Opinion
NOT TO BE PUBLISHED
San Mateo County Super.Ct. No. 74967
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
V.S., a minor, appeals from a dispositional order committing him to juvenile hall after he admitted committing grand theft and escape from a juvenile facility. (Pen. Code, § 487, subd. (c); Welf. & Inst. Code, §§ 602, 871, subd. (a).) Appellant contends that the juvenile court abused its discretion in committing him to juvenile hall. We disagree and affirm the judgment.
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
The background facts are taken from the probation report.
Juvenile Court History
Appellant, who was born in April 1990, was first adjudged a ward of the court on January 30, 2006, based on a sustained petition for misdemeanor possession of an ice pick on school grounds (Pen. Code, § 626.10, subd. (b)). Appellant was returned to court on a section 777 probation violation notice on August 8, 2006. The violation charged appellant’s absence from school, suspension, failure to remain on home restriction, possession of a red hat, and failure to follow directions to complete class work. As a result of the sustained petition, appellant was ordered to serve 45 days of therapeutic detention.
On September 22, 2006, appellant’s probation officer was notified by the Redwood City Police Department that appellant had further violated his probation by causing a disturbance in a park. He was also in violation of his 6:00 p.m. curfew. Appellant was directed to complete 20 additional hours of public service work, which he failed to perform.
Next, appellant was committed to the Camp Glenwood residential facility (Camp Glenwood) on December 4, 2006, based on a sustained petition for misdemeanor theft (Pen. Code, § 484). According to a Redwood City Police Department report, appellant and a companion stole alcohol from a Safeway store.
Within two months’ time, appellant escaped from Camp Glenwood. On May 8, 2007, the juvenile court sustained a petition alleging misdemeanor escape from a juvenile facility (§ 871, subd. (a)). Appellant was again ordered to serve 45 days of therapeutic detention and was recommitted to Camp Glenwood.
On May 10, 2007, appellant and a companion, who were both affiliated with the Nortenostreet gang, attacked three Sureno gang members at Camp Glenwood. Appellant had punched the head and face of his victims with a closed fist. As a result, a felony assault charge (Pen. Code, § 245, subd. (a)(1)) was sustained and appellant’s maximum confinement time was set at four years and six months. He was recommitted to Camp Glenwood on August 24, 2007.
Current Charges
On September 7, 2007, appellant again left Camp Glenwood without approval. His whereabouts remained unknown until November 14, 2007, when appellant was arrested with three other suspects after they had entered a Circle K in San Joaquin County and robbed the cashier and a customer of five packs of beer and approximately $200 in cash. One of the suspects was armed with a handgun. Appellant, who is a self-admitted Norteno, and his companions were dressed all in red.
The incident that served as the basis to invoke the jurisdiction of the juvenile court occurred in San Joaquin County. The case was eventually transferred to San Mateo County, where appellant resides.
A section 602 petition was filed against appellant on November 16, 2007. It charged two counts of robbery (Pen. Code, § 211), one count of street terrorism (Pen. Code, § 186.22, subd. (a)), and that the robbery offenses were committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)). Appellant subsequently admitted an amended allegation of grand theft person (Pen. Code, § 487, subd. (c)) and the other counts were dismissed.
On January 7, 2008, yet another section 602 petition was filed, charging an escape from a juvenile facility (§ 871, subd. (a)). Appellant admitted this charge. On January 29, 2008, the juvenile court conducted a disposition hearing and ordered appellant committed to juvenile hall until his 21st birthday. The maximum period of confinement was set at five years and ten months.
DISCUSSION
Appellant first maintains the dispositional order must be reversed because there was insufficient evidence that commitment to juvenile hall would provide a probable benefit to him. “The appellate court reviews a commitment decision for abuse of discretion . . . . [Citations.]” (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396; accord In re Asean D. (1993) 14 Cal.App.4th 467, 473.) “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. [Citations.]” (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.)
We review the juvenile court’s disposition order in light of the purpose of the juvenile delinquency laws, which “[i]s twofold: (1) to serve the ‘best interests’ 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 the community,’ and (2) to ‘provide for the protection and safety of the public . . . .’ ” (In re Charles G. (2004) 115 Cal.App.4th 608, 614-615; accord § 202.) “[T]he 1984 amendments to the juvenile court law reflected an increased emphasis on punishment as a tool of rehabilitation, and a concern for the safety of the public. [Citation.]” (In re Asean D., supra, 14 Cal.App.4th at p. 473.) Accordingly, “[m]inors 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).) Commitment to juvenile hall is a permissible “punishment.” (§ 202, subd. (e)(4).)
First, we observe that both parties rely on cases involving commitments to the California Youth Authority (CYA), the most restrictive placement choice available to the juvenile court. (See In re Teofilio A. (1989) 210 Cal.App.3d 571; In re Michael D., supra, 188 Cal.App.3d 1392; In re Todd W. (1979) 96 Cal.App.3d 408; In re Michael R. (1977) 73 Cal.App.3d 327.) Although section 734 requires that the juvenile court be “fully satisfied” the minor will receive a probable benefit from commitment to the CYA, we are aware of no similar statutory requirement for commitment to juvenile hall. Nonetheless, the People do not press this point, and we thus assume that “there must be evidence in the record demonstrating both a probable benefit to the minor by a [juvenile hall] commitment and the inappropriateness or ineffectiveness of less restrictive alternatives. [Citations.]” (In re Angela M., supra, 111 Cal.App.4th at p. 1396.)
“Effective July 1, 2005, the Department of Youth Authority was renamed ‘the Department of Corrections and Rehabilitation, Division of Juvenile Facilities.’ (§ 1703, subd. (c).)” (In re Lemanuel C. (2007) 41 Cal.4th 33, 37, fn. 2.) For the sake of clarity and consistency, we refer to the CYA.
The probation report prepared for the disposition hearing recommended that appellant be detained at juvenile hall for therapeutic detention. This report stated: “Several aggravating factors warrant [appellant]’s current recommendation before the [c]ourt. [Appellant] escaped from the Camp Glenwood facility on three separate occasions, he and others induced each other to participate in the crime under supervision of Juvenile Hall staff, and robbed a cashier and a customer of cash from a convenience store. One of his companions was armed with a handgun. The fact that [appellant] has engaged in violent conduct makes him a danger to society. [Appellant]’s criminality is increasing. [Appellant] has been on probation since January 30, 2006, and his performance on probation is extremely poor. It appears at this time [appellant] has no intention and/or is unwilling to make any effort in rehabilitation. [Appellant] is in need of a long-term, more structured, aggressive-approached program.” The probation report further provided: “[Appellant] has a very hardcore outer shell. . . . [Appellant] needs a more aggressive, long-term approach in changing his behaviors. This is not a minor who can be ‘coddled or hand held’ through the system. Disturbing is [appellant]’s rapid escalation of criminal activity. Although prior to this offense, [appellant] was assessed as a low-level misdemeanor offender, he has graduated to the felony offender.” The probation report noted that appellant had twice had the opportunity to rehabilitate at Camp Glenwood, but had escaped on both occasions.
The probation report “recommends that [appellant] serve 655 days of therapeutic detention with 131 days for good behavior and 76 days credit for time served.” Although appellant complains that “the court abused its discretion in detaining [him] at juvenile hall until the age of 21,” the substance of his argument is targeted at the placement rather than the term of confinement. Any challenge to the term of his confinement has been waived. (See People v. Stanley (1995) 10 Cal.4th 764, 793 [“If [no legal argument with citation to authority] is furnished on a particular point, the court may treat it as waived, and pass it without consideration.”].)
The juvenile court judge recited his reasoning for implementing the probation department’s recommendation that appellant be committed to juvenile hall: “I’ve read the materials as I indicated, and I have thought about it quite a bit. [¶] You should be honored that the two [probation officers] are here sitting here watching this take place and being support people for you but also like a parent in a sense saying: Hey, if you touch that stove, you will burn yourself, and then you do. They want to make sure you don’t do it again. It’s not every kid that has a PO – in fact, it’s been rare the writer of the report would be here to support you in a sense. [¶] You received a number of breaks. You are lucky. And the whole point of the juvenile process is to give a kid a chance to change his ways. [¶] But on the other hand, . . . there is a concept of general deterrence, that means we use people like you as an example for other kids and other people, and specific deterrence, directed to you individually. [¶] Two flights from Camp Glenwood. Probably could have been sent to what I still call CYA earlier, but that didn’t take place. You got a break then as well. . . . If you are doing really well in the school and in here, I will reconsider or change [the order] depending on how you are doing. Because there is a point we don’t need you out there gang banging with guns and adults and what have you. We need you to get your act together. So I want you to reflect on it. [¶] I’m going to continue you a ward of the court.”
There is ample evidence that appellant will benefit from the commitment to juvenile hall. As the probation officer explained, appellant would be able to earn a G.E.D., take on-line community college courses, receive gang awareness and life skills trainings, and learn a trade at this facility. Also, the court properly considered public protection and personal accountability as factors in making its decision to place appellant, who had a long and increasingly serious record, at juvenile hall. Appellant himself stated that he preferred juvenile hall to Camp Glenwood “because the staff [at juvenile hall], like I can really talk to them. They talk to me back. They know how I feel. The programs here, becoming a man, and other programs, the staff really helped me in things that I need.” In sum, the court ordered commitment at juvenile hall because all less restrictive sanctions had proven ineffective at rehabilitating appellant and protecting the public. No abuse of discretion has been demonstrated.
An argument is presented that the dispositional order must be reversed because the court failed to make an explicit finding that removal from parental custody was necessary. Appellant relies on section 202, subdivision (a), which states: “The purpose of this chapter is to provide for the protection and safety of the public and each minor under the jurisdiction of the juvenile court and to preserve and strengthen the minor’s family ties whenever possible, removing the minor from the custody of his or her parents only when necessary for his or her welfare or for the safety and protection of the public. If removal of a minor is determined by the juvenile court to be necessary, reunification of the minor with his or her family shall be a primary objective. If the minor is removed from his or her own family, it is the purpose of this chapter to secure for the minor custody, care, and discipline as nearly as possible equivalent to that which should have been given by his or her parents. This chapter shall be liberally construed to carry out these purposes.” (Italics added; see also § 726, subd. (a).)
Section 726, subdivision (a), provides in relevant part: “[N]o ward . . . shall be taken from the physical custody of a parent or guardian, unless upon the hearing the court finds one of the following facts: [¶] (1) That the parent or guardian is incapable of providing or has failed or neglected to provide proper maintenance, training, and education for the minor. [¶] (2) That the minor has been tried on probation while in custody and has failed to reform. [¶] (3) That the welfare of the minor requires that custody be taken from the minor’s parent or guardian.” (Italics added.)
A dispositional order removing custody from a minor’s parents must contain a finding pursuant to section 726, subdivision (a); however, such a finding need not be express, so long as its substance appears in the record. (In re John S. (1978) 83 Cal.App.3d 285, 290, 292 [Section 726 “finding need not . . . be in the exact words of that section as long as the substance of such a finding appears in the record.”]; In re Willy L. (1976) 56 Cal.App.3d 256, 266 [“[s]uch requisite finding may be inferred from the transcript in lieu of entry in the minute order”].) Even assuming that such findings would have been required in this instance, given that appellant had been removed from the custody of his parents since 2006 and was being recommitted to a county facility, we conclude that the requisite findings are implicit in the record.
Appellant points out that the boxes on the minute order form that are customarily used to indicate the requisite finding were not checked and that the juvenile court never explicitly mentioned removal from parental custody at the disposition hearing. Again, appellant’s position stresses form over substance. Out reading of the transcript from the disposition hearing reveals that the court repeatedly made clear that commitment at juvenile hall, which is obviously outside parental custody, was necessary for appellant’s welfare. As an example, the court stated: “[Y]ou better figure it out before you get out of here or you are going to be on your way to state prison, and this will be a luxury hotel compared to that.” The court also commented that individuals leaving juvenile hall “have a lot more then [sic] they’ll get in state prison” and “[m]y point is to point out to you what could have happened, what might happen if you don’t get your act together.” Similar statements have been considered “in substance a finding that the welfare of the minor requires that custody be taken from his parents . . . .” (In re John S., supra, 83 Cal.App.3d at p. 293.)
Finally, appellant argues that even if the requisite finding was made, it is not supported by substantial evidence. The origin of this argument comes from the concluding sentence of the probation report: “Review of family dynamics indicates that out-of-home placement is not necessary at this time; however, further work with the family is required to prevent possible removal from the home in the future.” In light of the probation report as a whole, we are confident the above sentence appears as the result of clerical error. It conflicts with the report’s statement that “[appellant] has been incarcerated and/or on the run since his original commitment to Camp Glenwood of December 4, 2006,” its description of appellant’s numerous criminal offenses and probation violations, and its recommendation that “[appellant] serve 655 days of therapeutic detention.” Furthermore, appellant’s own counsel recognized that appellant “ha[d] earned himself a significant period of confinement,” which, in his opinion, should be served at Camp Glenwood rather than juvenile hall. Parental custody was advocated by no one.
It would be a redundant exercise, given the record before us, to remand this matter to the juvenile court for the recitation of a conclusion that has implicitly already been reached and that is amply supported by substantial evidence.
DISPOSITION
The judgment is affirmed.
We concur. SIMONS, ACTING P.J. NEEDHAM, J.