Opinion
A148889
02-17-2017
In re DAVID F., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. DAVID F., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. JV84611)
Appellant David F. (appellant) contends the juvenile court abused its discretion in committing him to the Division of Juvenile Justice ("DJJ"). We modify the court's orders in one respect and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On August 15, 2015, appellant participated in a group assault on an individual in South San Francisco. The victim reported he was in the area of the assault trying to purchase marijuana. Some apparent gang members said, "What are you doing here? You know you don't belong here." The victim walked away but shortly after a group of people ran up and assaulted him. A surveillance camera video showed five people approach the victim and begin assaulting him. Appellant appears on the video stomping, kicking, and punching the victim's head. The victim suffered a two inch cut on his head, and other scrapes and scratches. Appellant eventually acknowledged he participated in the assault because he wanted acceptance from the Cypress Park Locos gang.
This summary of the offense is based on the probation report.
On August 18, 2015, the San Mateo County District Attorney filed a Welfare and Institutions Code section 602 petition alleging that appellant, age 16, committed assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4); count one), battery with serious bodily injury (Pen. Code, § 243, subd. (d); count two), and participation in a criminal street gang (Pen. Code, § 186.22, subd. (a); count three). The petition alleged as to counts one and two that appellant committed the crime for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(A)), and as to count one that he personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)). The count one assault charge was amended to a felony and appellant admitted it; the remaining charges and the enhancements were dismissed.
All undesignated statutory references are to the Welfare and Institutions Code.
On September 26, 2015, appellant was watching a movie with the rest of his unit in juvenile hall. He got up to throw away some garbage, and on his way stopped and punched another youth in the face. On October 2, the San Mateo County District Attorney filed a section 602 petition alleging appellant committed misdemeanor battery (Pen. Code, § 242).
At an October 6, 2015 dispositional hearing on the August 18 petition, the juvenile court stayed a commitment to Camp Glenwood and placed appellant on probation subject to serving 180 days therapeutic detention in juvenile hall. The October 2 petition was dismissed.
While in juvenile hall on November 5, 2015, appellant ran up to a youth playing paddleball and punched him numerous times in the head and upper body. On November 9, the probation department alleged appellant violated probation by attacking the other boy. Appellant admitted the violation and was continued on probation, subject to serving an additional 90 days therapeutic detention.
On March 3, 2016, juvenile hall employees were escorting appellant and several other youths from the gym to their unit. While they waited for the unit door to be opened, appellant got out of the line and started punching a Sureño gang member in the head. On March 4, the probation department alleged appellant violated probation by that attack. He admitted the violation.
On July 20, 2016, following a contested dispositional hearing, the juvenile court committed appellant to the DJJ with a maximum confinement time of four years. This appeal followed.
DISCUSSION
Appellant contends the juvenile court abused its discretion by committing him to DJJ. He argues there is no evidence a less restrictive program would have been inappropriate and there is no evidence of probable benefit to him from a DJJ commitment. As to the latter point, he argues "the evidence demonstrates that DJJ is an inappropriate placement, which will not meet some of his key needs, and will likely exacerbate some of his problems." The juvenile court did not abuse its discretion.
I. Background to DJJ Commitment
A. The Evidence Presented to the Juvenile Court
The probation report submitted to the juvenile court for the disposition hearing recommended that appellant be committed to DJJ. The probation officer rejected placement of appellant at Camp Glenwood because it is "an open setting and an unlocked facility." The officer reasoned that appellant "has demonstrated he is unwilling to follow institution rules or staff's directions or control himself in a secure facility. If committed to Camp Glenwood, [appellant] would cause safety issues for other youth and staff members." The probation officer rejected "long-term therapeutic detention" at juvenile hall due to the assaults appellant committed there and because the available programs could not address his gang-related issues. The officer concluded that a DJJ commitment "is the only recommendation that will protect the community as well as facilitate [appellant's] rehabilitation." Appellant would have the opportunity to attend school and participate in counseling, gang intervention and anger management programs, and a substance abuse program. The probation department's Resource Review Board concurred with the recommendation.
On the other hand, appellant presented a report prepared by a former San Mateo County probation officer, who recommended appellant be placed at Camp Glenwood. The author characterized a DJJ commitment as a "rapid escalation" and "punitive sanction." He noted no attempt had been made to provide appellant services in a county level program; he opined appellant needs mental health services, an educational program, drug and alcohol treatment, and programs for anger management, gang awareness, and victim awareness. He believed appellant now understood the severity of his actions and the need to change.
In an earlier report to the juvenile court, the probation officer had explained that minors placed at Camp Glenwood can attend school, receive counseling, and participate in a gang awareness program. Minors placed at the camp can also attend counseling with their parents, and their parents can attend a parental education and support program. Juveniles released from the camp remain under probation department supervision.
At the dispositional hearing, the prosecution presented testimony from Doug Ugarkovich, the DJJ's court community liaison. Mr. Ugarkovich said that during the DJJ intake process and then every 90 days appellant's needs would be assessed with a "validated risk needs assessment tool." To address appellant's gang involvement, the DJJ would employ both an "evidence-based approach" called the CounterPoint Program and a "non-evidence-based intervention" called IMPACT. The DJJ has a 10-week "evidence-based anger intervention program." The DJJ has a 38 session "evidence-based substance abuse program." The DJJ offers various levels of mental health services and minors committed to the DJJ can meet with a psychologist as needed. The DJJ has an accredited high school program as well as online college courses and vocational training. The DJJ encourages family support and involvement, including family counseling.
The probation officer assigned to appellant's case testified about appellant's pattern of ignoring warnings to control his behavior. The officer met with appellant on November 4, 2015, and admonished him to stay out of trouble; the next day appellant committed an assault in juvenile hall. The probation officer testified that, at the January 20, 2016 probation violation hearing, a juvenile court judge warned appellant "DJJ was hanging over his head." Nevertheless, appellant got into fights at juvenile hall in February and March. The probation officer opined appellant could benefit from DJJ and he poses a risk to other wards if returned to juvenile hall or sent to camp.
Also at the dispositional hearing, appellant presented testimony about his personal background and about the DJJ from Nisha Ajmani, program manager of the sentencing servicing program for the Center on Juvenile and Criminal Justice. Ms. Ajmani testified she had reviewed appellant's records and interviewed both appellant and his mother. Appellant was abandoned by his father as an infant, and his mother works multiple jobs and struggles financially. At 11 years old appellant was traumatized by the drive-by shooting of a cousin near his home. Following the murder, appellant started using alcohol and marijuana. Appellant struggles academically and has unaddressed mental health issues.
Ms. Ajmani also criticized the DJJ in various respects. She said that, at the time of a 2012 report, between 72% and 84% of the youth at DJJ were gang members. According to the report, most youth join a gang shortly after being committed to DJJ; Ms. Ajmani also testified those who have prior gang affiliations become more "entrenched" in their gangs. Neither Ms. Ajmani nor the probation officer had information regarding the effectiveness of the DJJ's gang intervention programs. Ms. Ajmani testified DJJ had a lack of psychologists and correctional counselors trained as peace officers were providing counseling services. Ms. Ajmani testified appellant "consistently . . . engaged in programming and services" at juvenile hall and a DJJ commitment would undermine the progress appellant had made and lead to more antisocial behavior. She opined he would respond positively to probation in the community or an out-of-home placement. She explained that community placements with "wraparound" services "have better rehabilitative outcomes" and result in lower recidivism rates than DJJ commitments.
B. The Juvenile Court's Ruling
At the conclusion of the dispositional hearing, the juvenile court said it had "thought about this a lot" and considered "all options." The court acknowledged the range of appellant's needs and stated the gang involvement issue was a particularly "big one."
As to the community-based program recommended by Ms. Ajmani, the court said such a plan was inappropriate because it would not address appellant's "significant gang issues that put both him and the community at risk." Reviewing his conduct in juvenile hall, the court concluded appellant's "loyalty to this antisocial group blocks other considerations." The court reasoned that placing appellant "back into the community at this point at age 17 and a half without addressing his gang issues would virtually be throwing him into a spiral that will have him in adult court and probably in prison pretty quickly. I really don't want to see that." The juvenile court also rejected placing appellant at Camp Glenwood because it was an open setting with limited staff and limited security, and appellant had "demonstrated that in an open semi-secured situation that he's not going to control himself." An out-of-home placement would be inappropriate because of, among other things, the open setting.
On the other hand, the juvenile court acknowledged "there are pros and cons of DJJ." The court recognized there was a "bad population" at DJJ and the programs have limitations. Nevertheless, the court believed the DJJ had "improved its programming" and it was the best option for appellant because it had "significant structured gang programming." The court further commented in explaining its determination, "Again, none of these choices seem to be perfect. I'm choosing between choices that all have pluses and minuses. I'm well aware that this is probably going to feel like a punishment to [appellant] which I don't intend. I think public safety is addressed . . . by [appellant] being in DJJ while he addresses his issues. I think his safety is protected by DJJ by keeping him out of the community for -- I'm completely convinced he would get in trouble if he were to return now." The court continued, "despite my concerns about DJJ I think it is the best chance to get him out of this spiral he's in before . . . either he or somebody else is in a lot more trouble or before [appellant] is in adult court facing things that I know happens there from many years of experience." The court concluded, "Accordingly, with some reluctance, I do commit him to DJJ[,] not happily, but I think on the evidence in this case that is the appropriate resolution."
II. The Juvenile Court Did Not Abuse Its Discretion
We review the juvenile court's order committing appellant to the DJJ "for abuse of discretion, indulging all reasonable inferences to support the juvenile court's decision." (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) In doing so, we are mindful of the twofold purposes of the juvenile delinquency laws: "(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 In re Schmidt (2006) 143 Cal.App.4th 694, 716.)
"Although the DJJ is normally a placement of last resort, there is no absolute rule that a DJJ commitment cannot be ordered unless less restrictive placements have been attempted. [Citations.] A DJJ commitment is not an abuse of discretion where the evidence demonstrates a probable benefit to the minor from the commitment and less restrictive alternatives would be ineffective or inappropriate." (In re M.S. (2009) 174 Cal.App.4th 1241, 1250; see also § 734 [prohibiting DJJ commitment "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 benefited by the reformatory educational discipline or other treatment provided" therein].)
Appellant argues the juvenile court should have placed him at Camp Glenwood or in another placement because he had only minimal contact with the juvenile justice system before participating in the August 15, 2015 attack and had never received services in an attempt to rehabilitate him without incarceration. However, the juvenile court considered the suitability of all other options. The court concluded a placement in the community with wraparound services as recommended by Ms. Ajmani would put both appellant and the community at risk because of his gang involvement. The court rejected camp and other non-secure placements because appellant had "demonstrated that in an open semi-secured situation that he's not going to control himself." Appellant argues that placement at Camp Glenwood would have removed him from the community and provided access to a range of programs. However, appellant's argument demonstrates only that there was evidence supporting a camp placement; it does not demonstrate an abuse of discretion. (In re Reynaldo R. (1978) 86 Cal.App.3d 250, 256 ["The minor's record, although justifying a less restrictive disposition, was sufficient for a finding of probable benefit to the minor by a [DJJ] commitment."].) The juvenile court expressed concern the programs at the camp would not serve appellant's needs, but most fundamentally the court believed a more secure setting was necessary due to appellant's repeated violent conduct in juvenile hall. We cannot say the court abused its discretion in concluding insecure settings like camp or other out-of-home placements would be inappropriate. (See In re Jonathan T. (2008) 166 Cal.App.4th 474, 486 [need for secure setting rendered camp placement inappropriate].)
Appellant also contends there is insufficient evidence he will benefit from the DJJ commitment. He emphasizes the lack of evidence of mental health services with licensed professionals, the lack of evidence of the quality of instruction at the DJJ, and the evidence of the high rate of gang affiliations among youths committed to DJJ. The juvenile court acknowledged the DJJ's programs were not ideal and that DJJ's "bad population" was problematic. There is, however, sufficient evidence of probable benefit to appellant to sustain the commitment order. Based on appellant's conduct in juvenile hall, the juvenile court could reasonably find a secure environment was necessary to meet "the dual concerns of the best interests of the minor and public protection." (In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684.) The court was particularly motivated by a desire to remove appellant from a "spiral" of criminal conduct that could result in prosecution in adult court. The finding of benefit to appellant is supported by the probation report, the testimony of appellant's probation officer, and the testimony of Mr. Ugarkovich that in a DJJ facility appellant will attend school, have access to mental health counseling, and participate in programs to discourage gang participation, among other programs.
Appellant's reliance on In re Teofilio A. (1989) 210 Cal.App.3d 571 is misplaced. There, among other things, the minor's "conduct was not aggressive or assaultive," "he threatened no one," and "his offense was a single $60 sale of cocaine." (Id. at p. 578.) The juvenile court in that case relied exclusively on the probation officer's report, which did not reflect consideration of less restrictive alternatives. (Id. at p. 577.) In the present case, appellant was 17 years old at the time of the July 2016 disposition hearing, the record showed appellant's propensity for violence and gang participation, and the probation officer and juvenile court expressly considered the suitability of alternate placements.
The juvenile court acknowledged and expressly considered the evidence presented regarding the shortcomings of the programs at the DJJ, commenting "none of these choices seem to be perfect." Considering all the circumstances, the court concluded the DJJ was "the least restrictive option that actually addresses [appellant's] needs." Although we are also sensitive to the DJJ's flaws, we cannot say the court abused its discretion. (See In re Greg F. (2012) 55 Cal.4th 393, 417 ["Some wards, like the minor here, may be best served by the structured institutional environment and special programs available only at the" DJJ]; In re Jonathan T., supra, 166 Cal.App.4th at p. 486 [upholding DJJ commitment despite its "allegedly subpar programs" because of evidence "[m]inor requires a secure setting for his rehabilitative care"].)
Appellant also contends that, if this court affirms the DJJ commitment, then this court should strike conditions of probation in the juvenile court's dispositional order. Appellant points out that commitment to the DJJ removed appellant from the direct supervision of the juvenile court. (In re Antoine D. (2006) 137 Cal.App.4th 1314, 1324-1325.) In particular, "the juvenile court loses the authority to impose conditions of probation once it commits a ward to" the DJJ. (In re Edward C. (2014) 223 Cal.App.4th 813, 829; see also In re Allen N. (2000) 84 Cal.App.4th 513, 516 ["the imposition of probationary conditions constitutes an impermissible attempt by the juvenile court to be a secondary body governing the minor's rehabilitation"].) Appellant is correct the juvenile court lacked authority to impose conditions of probation, but appellant points out no specific conditions imposed on appellant, other than a requirement to have no contact with the victim that is included in the April 21, 2016 recommended orders. The court erred in imposing that order and we will order it stricken. (Allen N., at pp. 514-516 [striking no contact orders].) Otherwise we do not read the court's orders as imposing probation conditions. We recognize the minutes state that "prior orders not in conflict, including any terms and conditions of probation, remain in full force and effect." However, any prior conditions of probation are in conflict with the DJJ commitment order and, thus, no longer in effect.
DISPOSITION
The juvenile court's order directing appellant to have no contact with the victim is stricken. The court's orders are otherwise affirmed.
/s/_________
SIMONS, Acting P.J. We concur. /s/_________
NEEDHAM, J. /s/_________
BRUINIERS, J.