Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J04-02192
Sepulveda, J.
Defendant Thomas P. appeals from a dispositional order committing him to the Department of Juvenile Justice (DJJ) for a maximum confinement of six years and two months for three separate offenses: robbery and two batteries. (Pen. Code, §§ 211, 212.5, subd. (c), 242, 243, subds. (a), (d); Welf. & Inst. Code, § 602.) Defendant contends that the juvenile court (1) erred in declining to take judicial notice of documents relating to a court decree identifying problems at DJJ; and (2) abused its discretion in committing him to DJJ because the commitment will not benefit him. We reject the contentions and affirm the juvenile court order.
I. FACTS
Defendant admitted committing three separate criminal offenses.
A. Battery causing serious bodily injury, October 2004
On October 24, 2004, when defendant was 16 years old, he broke another boy’s jaw. The victim told the police that he was riding his skateboard past a group of boys when one of them stuck out his arm and hit the victim in the chest. The victim stopped and confronted the group, which included defendant. Suddenly, defendant punched the victim in the jaw, breaking it in two places. The victim suffered considerable pain, and his jaw was wired shut for several weeks.
B. Robbery, April 2006
On April 24, 2006, when defendant was almost 18 years old, defendant robbed a man at gunpoint. The victim passed a group of three people when one of them asked the victim if he wanted to buy cocaine. The victim said no and kept walking. A few moments later, another person from the group (later identified as defendant) caught up with the victim and asked him for a pack of cigarettes. Feeling threatened, the victim gave defendant a pack of cigarettes and started to walk away. Defendant then said “give me your money mother fucker” and pointed a gun at the victim’s forehead. The gun appeared to be a semi-automatic pistol. The victim gave defendant all the money he had in his wallet ($16) but defendant wanted more, demanding “let me see your pockets.” The victim turned his pockets inside out so defendant could see they were empty. Defendant then turned and fled on foot.
C. Battery, April 2006
A few days after the robbery, on April 28, 2006, defendant used a BB gun to shoot a man in a wheelchair. The victim was going to a store when defendant confronted him with a rifle. Defendant pointed the rifle at the victim and said, “You owe me five dollars.” The victim said, “I don’t owe you shit.” Defendant replied, “I’m going to shoot you,” and started laughing. The victim started to roll away in his wheelchair when he heard a popping sound. When the victim arrived at the store, the store clerk saw that the victim was bleeding. The victim left the store to get help but, as he passed the area where defendant shot him, the victim was again confronted by defendant. Defendant pointed the gun at the victim, and the victim pleaded: “Don’t do that to me again, man!” Defendant laughed and shot the victim a second time. The victim was later taken to a hospital emergency room, where a doctor determined that the victim had been shot with a BB gun. A BB pellet was found embedded in the victim’s head, just behind his ear.
D. Juvenile court action
When defendant first appeared in juvenile court for the 2004 battery, the court granted his request for deferred entry of judgment, released him to a relative, and indicated that the charges would be dismissed if he complied with the terms of the program and tested “clean” for narcotics. (Welf. & Inst. Code, § 790 et seq.) Defendant did not comply. Defendant tested positive for marijuana on several occasions and was suspended from school for multiple disciplinary referrals, including the theft of a teacher’s wallet.
In May 2005, the court lifted the deferred entry of judgment and placed defendant at the Orin Allen Youth Rehabilitation Facility (OAYRF) for 270 days. His stay was extended 30 days after he engaged in a physical fight with another ward. Upon his release from OAYRF, Defendant committed the robbery and battery offenses of 2006.
E. Dispositional hearing
On January 29 and February 1, 2007, the juvenile court conducted a contested dispositional hearing. At the start of the hearing, defendant’s attorney served the People with a written request for judicial notice. Defendant asked the juvenile court to judicially notice documents relating to Farrell v. Allen (2004, No. RG03079344) (Farrell), a taxpayer lawsuit against the director of the California Youth Authority, now DJJ. A consent decree entered in Farrell obligates the director to develop remedial plans to correct identified deficiencies at DJJ. Defendant submitted over 200 pages of documents for judicial notice, including (1) the Farrell consent decree of November 2004; (2) the December 2003 expert report commissioned by the Farrell parties on mental health and substance abuse services at DJJ; (3) the Farrell special master’s first report on compliance with the consent decree, dated March 2006; (4) the DJJ’s July 2006 safety and welfare remedial plan required by the Farrell consent decree; and (5) the Farrell special master’s third report on compliance with the consent decree, covering the period September/November 2006.
The People objected on grounds of hearsay, relevance, and “foundational issues,” and asked for additional time to review the documents if the court wanted further argument on whether to grant judicial notice. The People also argued that judicial notice was permissive, not mandatory, and urged the court to decline judicial notice. Defendant’s counsel replied that he made two previous oral requests for judicial notice of Farrell documents, which the court said it would deny, and counsel was “just making [his] record” by filing a written request with the documents at the hearing. The court remarked that it had previously told defense counsel that the court could take judicial notice of the Farrell decree alone, and indicated that it would take notice of the fact that there was a decree. However, the court later reviewed the submitted documents and declined to take notice of the Farrell decree because defense counsel did not submit a complete copy of the decree with the file date. The court thus declined judicial notice of all Farrell documents.
The dispositional hearing continued with consideration of a written report by defendant’s probation officer, and the probation officer’s testimony. In his report, the probation officer observed that “[t]he minor has been a ward of the juvenile court for approximately 11/2 years, and despite continued efforts by the court and probation to deter him from further delinquent behavior, he is continuing to commit serious law violations, evidencing that intensive rehabilitative intervention is still warranted in this case.”
The probation report continued: “it is probation’s opinion that an appropriate corrective course of action at this time would be to commit the minor to the California Youth Authority (CYA). [¶] While at CYA, the minor will be in a structured and disciplined environment, where the values of accountability and personal responsibility are constantly being reinforced. He will also be isolated from the community for a significant amount of time (at least 18 months), thereby safeguarding the community from his violent tendencies while affording him the much needed punitive and rehabilitative intervention. From a more therapeutic perspective, the minor will receive counseling on a weekly basis, and he will be required to complete programs covering the topics of the impact of crime on victims, anger management, and substance abuse. He will also earn a high school diploma or GED, learn independent living skills, and receive vocational training, all of which will be extremely beneficial to him when he returns to the community, as he will be almost 20 years old and seeking employment.”
Three less restrictive facilities rejected defendant, finding him an unsuitable candidate for placement in their programs. Crystal Creek, Bar-O Ranch, and Fouts Springs concluded that defendant’s age (then 18 1/2 years old) and violent crimes made him ineligible. At the dispositional hearing, the probation officer maintained his recommendation of a DJJ commitment under lengthy cross-examination by defense counsel.
The juvenile court committed defendant to DJJ. In arriving at a disposition, the judge remarked that she has been a judge for 13 years, and was familiar with DJJ and alternative facilities throughout the state. The judge said she toured DJJ four times and was convinced that it had programs that would benefit defendant. She also noted that defendant failed to reform with less restrictive placements, and that defendant’s delinquent behavior has escalated to a level of crime that is “serious,” “grave and chilling.”
II. DISCUSSION
Defendant claims the juvenile court erred in declining to take judicial notice of the Farrell documents identifying problems at DJJ and abused its discretion in committing him to DJJ. The claims are meritless.
A. Judicial notice
Defendant argues that the Farrell documents should have been judicially noticed as records of the court. (Evid. Code, §§ 452, subd. (d), 453.) Defendant asked the juvenile court, and now asks this court, to take judicial notice of (1) the Farrell consent decree of November 2004; (2) the December 2003 expert report commissioned by the Farrell parties on mental health and substance abuse services at DJJ; (3) the Farrell special master’s first report on compliance with the consent decree, dated March 2006; (4) the DJJ’s July 2006 safety and welfare remedial plan required by the Farrell consent decree; and (5) the Farrell special master’s third report on compliance with the consent decree, covering the period September/November 2006.
The juvenile court properly denied judicial notice for a number of reasons and we, for the same reasons, deny judicial notice on appeal.
First, not all the Farrell documents are court records. The December 2003 expert report on mental health and substance abuse services at DJJ shows no indication of being a court record—it bears no court endorsed file date, nor a proof of service.
Second, judicial notice of court records is wholly permissive absent sufficient notice of the request for judicial notice to adverse parties and provision of sufficient information to the court. (Evid. Code, §§ 452, subd. (d), 453.) Notice was an issue in the juvenile court, where defense counsel served the People with over 200 pages of documents to be judicially noticed at the dispositional hearing, without advance service of the materials. Also, the Farrell decree is an incomplete copy, with at least the first page missing.
Third, while the existence of any document in a court file may be judicially noticed, the truth of the matters asserted in those documents is not necessarily entitled to notice. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1562-1569.) “ ‘There exists a mistaken notion that [taking judicial notice of court records] means taking judicial notice of the existence of facts asserted in every document of a court file, including pleadings and affidavits. However, a court cannot take judicial notice of hearsay allegations as being true, just because they are part of a court record or file.’ ” (Id. at p. 1564, italics omitted.) Some courts have questioned whether it is even proper to take judicial notice of the truth of facts asserted in orders and judgments. (Id. at pp. 1564-1569.) Notice of the Farrell documents, then, does not mean wholesale acceptance of the various factual assertions in those documents about problems at DJJ.
Fourth, “only relevant material may be noticed.” (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, italics in original, overruled on another ground In Re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276). Judicial notice “ ‘is always confined to those matters which are relevant to the issue at hand.’ ” (Mangini, supra, at p. 1063.) The Farrell documents are most concerned with conditions at DJJ in 2003 and surrounding years, and are thus irrelevant to the proper placement of defendant in February 2007, after remedial efforts were underway. There is one current document submitted for judicial notice and that is the Farrell special master’s third report on compliance with the consent decree, covering the period September/November 2006. But this document is irrelevant to proving deficient conditions at DJJ, even were we to accept the truth of its factual assertions. The report notes that “DJJ has substantially discharged its responsibility under the Consent Decree to file remedial plans covering all six areas of deficiencies identified by the parties’ jointly selected experts in 2003.” While the special master noted the persistence of certain problems at DJJ, she also observed that DJJ “has taken significant steps” toward various improvements.
In any case, any error in not taking judicial notice of the Farrell documents is harmless. The highly publicized lawsuit against DJJ, and the content of the reports, are familiar to all judges in the region. The juvenile court judge here is highly experienced, and indicated her personal familiarity with the Farrell consent decree and the operations of DJJ. Judicial notice is unnecessary to an appreciation of DJJ’s past difficulties and ongoing remedial efforts.
B. Commitment to DJJ
Defendant argues that the juvenile court erred in committing him to DJJ because there is insufficient evidence of probable benefit from the placement. (Welf. & Inst. Code, § 734.) The juvenile court’s decision to commit a minor to DJJ “will be reversed only when an abuse of discretion has been shown.” (In re George M. (1993) 14 Cal.App.4th 376, 379.) “An appellate court will not lightly substitute its decision for that rendered by the juvenile court. We must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them.” (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.)
There is overwhelming evidence to support defendant’s DJJ commitment. Defendant is correct in noting that a juvenile court may not commit a minor to DJJ “unless the judge of the court is fully satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefitted by the reformatory educational discipline or other treatment provided” at the facility. (Welf. & Inst. Code, § 734.) The juvenile court found that defendant will be benefitted by DJJ, and that finding is supported by the record.
As the probation officer explained, defendant will receive weekly counseling and instruction on the impact of crime on victims, anger management, and substance abuse. He will also earn a high school diploma or GED, learn independent living skills, and receive vocational training. Defendant asserts that this evidence of probable benefit is too general, and complains that there is no evidence that his particularized needs for special education and mental health services will be met. These identified needs relate to reports that defendant has a learning disability and functions at an eighth grade level, and suffers depression. Despite defendant’s claim of a lack of evidence on the point, the probation officer testified that he considered defendant’s particular needs and that DJJ has special educational and mental health services that will meet those needs. Defendant’s educational and mental health problems are not uncommon among wards committed to DJJ, which is fully capable of addressing them.
Moreover, probable benefit to the minor is not the sole consideration at a dispositional hearing. The juvenile court must consider not only the best interests of the minor (Welf. & Inst. Code, § 734), but also public protection and personal accountability of the minor. (Welf. & Inst. Code, § 202, subds. (a), (b); In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684-1685.) The circumstances and gravity of the offenses perpetrated by the minor are relevant considerations. (Welf. & Inst. Code, § 725.5.) Defendant’s offenses, as the juvenile court noted, are “grave and chilling.” The juvenile court reasonably concluded that defendant, and the public, will benefit from placing defendant in a locked facility where defendant has an opportunity for rehabilitation while protecting the community from further acts of cruel violence.
III. DISPOSITION
The order is affirmed.
We concur: Ruvolo, P. J., Rivera, J.