he always carried a knife. In addition, the court found it significant that appellant "recklessly decided to disappear from supervision" even though he knew that he would be found in violation of probation and the conduct "would likely lead to a DJJ commitment" as he had been warned by his probation officer. The court concluded that appellant was a risk to the community because his decision to disappear from probation supervision was reckless and indicated he was not amenable to rehabilitation under the supervision of a probation officer.

The evidence of appellant's willfully noncompliant behavior was sufficient to support the court's conclusion. Under the present law, "an order of the juvenile court committing a minor to the California Youth Authority may be validly based on punishment and public safety grounds so long as it will also provide rehabilitative benefit to the minor." (In re Michael D. (1987) 188 Cal.App.3d 1392, 1394; see § 202, subd. (b).)

"... 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...." (§ 202, subd. (b).) Although punishment cannot be imposed for reasons of retribution, permissible sanctions may include a DJJ commitment. (§ 202, subd. (e)(5).) Punishment may be used as a rehabilitative tool. (In re Michael D., supra, 188 Cal.App.3d at p. 1396.)

Appellant contends the remoteness in time of the assault offense and his post-assault record, which includes a successful placement in Glen Mills, no criminal offenses, successful completion of the EMP and the CRP, and his good behavior in juvenile hall detention, indicates his low risk to community safety and his positive prospects for rehabilitation. This argument minimizes his repeated violations and defiance of probation. When attempts at rehabilitation have not worked and a ward has not taken probation seriously, a DJJ commitment may be an appropriate placement. (See In re Carl N. (2008) 160 Cal.App.4th 423, 433-435.)

3. Less Restrictive Alternatives

A DJJ commitment must be supported by substantial evidence demonstrating that less restrictive alternatives are ineffective or inappropriate. (In re Michael D., supra, 188 Cal.App.3d at p. 1396.) Appellant asserts that the evidence is insufficient to show that less restrictive alternatives, such as the juvenile hall's Life Skills Program, would be ineffective or inappropriate. He contends that the juvenile court's concern that he might reoffend is highly speculative since his last substantive offense occurred in 2006 when he was 14 years old.

The long-term residential Glen Mills program, which was considered an outstanding program, had been tried twice and, each time, appellant had failed to comply with the terms and conditions of probation upon his return. The evidence showed that appellant had already received a number of less-restrictive placements. He had been on the EMP and CRP. There was testimony from Rocha indicating that a juvenile hall commitment would be too short to hold appellant accountable and its Life Skills Program, which was not as good as the program already provided by Glen Mills, would be of no greater efficacy. Rocha also did not think appellant would get any further benefit out of a Ranch placement given its programming and staff. The court could reasonably conclude, based on the evidence, that a less restrictive placement than a DJJ commitment would be ineffective.

4. Probable Benefit

To order a DJJ commitment, the juvenile court must be "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 the DJJ. (§§ 734, 1710, subd. (a); see § 1703, subd. (c); see also Gov. Code, § 12838.3.) Appellant argues that the "record on appeal is replete with evidence... that [the] DJJ has serious problems and is of questionable value to a [w]ard." He points to the evidence that the DJJ is out of compliance with the special master's orders in the case of Farrell v. Cate, the DJJ's culture encourages gang affiliation, and the DJJ has serious problems with violence as reflected in Krisberg's report to the special master. He concludes that "there is no way" that the court's finding of probable benefit can be supported by substantial evidence.

Appellant loses sight of the standard of review. "The [substantial evidence] standard is deferential: 'When a trial court's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination....' [Citation.]" (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681.) Under the substantial evidence standard, a reviewing court's opinion that the circumstances might have been also reasonably reconciled with a contrary finding does not warrant reversal. (See In re George T. (2004) 33 Cal.4th 620, 631.)

While the DJJ may have its problems, it is in the process of making improvements and shifting to an integrated behavioral treatment model. There was evidence that the Preston facility, where appellant would likely be placed, housed a population well below capacity, had reduced overall violence, and was 84 percent in substantial compliance with the special master's requests in the Farrell lawsuit. The evidence showed that the DJJ offered counseling and a number of programs that might benefit appellant, including, among others, Project IMPACT, the fatherhood program and the counterpoint program. Appellant's particular needs would be assessed upon intake and an individual treatment plan determined. He would be held accountable for his behavior over an extended period, which could facilitate rehabilitation. In addition to the counseling and various specialized programs, the DJJ also had educational, vocational, and recreational opportunities. Sufficient evidence supported the court's finding of probable benefit.

Disposition

The order committing appellant to the DJJ is affirmed.

WE CONCUR: RUSHING, P. J., PREMO, J.


Summaries of

In re N. N.

California Court of Appeals, Sixth District
Feb 17, 2011
No. H035310 (Cal. Ct. App. Feb. 17, 2011)
Case details for

In re N. N.

Case Details

Full title:In re N. N., a Person Coming Under the Juvenile Court Law. THE PEOPLE…

Court:California Court of Appeals, Sixth District

Date published: Feb 17, 2011

Citations

No. H035310 (Cal. Ct. App. Feb. 17, 2011)