Opinion
C039956.
7-3-2003
In re S. G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. S.G., Defendant and Appellant.
On May 22, 2001, a petition was filed charging the minor, S. G., with carjacking (Pen. Code, § 215 — count I), kidnapping for the purpose of robbery (Pen. Code, § 209, subd. (b)(1) — count II), and attempted carjacking (Pen. Code, §§ 664, 215 — count III). Following an admission by the minor of attempted carjacking (Pen. Code, §§ 664, 215 — count III), she was adjudged a ward of the juvenile court and committed to the California Youth Authority (CYA).
Counts I and II of the petition were dismissed.
On appeal, the minor contends the commitment was an abuse of discretion because the evidence failed to show that less restrictive alternatives were inappropriate and that she would be benefited by the commitment. We disagree.
DISCUSSION
The facts before the juvenile court at the time of the dispositional hearing were as follows:
On March 27, 2000, a petition was filed charging the minor with the attempted robbery of Zia Amna (count I) and theft from J.C. Penneys (count II). On April 18 the petition was dismissed at the request of the prosecution for insufficient evidence. As to this petition, the probation officers report disclosed that during the early evening hours of March 23, 2000, Zia Amna was sitting in her car in the Florin Mall when the minor, accompanied by J. G., approached her and asked for money to make a telephone call. As Amna was looking in her purse, J. G. grabbed the purse and the minor ran. During a struggle over the purse, J. G. struck Amna in the face with her fist and then ran off.
No information was related in the probation officers report regarding count II, the theft at J.C. Penneys.
Regarding counts I and II of the present petition, which were dismissed, the probation officers report disclosed that during the early evening hours of May 12, 2001, Qui Chen was in the parking lot of the Arden Fair Mall opening her car door when she was approached by the minor, J. G. and T. E. One girl grabbed Chens keys, another covered Chens eyes and mouth, and the minor pulled Chens hair and struck her five or six times. The keys were "ripped" from Chens hand and she was forced into the car and driven along the freeway a short distance. She then was ordered out of the car on the threat of being "hit." Chen discovered that $ 54 had been taken from her purse.
As to count III of the present petition, which the minor admitted, the probation officers report disclosed that during the afternoon of May 18, 2001, Melanie Eclarinal had gotten into her car at the Arden Fair Mall when she was approached by the minor, J. G. and T. E. T. E. asked Eclarinal for a ride and when Eclarinal refused saying she had an errand to run, T. E. ordered Eclarinal to "Give me your keys." Eclarinal refused and told the girls to leave her alone. The minor then demanded the keys, and Eclarinal again refused to give them up. Seeing that Eclarinal had her hand on the alarm button, the minor said, "Why is your thumb on the alarm? Dont you know who I am? I will smash you." At the approach of a security officer, the girls fled but were apprehended shortly thereafter.
Regarding the minors education, she was attending continuation school where her grade point average was 1.39; she had completed just 51 credits out of 225 needed to graduate; and she had been suspended on two occasions — for being disrespectful to the vice-principal and breaking a classroom window.
At the disposition hearing, Dr. Jeffrey Miller, a psychologist who had evaluated the minor, testified that the minor was of average intelligence; that she had a generalized anxiety disorder but no significant antisocial attitudes or traits; that she was easily subjected to peer influence; and her participation in the charged offenses was the result of such influence.
Although Dr. Miller was aware that the minor had a previously dismissed petition, he was unaware of the details and continued to believe that the minors recent offenses were isolated rather than extended criminal behavior. And even though the minor told Dr. Miller that she had struck Chen four or five times, his assessment was that she was not generally prone to violent behavior. Additionally, the minor had expressed remorse for the victims of her assaults and recognized that her behavior was wrongful.
Dr. Miller concluded that the minor was open to behavioral change and that this could be achieved in a residential facility.
According to the probation officers report, the minor had not been a behavioral problem in juvenile hall. The minor, J. G. and T. E. had been accepted into the Excelsior program; however, because the three were accomplices of each other Excelsior would accept only one of the girls, and it had not yet been determined which girl would be selected. The probation officer recommended a CYA commitment because of the seriousness of the offenses and the minors apparent dangerousness.
DISCUSSION
The minor urges that the court abused its discretion in making the CYA commitment because the evidence failed to show that less restrictive alternatives were not appropriate and that she would be benefited by the commitment. We disagree.
To justify a CYA commitment, there must be evidence in the record demonstrating probable benefit to the minor and evidence supporting a determination that less restrictive alternatives are ineffective or inappropriate. (In re Teofilio A. (1989) 210 Cal. App. 3d 571, 576, 258 Cal. Rptr. 540.) Indeed, Welfare and Institutions Code section 734 precludes a CYA commitment unless the court is fully satisfied that the minor will benefit from the commitment. A CYA commitment will be reversed only upon a showing that the court abused its discretion in making the commitment. (In re Michael D. (1987) 188 Cal. App. 3d 1392, 1395, 234 Cal. Rptr. 103.)
In full, Welfare and Institutions Code section 734 states: "No ward of the juvenile court shall be committed to the Youth Authority unless the judge of the court is fully satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he [or she] will be benefited by the reformatory education discipline or other treatment provided by the Youth Authority."
The minor claims the court failed to consider alternatives less restrictive than CYA because it improperly weighed the petition dismissed on April 18, 2000, in finding CYA the appropriate disposition. That weighing, according to the minor, is shown by the following comment by the court: "And I will say that the prior Florin Mall incident [the dismissed petition] is a key factor in sort of tipping the balance here." The minor argues that, "this determinative use of that incident" was error because the incident had been dismissed for insufficiency of the evidence and, therefore, "at most it showed only an association by [her] with [J.] G."
Contrary to the minors argument, the Florin Mall incident shows more than a mere association with J. G. First, as the minor acknowledges, it is appropriate for the juvenile court to consider dismissed charges in determining the proper disposition for a minor. (In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1681.) Second, prior to making the comment relied upon by the minor, the court stated: "When we initially had discussions about this case, I was not aware of the March 2000 incident. I only became aware of that after I began to prepare for the dispositional hearing. And what troubles me about that is that — its true that she was not charged; that was dismissed. And it also appears that she was not active — she was more of a passive participant in that offense. But Im greatly disturbed by the fact that those circumstances bear a striking similarity to the circumstances that occurred at Arden Mall. [P] Apparently she was there with [J. G.] in a shopping mall parking lot, and a woman is approached and asked for money, and then a robbery takes place. And then at Arden Mall, months later, shes with [J. G.], and a more serious offense occurs. [P] And as to the offense concerning Miss [Chen], the level of violence involved there is — is terrible. Its true there were no permanent injuries. But the hostility, the anger, the disregard for the victims well being . . . this is on the high side of acts by female offenders, and thats very troubling as well. [P] When you put together the fact that she was at least present in the Florin Mall incident, and then these two incidents take place at Arden Mall six days apart, one with a significant degree of violence, although not according to the psychologist, it certainly strikes me that this comes close to behavior that I have seen psychologists describe as sociopathic, because there seems to be no impulse control, if thats the problem. There seems to be no ability to make the right choice here. [P] And the reason that concerns me is that it leaves me not with a strong degree of confidence, that if she were someplace where there were not stringent controls, if she were not locked up, that she would go out and commit similar kinds of offenses. My concern is that she is a risk to people and property, and I think that thats really the bottom line here as Ive pondered this case." The court then followed its analysis with the sentence at issue, "And I will say that that prior Florin Mall incident is a key factor in sort of tipping the balance here."
We agree with the juvenile courts reasoning. In both of the Arden Fair Mall incidents, the minor was with J. G. when they either robbed or tried to rob a lone female either at or in her car. In the Florin Mall incident, the minor was again with J. G. and approached a lone women as she got into her car, asking for money. When the woman opened her purse, J. G. attempted to snatch it and the minor ran. The similarities between the offenses make it reasonably inferable, as the juvenile court found, that the minor was not just associated with J. G., but she was involved in the attempted robbery with J. G. Consequently, there was no error in the finding that the Florin Mall incident tipped the balance in favor of a CYA commitment.
The minor argues the evidence in the record fails to support a determination that less restrictive alternatives were considered. In making this argument, the minor relies heavily on Dr. Millers testimony that because of the minors susceptibility to peer pressure her best chance at rehabilitation was a residential placement, rather than a more restrictive setting wherein she would come under the influence of more delinquently-oriented youths. The minor further claims that given that she was subject to exclusion from the Excelsior program only because of her accomplice status, the court should have considered, but did not, other programs that were equivalent to that of Excelsior. The minor misreads the record.
First, the juvenile court rejected Dr. Millers recommendation of a residential placement for the very practical reason that delinquently-oriented youths were in all levels of placement and the court could not "fashion any kind of a disposition that would serve to keep [the minor] away from [such] delinquently-oriented peers." However, the courts primary concern was "that if [the minor] were someplace where there were not stringent controls, if she were not locked up, that she would go out and commit similar kinds of offenses. My concern is that she is a risk to people and property . . . ." Thus, the courts reasoning shows that it considered alternatives less restrictive than CYA, but found such placements inappropriate because the minor constituted a danger to persons and property.
The minor also claims the record fails to show that she would benefit from a CYA commitment. This is simply not so. In addition to being prone to the commission of violent criminal acts, the minor was also failing in school (she had a 1.39 gpa, with only 51 credits out of 225 needed for graduation) and she had been expelled twice. The CYA commitment will not only address both of these concerns with its behavior modification and education programs, but has the added benefit that, in the interim, it will protect society from the minor.
DISPOSITION
The judgment (order committing the minor to CYA) is affirmed.
We concur: SCOTLAND, P. J., and RAYE, J.