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People v. F.M. (In re F.M.)

California Court of Appeals, First District, Second Division
Aug 21, 2023
No. A166292 (Cal. Ct. App. Aug. 21, 2023)

Opinion

A166292

08-21-2023

In re F.M., a Person Coming Under the Juvenile Court Law. v. F.M., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,


NOT TO BE PUBLISHED

(Solano County Super. Ct. No. J45604)

Richman, Acting P.J.

In August 2021, when he was 15 years old, defendant F.M. fired shots at two victims, seriously injuring them. F.M. was charged with two counts of attempted murder, two counts of assault with a firearm, and carrying a loaded firearm, along with various enhancements. After F.M. admitted two counts of assault with a firearm, the remaining charges were dismissed and the juvenile court ordered him committed to the Solano County Reaching Into Successful Endeavors (RISE) program, a secure youth treatment facility. F.M. argues that substantial evidence does not support the court's finding that the RISE program would be of probable benefit to him or its finding that less restrictive alternative dispositions were inappropriate. We affirm.

BACKGROUND

The Shooting

According to the probation officer's report, on August 29, 2021 at 10:02 p.m., officers from the Soledad Police Department responded to a shooting with two victims. The first victim was "on the ground and having difficulty moving and feeling his legs." He had sustained six gunshot wounds to his left deltoid, right upper chest, abdomen, right forearm, left thigh, and left calf. He was later placed in the intensive care unit and intubated. The second victim sustained two gunshot wounds to his left scapula and left arm.

The second victim's brother identified F.M. as one of three shooters. The second victim and his 14-year-old brother had been standing about 25 feet away from a group including F.M. when someone pointed a" 'green laser attached to a gun'" at them. A verbal and physical altercation ensued, and F.M. and two others began shooting at the second victim, his brother, and victim No. 1. The incident was "related to previous confrontations between the subjects." The second victim later told police that F.M. and his group had "started doing a 'Norte whistle'" before pointing the green laser at his group.

F.M. was later identified as one of the shooters through investigation, a photographic lineup, and witness reports. A search of F.M.'s room yielded a black, 33-round, nine-millimeter magazine matching casings found at the scene.

F.M. was 15 years old at the time of the incident.

The Charges

On October 26, 2021, the Monterey County District Attorney filed an amended wardship petition pursuant to Welfare and Institutions Code section 602, subdivision (a) charging F.M. with two counts of attempted murder (Pen. Code, §§ 187, subd. (a), 664; counts 1 and 2); two counts of assault with a firearm (id., § 245, subd. (a)(2); counts 3 and 4); and carrying a loaded firearm (id., § 25850, subd. (a); count 5). The petition also alleged that F.M. personally and intentionally discharged a firearm during the commission of the attempted murders (id., § 12022.53, subd. (d)), that he personally used a firearm during the commission of the attempted murders and the assaults (id., § 12022.5, subd. (a)), and that he committed the attempted murders and the assaults with a firearm for the benefit of a criminal street gang (id., § 186.22, subd. (b)(1)).

Further unspecified statutory references are to the Welfare and Institutions Code.

On May 25, 2022, F.M. admitted both counts of assault with a firearm and the enhancement allegation that he committed both assaults for the benefit of a criminal street gang. The remaining counts and enhancements were dismissed. The parties agreed that the maximum term of confinement was eight years and that the Soledad police report regarding the incident provided a factual basis for the plea.

Disposition

The Monterey County Probation Department prepared a disposition report recommending that the case be transferred to Solano County. At a June 23 hearing in Monterey County Superior Court, the juvenile court ordered the case transferred to Solano County for disposition because that was F.M.'s mother's county of residence.

A contested disposition hearing was held in Solano County on September 7, 2022. In advance of the hearing, F.M. was evaluated by Dr. Carolyn Murphy, who submitted a confidential psychological evaluation to the court. On the date of the hearing, the Solano County Probation Department submitted a report recommending that F.M. be committed to the RISE program, a "county-based care, custody, and supervision program responsible for providing rehabilitative treatment and intervention for youth realigned from the state Division of Juvenile Justice (DJJ)," and a memo update to that report, recommending that the court select RISE as opposed to the Challenge Academy. F.M.'s probation officer, Phyllicia Garrett, testified in support of the probation department's recommendation and was the only witness.

The court then heard argument from counsel. F.M.'s counsel argued that the court should order commitment to the Challenge Academy, because it "is the least restrictive, most family-like setting, with the appropriate length of time," "considering that he's been in custody already a year now." The prosecution asked that the court follow probation's recommendation and select the RISE program.

The juvenile court then found as follows:

"THE COURT: All right. I'll note for the record that the Court has reviewed the probation officer's-Solano County probation officer's report, which was prepared for August the 24th, as well as the memo update prepared for today. In addition, the Court has also looked at the Monterey County probation report filed 6-23, as well as Dr. Murphy's evaluation.

"[F.M.'s counsel] Ms. Maroufi has indicated that there is no identification of gang affiliation before this particular event, maybe one year prior. I'm not sure regarding that, but I note that in the probation report prepared by a probation officer in Monterey County, filed on 6-23-2022, on page 12, it indicates that at Main Street Middle School there were several discipline reports to include gang involvement. And so I note that that is there.

"I also note that the gang officer or gang detective in Monterey County also indicates that this young man is affiliated with the Soledad Vatos Locos and has identified him as a member.

"In addition, in Dr. Murphy's report, I note that she indicates that he does not have any adverse childhood experiences, no mental health issues or serious behavioral or substance abuse concerns. However, she did diagnose him with a conduct disorder, adolescent onset; cannabis use disorder, mild to moderate; and specific learning disability, which was suspected. And that's on page eight of the report.

"I note that mom has indicated that she does not abide by use of marijuana; however, her son-and this is on the 8-24-22 report, page ten, refuses to abstain from marijuana, even though that is the mother's rule. I note that, in the report by Dr. Murphy, she indicates that his first use was at 12, and by 14 he was using two to three times a week a concentrated form of marijuana and then using daily at the time of offense, so that's how she came up to the cannabis use disorder.

"Ms. Maroufi indicates that he is at a moderate risk to re-offend, but on page 13 of the report prepared on August the 24th, I note that there were high risk areas, including education and employment, leisure and recreation, peer relations, as well as substance abuse. The moderate areas were attitude and orientation, personality, and behavior.

"I'll note that this occurred during day time, and this was an apartment complex with other people around. And this is a pretty brazen shooting in the daytime. And the minor was identified as one of the shooters. So as to the severity of the offense, the minor's role in this offense is that he's one of the shooters. And as I noted, this occurred in daytime, with other individuals around. And victims were shot and had to move away because of fear that they had.

"As to the previous delinquent history, there were no-other than violating COVID restrictions, there's no other delinquent history, so no previous attempts by the juvenile court to rehabilitate the ward.

"The programming, treatment, education offered by the Challenge Academy, according to the probation officer, is nine months. And although it is a less restrictive environment, the Court finds that there's some issues [sic] that need to be addressed that I did not hear that Challenge Academy would address in that nine-month period.

"First of all, there is an individualized treatment plan that would be provided specifically for this young adult, but not as in the Challenge [Academy] where the program is generic. Not only that, the multidisciplinary team would meet with him and set up that program. And I believe that's to be done within the first 30 days.

"He needs some assistance in decision-making, pro-social relationships. And even though they don't offer gang-affiliation treatment, they do provide programming regarding peer relationships, as well as pro-social relationships.

"He needs some language processing skills, according to Dr. Murphy. And that would assist him, also, with any cognition or verbal learning disability. It appears that the multi-disciplinary team would be able to do that, based on the fact that they not only have that correctional counselor and mental health clinician and social services worker, but they also have SCOE [(Solano County Office of Education)] to assist. I did not hear that Challenge [Academy] would be able to assist him with this, as there is not an individualized plan to address these issues.

"I did not find that there were any other special needs, other than the one specific need that was identified by Dr. Murphy. And as noted previously, Dr. Murphy did not identify any other specific needs, indicating specifically that she did not find any ACEs [(adverse childhood experiences)], mental health issues, or serious behavioral or substance use concerns, other than the cannabis use disorder.

"The Court is going to adopt the recommendation to commit him to RISE, as I believe that there will be a probable benefit to him.

"And as Ms. Garrett noted, there's a review every six months, and he can step down every six months if he is doing what he is supposed to do."

F.M. filed a timely notice of appeal.

DISCUSSION

F.M. argues that substantial evidence does not support the court's finding that commitment to the RISE program would be of probable benefit to him or its finding that less restrictive alternative dispositions were inappropriate.

Standard of Review and Applicable Law

"[T]he juvenile court has long enjoyed great discretion in the disposition of juvenile matters ...." (In re Greg F. (2012) 55 Cal.4th 393, 411.) It has" 'maximum flexibility to craft suitable orders aimed at rehabilitating the particular ward before it.'" (Ibid.) We review a commitment decision for abuse of discretion and factual findings for substantial evidence, indulging all reasonable inferences to support the juvenile court's decision. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396; In re Carlos J. (2018) 22 Cal.App.5th 1, 5 (Carlos J.); In re Khamphouy S. (1993) 12 Cal.App.4th 1130, 1135 [decision affirmed unless the court "acted beyond the scope of reason"].)

The purpose of juvenile law guides our examination of the record. (In re Calvin S. (2016) 5 Cal.App.5th 522, 528.) The law provides that removal may be necessary for a minor's "welfare or for the safety and protection of the public." (§ 202, subd. (a).) Delinquent minors "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." (Id., subd. (b); In re Eddie M. (2003) 31 Cal.4th 480, 507 [court may choose custodial confinement "to hold juveniles accountable for their behavior, and to protect the public"].)

Until recently, the Division of Juvenile Justice (DJJ) was "the state's most restrictive placement for its most severe juvenile offenders ...." (In re Miguel C. (2021) 69 Cal.App.5th 899, 902.) "The DJJ is also known as the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF). [Citation.] DJJ and DJF are used interchangeably in case law." (In re J.B. (2022) 75 Cal.App.5th 410, 413, fn. 1.) "The DJJ was previously known as the California Youth Authority." (In re Miguel C., p. 906, fn. 4.)

In 2020, the Legislature enacted "Juvenile justice realignment" by passing Senate Bill No. 823 (2019-2020 Reg. Sess.) (Stats. 2020, ch. 337.). Implementing the Legislature's juvenile justice realignment program required the eventual closure of the DJJ and the devolution of its responsibilities onto California's counties. (§ 736.5, subd. (a).) The countylevel equivalent of DJJ is a "secure track" commitment also known as a secure youth treatment facility. (§ 875.)

In the context of secure track commitments, section 875, subdivision (a)(3) requires the juvenile court to make "a finding on the record that a less restrictive, alternative disposition for the ward is unsuitable. In determining this, the court shall consider all relevant and material evidence, including the recommendations of counsel, the probation department, and any other agency or individual designated by the court to advise on the appropriate disposition of the case. The court shall additionally make its determination based on all of the following criteria: [¶] (A) The severity of the offense or offenses for which the ward has most recently been adjudicated, including the ward's role in the offense, the ward's behavior, and harm done to victims. [¶] (B) The ward's previous delinquent history, including the adequacy and success of previous attempts by the juvenile court to rehabilitate the ward. [¶] (C) Whether the programming, treatment, and education offered and provided in a secure youth treatment facility is appropriate to meet the treatment and security needs of the ward. [¶] (D) Whether the goals of rehabilitation and community safety can be met by assigning the ward to an alternative, less restrictive disposition that is available to the court. [¶] (E) The ward's age, developmental maturity, mental and emotional health, sexual orientation, gender identity and expression, and any disabilities or special needs affecting the safety or suitability of committing the ward to a term of confinement in a secure youth treatment facility." (§ 875, subd. (a)(3).)

There Was Substantial Evidence of Probable Benefit to F.M. from the RISE Program

The juvenile court expressly found that the RISE program would provide a "probable benefit" to F.M. In particular, it noted that F.M. needed help with "decision-making," forming "pro-social relationships," and with language processing skills, in particular, with a possible "cognition or verbal learning disability," and that these issues could be addressed by RISE because it would provide an "individualized treatment plan" put together by a "multi-disciplinary team."

Section 734, which applies to DJJ commitments, provides that "[n]o 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 will be benefited by the reformatory educational discipline or other treatment provided by the Youth Authority." The Attorney General argues that because section 875 does not contain similar language, evidence of probable benefit was not required. On reply, F.M. argues that evidence of probable benefit was required by both section 202, subdivision (b), providing that "[m]inors under the jurisdiction of the juvenile court who are in need of protective services shall receive care, treatment, and guidance consistent with their best interest and the best interest of the public," and with California Rules of Court, rule 5.790(h)(3)(D), providing that "[t]he decision regarding choice of placement must take into account . . . [¶] . . . [¶] . . . [t]hat the setting is the environment best suited to meet the child's special needs and best interest." (See Carlos J., supra, 22 Cal.App.5th at p. 6 [evidence of probable benefit is required not only by § 734, but also by § 202, subd. (b) and Cal. Rules of Court, rule 5.790(h)].) Because we conclude that substantial evidence supports a finding of probable benefit, we need not resolve the parties' disagreement about whether such a finding was required.

Substantial evidence supported this finding. In particular, Dr. Murphy found that F.M. had "[d]iagnostic considerations" of adolescent-onset conduct disorder, mild to moderate cannabis use disorder, and a suspected specific learning disability, noting that he may be "struggling with a pronounced verbal learning disability or language processing disorder," meaning it was "not surprising that he is unduly influenced by older peers/family members, and can be impulsive." Dr. Murphy concluded that "[t]reatment targets in the form of vocational training and shoring up prosocial factors are clearly identified here," and that "[t]ailoring treatment to address vocational skills development, prosocial hobbies and relationships, and his language processing issue . . . would be of benefit to him."

The dispositional report elaborated that upon entry into the RISE program, F.M. would be assigned a multidisciplinary team comprised of "an assigned Juvenile Correctional Counselor, a Mental Health Clinician, a Social Services Worker, a Deputy Probation Officer, and a Mentor/Coach," and would "undergo a variety of assessments that will be used to develop an individualized case plan and identify appropriate services." "Driven by his case plan and the recommendations of the MDT [(multidisciplinary team)], [F.M.] will participate in several services to address his needs," including mental health support, individual and family therapy, and substance use disorder treatment. According to the report, F.M. would "engage in daily individual contact, activities, and ongoing cognitive behavior therapy groups with focus on teaching youth problem solving skills, skills in emotional regulation, social skills, conflict management and negotiation skills, and prosocial values, attitudes and belie[fs] that underlie prosocial competence." Phase three of the program would focus on "prosocial engagement and exploration of the youth's goals for himself," with the "opportunity to engage in technical education, college coursework, and expanded vocational and educational programming," and a "possible path to employment and work furloughs."

All of this is substantial evidence in support of the juvenile court's conclusion that the RISE program would provide benefits to F.M., in the form of an individualized case plan, prosocial skills, substance abuse treatment, vocational training, and addressing his possible language processing issues.

F.M. relies heavily on Carlos J., supra, 22 Cal.App.5th 1, but that case does not assist him. In Carlos J., there were no witnesses at the dispositional hearing, and the probation officer recommended commitment to the DJF based on "the gravity of the underlying offense and [the minor]'s association with the Surenos gang." (Id. at pp. 9, 7.) Because the probation report did not provide any specific information about the programs available at the DJF or how they would benefit the minor, Carlos J. concluded that the juvenile court's finding of probable benefit was not supported by substantial evidence: "The court could not make [a probable benefit] finding, and this court cannot review the adequacy of the evidence supporting the finding, without evidence in the record of the programs at the DJF expected to be of benefit to [the minor]. The probation officer's unexplained and unsupported assertion of possible benefit is not evidence of 'reasonable, credible and of solid value' from which the juvenile court could make an informed assessment of the likelihood a DJF placement would be of benefit to [the minor], in light of his specific needs." (Id. at p. 10.) That is not the case here, where the record contains ample substantial evidence of the specific programs available at RISE that would be of probable benefit to F.M. given his specific needs.

Substantial Evidence Supports the Juvenile Court's Rejection of Less Restrictive Alternatives

In his opening brief, F.M. argues that the record does not contain substantial evidence that less restrictive alternatives, "such as a group home or a residential treatment facility," were inappropriate. On reply, he makes the same argument with respect to the Challenge Academy. We disagree on both counts.

Applicable Law

"[T]here is no rule that [a DJJ] placement cannot be ordered unless less restrictive placements have been attempted, and there is no requirement that the juvenile court expressly state on the record the reasons for rejecting less restrictive placements. ([In re M.S. (2009) 174 Cal.App.4th 1241, 1250]; In re Teofilio A. (1989) 210 Cal.App.3d 571, 577 (Teofilio A.); see also In re Ricky H. (1981) 30 Cal.3d 176, 184 [although juvenile court failed to articulate reasons for California Youth Authority commitment, evidence in the record showed that 'the purposes of the Juvenile Court Law could not be accomplished by' a less restrictive placement (fn. omitted)].) Rather, 'if there is evidence in the record to show a consideration of less restrictive placements was before the court, the fact the judge does not state on the record his consideration of those alternatives and reasons for rejecting them will not result in a reversal.' (Teofilio A., at p. 577.) On the other hand, 'there must be some evidence to support the judge's implied determination that he sub silentio considered and rejected reasonable alternative dispositions.' (Ibid.; accord, In re Angela M.[, supra,] 111 Cal.App.4th [at p.] 1396.)" (In re Nicole H. (2016) 244 Cal.App.4th 1150, 1159.)

Analysis

The record makes clear that the consideration of less restrictive placements was before the court. The disposition report stated that "[a]ll disposition options were considered," that "[a] return home without the appropriate level of services and a more extensive amount of time to address [F.M.'s] needs may place him and the community at continued risk," and that "commitment to the Challenge Academy was not appropriate given [F.M.] needs a greater scope of time and services to address his needs to reduce risk and avoid future repeat of this behavior." And at the disposition hearing, F.M.'s counsel argued at length in favor of commitment to the Challenge Academy as the "least restrictive, most family-like setting."

In making its commitment decision, the juvenile court considered each of the statutory factors set forth in section 875, subdivision (a)(3). F.M. argues that there is no evidence the court considered "less restrictive alternatives to RISE, such as a group home or residential treatment facility," but there is nothing in the record to suggest that F.M.'s counsel ever (1) requested that the court consider those alternatives, (2) identified any particular such facilities that would be appropriate, or (3) provided any argument or evidence in favor of selecting them. And the record contains evidence supporting an implied determination that such alternatives would have been inappropriate, based, for example, on the "severity of the offense" (§ 875, subd. (a)(3)(A))-the court noted that F.M. used a firearm to shoot at multiple people, resulting in serious injury to two victims and two charges of attempted murder committed for the benefit of a criminal street gang-as well as "[w]hether the goals of rehabilitation and community safety can be met by assigning the ward to an alternative, less restrictive disposition" (§ 875, subd. (a)(3)(D))-the court also noted that the two victims "had to move away because of the fear that they had." And based on Dr. Murphy's evaluation, the court could have concluded that such less restrictive alternatives could not have offered the intensive, individualized services that F.M. required and that were available through the RISE program.

With respect to the Challenge Academy, the court expressly found that there were "some issues" that it would not address during the nine-month period of its program. Dr. Murphy's evaluation found that F.M. was in need of a "[t]ailor[ed]" treatment plan, including assistance in developing prosocial behavior, vocational training, treatment for his cannabis use disorder, and evaluation and treatment of possible language processing issues. The September 7, 2022 addendum to the probation officer's report noted that "after completing six months at Challenge [Academy], [F.M.] may become eligible to leave the facility unsupervised for furloughs, which is not sufficient time to ensure he no longer represents a risk to the community." The court ultimately rejected placement at the Challenge Academy because the curriculum there was "generic" and intended to be completed in nine months, whereas RISE could provide an individualized treatment plan, supervised by a multidisciplinary team, with ongoing evaluations every six months to determine whether F.M. was making progress. Substantial evidence in the record supports these determinations.

In short, "indulging all reasonable inferences to support the juvenile court's decision" (In re Angela M., supra, 111 Cal.App.4th at p. 1396), we find substantial evidence supports the juvenile court's finding of the inappropriateness or ineffectiveness of the less restrictive alternatives to the RISE program.

DISPOSITION

The judgment is affirmed.

We concur: Miller, J. Markman, J. [*]

[*]Superior Court of Alameda County, Judge Michael Markman, sitting as assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


Summaries of

People v. F.M. (In re F.M.)

California Court of Appeals, First District, Second Division
Aug 21, 2023
No. A166292 (Cal. Ct. App. Aug. 21, 2023)
Case details for

People v. F.M. (In re F.M.)

Case Details

Full title:In re F.M., a Person Coming Under the Juvenile Court Law. v. F.M.…

Court:California Court of Appeals, First District, Second Division

Date published: Aug 21, 2023

Citations

No. A166292 (Cal. Ct. App. Aug. 21, 2023)