Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. C-191094-05
Reardon, J.
After appellant S.F. admitted that he committed an assault with a deadly weapon, the juvenile court adjudicated him to be a ward of that court. He was committed to the Division of Juvenile Facilities (DJF) (formerly the California Youth Authority (CYA)). His petition for rehearing was denied. S.F. appeals, contending that the juvenile court erred by ordering this commitment and by denying his petition for rehearing. We affirm the commitment order and the order denying rehearing.
S.F.’s July 27, 2007 notice of appeal from “dispositional orders” purportedly entered on May 23, 2007—more than 60 days after the purported disposition order—suggests that the appeal might be untimely. (See Cal. Rules of Court, rule 8.104.) However, the May 23, 2007 minute order satisfies us that the dispositional aspect of the juvenile court proceeding was not completed on that date, but was in fact continued to the following month. The first evidence that S.F. was actually committed to the former CYA does not occur until a minute order issued memorializing the June 21, 2007 hearing. A formal order for commitment to the former CYA was filed on June 22, 2007. On June 27, 2007, the minor filed a petition for rehearing challenging the disposition that—according to that petition—was made on June 21, 2007. The petition for rehearing was denied on July 10, 2007. Given the actual June 2007 date of commitment as reflected in the record on appeal, we are satisfied that the July 2007 notice of appeal was timely.
I. FACTS
Appellant S.F. was born in August 1990. He was borderline mentally retarded. In September 2004—when he was 14 years old—he was detained after admitting that he stabbed a man in the back with a pair of scissors. A petition was filed alleging that S.F. should be declared a ward of the court because of this assault with a deadly weapon. (See former Pen. Code, § 245, subd. (a)(1) [as amended by Stats. 1999, ch. 129, § 1]; Welf. & Inst. Code, § 602.) The juvenile court approved his detention. S.F. admitted committing a felony battery that inflicted serious bodily injury. (See Pen. Code, § 243, subd. (d).) In October 2004, he was adjudged to be a ward of the juvenile court and released to his father’s custody, subject to standard conditions of probation.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
In December 2004, S.F.’s father died. The minor continued to live with his mother. In April 2005, S.F. was involved in a fight with another student at school, causing the student to break his arm. In May 2005, S.F. tested positive for marijuana, but his drug tests over the next three months were negative. In August 2005, he paid a $100 fine as ordered by the juvenile court. In September 2005, on the recommendation of his probation officer, the juvenile court dismissed S.F.’s wardship and terminated his probation.
In October 2005, a reopened wardship petition was filed, alleging that S.F. had committed robbery. (See Pen. Code, § 211; § 602.) He was detained at juvenile hall. In November 2005, he admitted committing felony grand theft. (See Pen. Code, § 487, subd. (c).) After three weeks, S.F. was released from juvenile hall on home supervision under the control of his mother.
In December 2005, a subsequent petition was filed alleging that S.F. had stolen a vehicle and resisted arrest. (See Pen. Code, § 148, subd. (a); Veh. Code, § 10851; § 602.) After the two allegations were reduced from felonies to misdemeanors, S.F. admitted them. The juvenile court placed S.F. on home supervision, subject to certain conditions. In January 2006, S.F. admitted that he used marijuana in violation of the conditions of his home placement. The order for home supervision was vacated and S.F. was returned to juvenile hall.
By early February 2006, S.F. was again released to his mother’s custody on home supervision. Within a few days, S.F. was missing from that home overnight. When he returned home under the influence of alcohol the next morning, he was arrested for violating the terms of his home supervision. A supplemental petition was filed alleging that he had violated the terms of his home supervision. (See § 777, subd. (a).) S.F. admitted this allegation was true. In March 2006, he was placed in a residential drug treatment program. In August 2006, S.F. was involved in a violent incident that prompted him to be returned to juvenile court for a change of placement. En route to court, he escaped. He turned himself in a week later.
In September 2006, the juvenile court returned S.F. to juvenile hall. He was placed in another group home. In late January 2007, S.F. was returned to his mother’s custody on home supervision.
In May 2007, S.F. was detained and another subsequent petition was filed alleging that he had committed attempted robbery and two assaults with a deadly weapon, and had inflicted great bodily injury. (See Pen. Code, §§ 211, 245, subd. (a)(1), 664, 12022.7.) S.F. admitted a single count of assault with a knife. S.F., his counsel and the prosecutor stipulated in writing that the juvenile court commissioner could sit as a temporary judge to try the matter. The temporary judge found that S.F. had committed an assault with a knife. The other allegations were dismissed on the People’s motion. In June 2007, the temporary judge committed S.F. to the DJF for a maximum term of confinement of four years. S.F.’s petition for rehearing of the disposition order was denied by a judge of the juvenile court in July 2007.
II. REHEARING
First, S.F. contends that the juvenile court erred by denying his petition for rehearing. When the juvenile court made its ruling, it found inter alia that the order committing S.F. to the DJF was made by a juvenile court commissioner sitting as a temporary judge by stipulation of the parties. The juvenile court concluded that the temporary judge’s order was a final order not subject to rehearing before another trial judge. (See § 250.)
Alternatively, the juvenile court ruled on the merits of the commitment order, finding that it was proper.
Juvenile court referees are subordinate judicial officers who sit with limited powers. (Cal. Const., art. VI, § 22; In re Mark L. (1983) 34 Cal.3d 171, 176.) Their findings are subject to rehearing by a juvenile court judge. (§ 252; In re Mark L., supra, 34 Cal.3d at p. 176.) However, parties can stipulate to confer the full judicial powers of a temporary judge on a commissioner or referee. (Cal. Const., art. VI, § 21; § 250; In re Perrone C. (1979) 26 Cal.3d 49, 57 [jurisdiction hearing]; see Cal. Rules of Court, rules 2.831(a), 5.536(b); In re Mark L., supra, 34 Cal.3d at pp. 176-178 [disposition hearing].) The rulings of a temporary judge are as final and nonreviewable as those issued by a permanent judge. (§ 250; In re Mark L., supra, 34 Cal.3d at p. 178.)
On appeal, S.F. does not argue that the juvenile court was incorrect about its view of the commissioner’s status and its lack of jurisdiction to reconsider the ruling of a temporary judge. He does not contend that he or his trial counsel was coerced into entering into the stipulation allowing the commissioner to sit with the full powers of a temporary judge. Instead, he contends that the juvenile court bench of this county’s juvenile court obtains stipulations allowing commissioners to sit as temporary judges in juvenile matters in order to systematically avoid affording juveniles their statutory right to a rehearing of a commissioner’s ruling by a sitting trial judge. S.F. did not raise this issue in the juvenile court when he sought rehearing. By failing to raise this issue at that time, S.F. is now barred from raising it on appeal. (See In re Kevin S. (1996) 41 Cal.App.4th 882, 885-886 [dependency matter]; In re Richard H. (1991) 234 Cal.App.3d 1351, 1361-1362 [same]; see also Evid. Code, § 353, subd. (a).) We find that the juvenile court properly denied the petition for rehearing because the commissioner was sitting as a temporary judge at the time of disposition.
S.F.’s counsel stated that she and S.F. entered into the stipulation allowing the commissioner to sit as a temporary judge before a contested jurisdiction hearing, which was abbreviated after the minor admitted the truth of one of the charges. He did not argue that the stipulation was only meant to apply to the jurisdiction hearing and not the subsequent disposition hearing. Even if he had done so, the stipulation is not so limited and instead purports to apply until the “final determination” of the juvenile court matter.
In light of this conclusion, we need not reach S.F.’s alternative issue about the proper standard to be applied when a juvenile court judge reviews a commissioner’s juvenile court disposition order.
III. DISPOSITION
A. Standard of Review
No ward of the juvenile court may be committed to the DJF unless the judge is fully satisfied that the mental and physical condition and qualifications of the ward render it probable that he or she will benefit from the reformatory educational discipline or other treatment provided at the DJF. (§ 734; In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684; see §§ 736, subd. (a), 1731.5, subd. (b) [DJF acceptance based on that probability].) S.F. challenges the disposition order, contending that there was no evidence that he—a mentally retarded minor—would benefit from the DJF commitment or that no less restrictive appropriate placement was available.
Typically, we may only reverse a juvenile commitment order on appeal if the juvenile court abused its discretion. We must indulge all reasonable inferences in support of the juvenile court order and will not disturb its underlying findings if there is substantial evidence to support them. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330; see In re Carl N. (2008) 160 Cal.App.4th 423, 431-432; In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) We have no power to substitute our judgment of the most appropriate placement for that made by the juvenile court unless its decision was a clear abuse of discretion. (In re Khamphouy S. (1993) 12 Cal.App.4th 1130, 1135; see In re Emmanuel R. (2001) 94 Cal.App.4th 452, 465; see also In re Carl N., supra, 160 Cal.App.4th at p. 432.)
At disposition, the juvenile court is charged to act in a manner consistent with the legislative purposes of the juvenile court law. (In re Robert H., supra, 96 Cal.App.4th at p. 1330.) The purposes of the juvenile court law are twofold: to serve the best interest of the delinquent ward by providing care, treatment and guidance to rehabilitate the ward and enable him or her to be a law-abiding and productive member of his or her family and community; and to provide for public protection and safety. (In re Schmidt (2006) 143 Cal.App.4th 694, 716; see § 202, subds. (a), (b), (d); In re Carl N., supra, 160 Cal.App.4th at pp. 432-434; In re Jimmy P., supra, 50 Cal.App.4th at p. 1684.) Although the purpose of juvenile court law also emphasizes public protection, there must still be some evidence demonstrating a probable benefit to the minor from a DJF commitment and the inappropriateness or ineffectiveness of less restrictive alternatives. (In re Angela M., supra, 111 Cal.App.4th at p. 1396; see In re Carl N., supra, 160 Cal.App.4th at p. 433.) On appeal from a disposition order, we assess whether the juvenile court acted in conformity with these goals. (See In re Carl N., supra, 160 Cal.App.4th at p. 432; In re Robert H., supra, 96 Cal.App.4th at p. 1330.)
The purpose of the juvenile court law is to provide for the protection and safety of the public and of each minor who comes within the jurisdiction of the juvenile court. (§ 202, subd. (a).) Minors under juvenile court jurisdiction as a consequence of their delinquent conduct must—in conformity with the interests of public safety and protection—receive care, treatment and guidance that is consistent with their best interests; 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 the juvenile court law, including commitment to the DJF. (§ 202, subds. (b), (e)(5).) Juvenile courts are charged to consider public safety and protection, the importance of redressing injuries to victims, and the best interests of the minor in all their deliberations. (§ 202, subd. (d).)
S.F. was identified as borderline mentally disabled. As such, he would have us presume that a DJF commitment would not be beneficial or appropriate for him because he asserts that no services are offered for mentally retarded minors. He argues that a commitment to a mental health placement must be presumed to have been preferable for him.
In support of this claim, S.F. cites a case in which the California Supreme Court stated that the CYA—the predecessor of the current DJF—had no programs for mentally retarded minors. (See In re Aline D. (1975) 14 Cal.3d 557, 565.) In the 30 years since that case was decided, these circumstances have changed. Now, services are offered to committed minors with special educational needs with a DJF setting. We also note that the DJF must accept a person committed to it if its representatives believe that the person can be materially benefited by its reformatory and educational discipline and if it has adequate facilities to provide that care. (§§ 736, subd. (a), 1731.5, subd. (b).) Thus, it appears that the DJF is required to reject S.F. if its representatives believed that it could not provide adequate care for him. As such, we will apply the usual abuse of discretion standard of review when evaluating the challenged commitment order.
For the limited purpose of assessing the claim that the DJF does not currently offer programs to address S.F.’s special educational needs, we grant his request for judicial notice of exhibits B, D and E. The request for judicial notice of exhibits A, C and F is denied.
B. Propriety of DJF Commitment
The juvenile court made a specific finding that S.F.’s mental and physical condition and qualifications were such that would render it probable that he would benefit from the reformatory educational discipline and other programs provided by the DJF. (See § 734.) S.F. challenges the commitment order, arguing that there was no evidence at all to support this finding and no evidence of the inappropriateness or ineffectiveness of less restrictive alternatives. We disagree on both grounds.
In making a disposition order, the juvenile court should consider all relevant and material evidence, including the age of the minor; the circumstances and gravity of the offense committed by the minor; and his or her previous delinquent history. (§ 725.5; see In re Robert H., supra, 96 Cal.App.4th at p. 1329 [current offense]; In re Jimmy P., supra, 50 Cal.App.4th at p. 1684 [past performance as ward].) As the juvenile court acknowledged, the record on appeal almost compels a DJF commitment. The commissioner who sat as temporary judge at disposition was very knowledgeable about S.F., having presided over most of the proceedings involving this minor. S.F. was almost 17 years old by the time of disposition. He had a history of violent criminal acts, most recently an assault with a knife. His record reflects his impulse control issues and his use of his size to intimidate others. His violent offenses were often prompted by anger on S.F.’s part and anger management was identified early in this matter as an issue for him to resolve. The juvenile court found that he needed anger management classes to counter these violent tendencies.
The record also shows that S.F. used drugs and alcohol. The juvenile court noted that drug treatment was required. He had been in other less restrictive placements before—he performed poorly in them, escaped from one, and demonstrated no lasting benefit from them, as he committed a violent assault soon after his latest release. Although S.F. was mildly retarded, he was being educated at the 9th grade level. There are programs available at the DJF for minors who grapple with similar educational challenges. (See pt. III.A., ante.) Considered as a whole, this evidence satisfies us that it is probable that S.F. will benefit from the commitment and that a less restrictive alternative would not have been effective for him. (See, e.g., In re Angela M., supra, 111 Cal.App.4th at p. 1397.)
C. Other Issues
S.F. also faults the juvenile court in two other respects. He contends that the juvenile court ignored the recommendations of the probation department for yet another residential treatment placement. We disagree with S.F.’s assessment of the juvenile court’s actions. It did not ignore the probation department recommendation—instead, it chose not to follow that recommendation, noting that earlier placements of a similar nature had not curbed S.F.’s delinquent tendencies. A juvenile court is not required to accept a probation department recommendation, but may reject it completely. (See People v. Warner (1978) 20 Cal.3d 678, 683 [criminal sentencing].)
S.F.’s trial counsel argued in favor of placement at camp, which the trial court rejected because it believed that a camp would not accept a minor who had committed an offense involving the use of a knife.
Finally, S.F. contends that the juvenile court erred by preventing trial counsel from obtaining evaluations necessary to an informed disposition. This possibility was not mentioned at disposition, but only arose obliquely at the hearing on the petition for rehearing. The disposition hearing judge cannot be faulted for failing to undertake an evaluation that was not suggested to him. As the judge at the rehearing stage properly concluded that the commissioner who entered the commitment order did so while acting as a temporary judge, the rehearing judge had no authority to grant the request for a rehearing on any ground. (See pt. II., ante.) S.F.’s request for evaluation was untimely.
In these circumstances, we find that the juvenile court’s commitment of S.F. to the DJF was not an abuse of discretion.
The commitment order and the order denying rehearing are affirmed.
We concur: Ruvolo, P.J., Sepulveda, J.