Opinion
F078511
12-27-2019
In re DANNY R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. DANNY R., Defendant and Appellant.
Arthur L. Bowie, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17CEJ600163)
OPINION
THE COURT APPEAL from orders of the Superior Court of Fresno County. Mary Dolas, Judge. Arthur L. Bowie, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Smith, J. and Meehan, J.
-ooOoo-
The court revoked appellant Danny R.'s probation (Welf. & Inst. Code, § 777) and committed him to the Juvenile Justice Center (JJC) for 90 days after appellant admitted allegations that he violated his probation. On appeal, appellant contends the court abused its discretion in doing so.
FACTS
Background
Appellant had allegations sustained in four prior petitions. Petition No. 1 resulted in appellant being adjudicated of petty theft (Pen. Code, §§ 484/488). Petition 2 resulted in him being adjudicated of two counts of second degree burglary (§ 460, subd. (b)) and possession of a deadly weapon (§ 21310). Petition No. 2A resulted in his adjudication of second degree burglary. Petition 2B resulted in appellant being adjudicated of first degree burglary (§ 460, subd. (a)). The underlying probation violation was appellant's fourth violation.
All further references are to the Penal Code, unless otherwise indicated.
On November 14, 2017, appellant was placed at Quality Group Homes. While at the home, he absconded four times, including on January 24, 2018. When he was arrested two days later, a Welfare and Institutions Code section 5150 hold was placed on him because he threatened to drown himself in a canal.
On February 6, 2018, appellant admitted allegations in a supplemental petition that he violated his probation by absconding from Quality Group Homes on January 24, 2018, and by being out of contact with the probation department since that date. The court continued appellant on probation and committed him to the JJC for 18 days pending suitable placement. On February 23, 2018, appellant was again placed at Quality Group Homes.
On March 9, 2018, appellant absconded from school and was not at the designated pick-up point and his whereabouts remained unknown until he was arrested on March 15, 2018.
On March 19, 2018, appellant admitted he violated his probation by engaging in the above conduct. The court continued appellant on probation and ordered him detained pending suitable placement.
On April 13, 2018, appellant was placed at the Promesa Group Home. During his stay there, sometimes he would abscond from school and return to the home late at night. Other times he would refuse to attend school and sleep all day. Appellant refused to attend the sexual offender program at the home and he self-admitted sexual activity and using marijuana. On May 25, 2018, when probation officers went to the group home to arrest him for violating probation, appellant disobeyed commands from the officers to stop and he attempted to elude them before he was taken into custody. Appellant was subsequently terminated from the group home program.
Although not adjudicated of a sexual offense, appellant was required to receive sexual offender treatment because in April 2014, when he was 11 years old, he was removed from his parents' home after Child Protective Services sustained multiple referrals alleging appellant sexually abused his siblings and other children. Appellant's parents were unable to control his behavior and they wanted appellant to complete a sex offender program before he was returned to their care.
On June 6, 2018, appellant admitted allegations in a third supplemental petition that he violated his probation by failing to obey the lawful directives of his placement and failing to complete a treatment program. The court committed appellant to the JJC for 83 days and ordered him placed in the custody of the probation officer pending suitable placement. During his commitment, appellant was provided mental health services, educational services and mentoring.
The Current Violation
On August 28, 2018, appellant was released from custody at the JJC and placed in foster care in the home of James Standow and his wife. On September 18, 2018, appellant was accepted for Senate Bill No. 163 wraparound services and Deputy Probation Officer Donnisha Jennings informed appellant he would need to complete his sex offender treatment program through Alliant University. On October 3, 2018, Jennings was informed appellant had been terminated from the Alliant program for noncompliance with program rules.
On October 24, 2018, Jennings was informed by the wraparound facilitator that appellant was in possession of a cell phone, which he was prohibited from possessing. Appellant initially refused to give up the phone, stated he would rather be in custody than follow the Standow's rules, and threatened to abscond. However, eventually he gave up the phone and indicated he would comply with the rules.
On October 26, 2018, appellant was found heavily intoxicated at school and taken to a hospital. Appellant had in his possession a water bottle full of tequila. Later that day, appellant threatened to commit suicide.
On November 11, 2018, Standow reported appellant had absconded from his care. After he returned on November 12, 2018, Standow found appellant's backpack hidden in a doghouse. Inside, he found three knives and a plastic bag containing 176 grams of marijuana. Appellant again absconded but was arrested that night.
On November 14, 2018, the probation department filed a fourth supplemental petition alleging appellant violated his probation by: (1) failing to obey the directives of his placement by absconding on November 11 and 12, 2018; (2) possessing 176 grams of marijuana; and (3) possessing three knives.
In recommending a custodial commitment for appellant, who was then 15 years old, appellant's probation report noted that while placed in foster care appellant failed to complete the sex offender program through Alliant University, was suspended from school for being intoxicated, and he possessed knives and marijuana. Thus, the report recommended a 90-day commitment to the JJC so appellant could "grasp the concept that he must adhere to Court orders, and realize his behavior [was] dangerous to his safety and wellbeing" and because the reporting officer believed appellant would benefit from a custodial commitment and hopefully begin to make positive changes.
On November 15, 2018, after appellant admitted he violated his probation as alleged in the fourth supplemental petition, the court proceeded to disposition. In arguing for a 90-day JJC commitment, the probation officer noted that appellant suffered his third probation violation in June 2018, and that he had been released from custody in August and then had many issues in his foster home placement. The court then heard from Standow who stated that although appellant had issues, he did not believe appellant was receiving help from the county to get the services he needed. Standow also explained that appellant was terminated by Alliant University for nonattendance because Standow was not able to pay the fees for the program and the day before, Fresno County informed him that appellant had been accepted into their behavioral health program.
Defense counsel argued appellant's probation was not violated because he failed to attend the sex offender program and that the focus should be on appellant's rehabilitation. She further argued that since appellant had been accepted into the county's sex offender program, it was best for appellant to start receiving those services and the court should consider releasing him that day or impose a shorter commitment because appellant was on a waiting list and could lose his spot if he were in custody 90 days. When the court asked defense counsel if she wanted to continue the matter so she could get more information, defense counsel indicated she did not.
After further discussion, the probation officer stated that appellant was not being violated for failing to attend the sex offender program, that he was currently receiving services, and that once he was released, he would again receive services and at that time they could address the mental health services he needed.
After more comments, the court ordered appellant's custody temporarily placed under the control of the probation officer. It also set appellant's maximum term of confinement at eight years 10 months, with credit for 339 days in custody, and it committed him to the JJC for 90 days.
Appellant was in custody at the JJC those 339 days. --------
DISCUSSION
Appellant contends there was no evidence he would benefit from a 90-day commitment to the JJC because his prior incarcerations there for a total of 339 days was "admittedly without any rehabilitative effect" and there was no evidence the JJC was equipped to provide him with the services he needed. Thus, according to appellant, he was committed there solely for retribution. Appellant further contends he had the ability to "curb his behavior" in a less restrictive setting and that there were less restrictive, appropriate placements that in the past had "worked toward his rehabilitation." Thus, according to appellant, the court abused its discretion when it committed him to the JJC for 90 days. There is no merit to this contention.
"When determining the appropriate disposition in a delinquency proceeding, the juvenile courts are required to consider '(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.' [Citations.] Additionally, 'there must be evidence in the record demonstrating both a probable benefit to the minor ... and the inappropriateness or ineffectiveness of less restrictive alternatives.' [Citation.] 'A juvenile court's commitment order may be reversed on appeal only upon a showing the court abused its discretion. [Citation.]' " (In re Jonathan T. (2008) 166 Cal.App.4th 474, 484-485.)
" ' "Minors under the juvenile court's jurisdiction must receive the care, treatment, and guidance consistent with their best interest and the best interest of the public. ([Welf. & Inst. Code,] § 202, subd. (b).) Additionally, minors who have committed crimes must receive the care, treatment, and guidance that holds them accountable for their behavior, is appropriate for their circumstances, and conforms with the interest of public safety and protection. [Citation.] This guidance may include punishment that is consistent with the rehabilitative objectives. [Citation.]" ' " (In re Nicole H. (2016) 244 Cal.App.4th 1150, 1154-1155.)
Although only 15, appellant had been adjudicated of numerous criminal offenses, including first degree burglary, he was required to receive sex offender treatment because he sexually abused his siblings and other children, and he had sustained allegations in four supplemental petitions that he violated his probation. After his release from custody following his admission of the allegations in the third supplemental petition, appellant was placed in a foster home with the Standow family and he continued to act out and disobey the court's orders. On October 24, 2018, appellant was in possession of a cell phone, which he was prohibited from possessing. Before relinquishing the phone, appellant threatened to disobey his foster parents' rules and to abscond from that placement. Two days later, he was found in possession of a water bottle full of tequila and so intoxicated that he was taken to a hospital. He also threatened to commit suicide that day as well as on a prior occasion. On November 11, 2018, he absconded from the Standow's house. When he returned the next day, he was found in possession of three knives and a bag containing almost six ounces of marijuana and he absconded from his foster home placement a second time.
The court could reasonably find from the above circumstances that appellant would benefit from a commitment to the JJC because it would hold him accountable for his continued refusal to abide by the court's orders, it would impress upon him the consequences of disobeying those orders, and during his commitment there he would have available the mental health and educational services and mentoring he received during previous incarcerations. Appellant would also benefit from a JJC commitment because it would prevent him from carrying out his threats of committing suicide while potentially being evaluated to determine how serious a threat he was to himself. Further, appellant's possession of three knives represented a substantial escalation of his potential for violence. Therefore, appellant's commitment to a secure setting like the JJC would also serve to protect the public from his increasing dangerous criminal conduct while he was in custody. Thus, the record contains substantial evidence that supports the court's finding that appellant would benefit from a commitment to the JJC and that his commitment there was consistent with the purposes of the juvenile court law.
Moreover, since the record supports the court's implicit finding that appellant needed to be in a secure placement because of the reasons discussed above, it also supports the court's implicit finding that a foster home or a group home, like the ones in which he had previously been placed, would be inappropriate because they were not secure placements. Additionally, appellant's conduct underlying his four supplemental petitions demonstrated that less restrictive alternatives were inappropriate and/or ineffective because they had not had any success in rehabilitating appellant.
Further, since the record supports a finding that appellant would benefit from a commitment to the JJC because he would receive some services there and it would hold him accountable for his actions, we reject appellant's contention that the court committed him to the JJC solely for retribution. Thus, we conclude that the court did not abuse its discretion when it committed appellant to the JJC for 90 days.
DISPOSITION
The jurisdictional and dispositional orders are affirmed.