Opinion
F074373
05-25-2017
In re G.F., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Petitioner and Respondent, v. G.F., Defendant and Appellant.
Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Jennifer M. Poe, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15JL00037B)
OPINION
THE COURT APPEAL from an order of the Superior Court of Merced County. Carol K. Ash, Judge. Kristen Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
Before Kane, Acting P.J., Franson, J. and Smith, J.
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A juvenile petition was filed against G.F. in the Superior Court of Merced County. The petition was sustained as to charges of carjacking and evading an officer, pursuant to Penal Code sections 215, subdivision (a) and 2800.2, subdivision (a), respectively. This was G.F.'s first sustained petition. The probation report prepared for the subsequent disposition hearing recommended that G.F., who was 15 years old at the time, be committed to a county facility, Bear Creek Academy, Youth Treatment Program. The juvenile court, however, committed G.F. to the Division of Juvenile Justice.
Effective July 1, 2005, the correctional institution formerly known as the California Youth Authority (CYA) was renamed the Division of Juvenile Facilities (DJF). DJF is part of the Division of Juvenile Justice (DJJ), which in turn is part of the Department of Corrections and Rehabilitation. (Welf. & Inst. Code, § 1710, subd. (a); Pen. Code, § 6001; Gov. Code, §§ 12838, subd. (a), 12838.3, 12838.5, 12838.13.) The parties' briefs employ the term "Division of Juvenile Justice" or "DJJ," as do we.
On appeal, G.F. contends the juvenile court abused its discretion in committing him to the DJJ. More specifically, he argues the record evidence is insufficient to support the court's findings that (1) a commitment to the DJJ would benefit G.F. and (2) less restrictive alternatives would be ineffective or inappropriate. We agree the evidence is insufficient as to the juvenile court's determination that less restrictive alternatives would be ineffective or inappropriate. Accordingly, we reverse the disposition and remand the matter for further proceedings consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
Since this case was resolved by plea bargain, we must rely on facts recited in the relevant police report as incorporated in the probation report.
At approximately 11:15 a.m. on June 19, 2016, Nathan Bliss and Nathan Perez-Duran were sitting in Perez-Duran's red Honda Accord in the parking lot of an elementary school, waiting for some friends to arrive. A white Chevy Impala drove by, eventually pulling up behind them. When Bliss and Perez-Duran exited their car, perhaps thinking their friends had arrived, two male suspects—one clearly older than the other— got out of the white car. The older suspect was the driver of the white car and the younger one was the passenger; both were wearing face masks and carrying what appeared to be a .357-caliber magnum revolver and a Glock .45-caliber handgun, respectively. The older suspect told Bliss and Perez-Duran to empty out their pockets and place the contents inside Perez-Duran's Honda Accord, which they did. The older suspect had the younger suspect pat down Bliss and Perez-Duran to ensure they did not retain any items on their persons. Bliss and Perez-Duran were then ordered to start walking away from their car. As they complied, the younger suspect yelled, "If you turn around we'll fucking kill you." Thereafter, Bliss heard both cars being driven away.
Bliss and Perez-Duran were able to contact the police and advised the responding Merced County Sheriff's deputies that they had just been robbed at gunpoint of Perez-Duran's Honda Accord as well as personal items, including Bliss's iPhone 6 (in a silver case) and Perez-Duran's black LG cell phone.
At approximately 12:42 a.m. on June 20, 2016, Perez-Duran's Honda Accord was pulled over by officers, after pursuit, on 23rd Street in Merced. The driver, later identified as G.F., matched the description of the passenger suspect in the Impala. An iPhone 6 with a silver case was found in G.F.'s right, back pants pocket and a beanie with two holes cut out of it was in the car. Upon being given a Miranda advisement, G.F. gave the following statement, as memorialized in the police report regarding the incident: "[G.F.] was dropped off in the Beachwood area so he could walk to a friend's house. While he was walking, he found a red Honda Accord in [a] parking lot with the keys located in the ignition and he decided to steal it. [G.F.] was unable to tell the exact location of the parking lot. [He] then drove the Honda Accord to pick up his cousin, Monica Rios. He drove back to Beachwood and was headed towards Merced, when he noticed a cop car driving behind him."
Miranda v. Arizona (1966) 384 U.S. 436.
G.F.'s mother arrived at the location of the traffic stop. She stated that on June 18, 2016, G.F. was picked up at their residence by a known Norteno gang member called "Sharkie" in a white four-door sedan.
On June 21, 2016, a juvenile wardship petition was filed in Merced County Superior Court, charging G.F. with carjacking, second degree robbery (two counts), evading a peace officer, and receipt of a stolen vehicle. (Pen. Code, §§ 215, subd. (a), 211, 496d, subd. (a); Veh. Code, § 2800.2, subd. (a).) The petition further alleged, as a sentence enhancement in connection with the counts of carjacking and second degree robbery, that G.F. had personally used a handgun in the commission of these offenses. (Pen. Code, § 12022.5.) On July 22, 2016, G.F. pled no contest to the carjacking count and admitted the count of evading a peace officer. The court granted the prosecutor's motion to dismiss the remaining counts as well as the handgun allegations.
A disposition hearing was held on August 5, 2016. In the probation report prepared for the hearing, the probation officer recommended that G.F. be adjudged a ward of the court and committed to a county custodial facility, Bear Creek Academy, Youth Treatment Program. The court, however, decided to commit G.F. to the DJJ and continued the hearing to August 10, 2016, to allow the probation department to prepare the appropriate orders. On August 10, 2016, the court committed G.F. to the DJJ, for a maximum confinement time of nine years eight months.
DISCUSSION
G.F. contends the juvenile court abused its discretion by committing him to the DJJ, because there is insufficient evidence in the record to show that (1) he would benefit from a DJJ commitment, and (2) less restrictive alternatives would be ineffective or inappropriate.
"A juvenile court's commitment order may be reversed on appeal only upon a showing the court abused its discretion." (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.) "A trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence." (People v. Cluff (2001) 87 Cal.App.4th 991, 998.) "To support a [DJJ] commitment, it is required that there be evidence in the record demonstrating probable benefit to the minor, and evidence supporting a determination that less restrictive alternatives are ineffective or inappropriate." (In re Teofilio A. (1989) 210 Cal.App.3d 571, 576 (Teofilio A.); Welf. & Inst. Code, § 734.) In evaluating the juvenile court's commitment order for abuse of discretion, "we must apply the substantial evidence test"; substantial evidence is evidence that is reasonable, credible, and of solid value. (Teofilio A., supra, 210 Cal.App.3d at p. 579; People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681, fn. 3.)
Subsequent statutory references are to the Welfare and Institutions Code.
To determine whether substantial evidence supports a DJJ commitment, we examine the evidence presented at the disposition hearing in light of the purposes of juvenile law. (§ 202; In re Michael R. (1977) 73 Cal.App.3d 327, 333 (Michael R.).) Juvenile law is concerned, on the one hand, with the rehabilitation of minors through care, treatment, and guidance, including punishment and accountability, that is consistent with their best interests, and, on the other hand, with the protection and safety of the public. (§ 202; In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684.) In the final analysis, however, "[j]uvenile proceedings continue to be primarily rehabilitative, disallowing punishment in the form of retribution." (In re Julian R. (2009) 47 Cal.4th 487, 496; In re Calvin S. (2016) 5 Cal.App.5th 522, 528.) Accordingly, juvenile law "contemplates a progressively more restrictive and punitive series of dispositions starting with home placement under supervision, and progressing to foster home placement, placement in a local treatment facility, and finally placement at the DJJ." (In re M.S. (2009) 174 Cal.App.4th 1241, 1250 (M.S.).) In short, although "there is no absolute rule that a DJJ commitment cannot be ordered unless less restrictive placements have been attempted," a DJJ commitment is "normally a placement of last resort." (Ibid.)
The Probation Report
Here, other than a letter from G.F.'s mother and a brief statement made by G.F. at the disposition hearing, the only evidence presented to the juvenile court was contained in the probation officer's report. The probation report indicated that G.F. had no prior sustained petitions. He had one prior matter in juvenile court that was resolved through a deferred entry of judgment (DEJ), which he successfully completed shortly before commission of the instant offenses. The report noted that in his probation interview, G.F. acknowledged that he understood he would have to take responsibility for and suffer the consequences of his actions; at the same time, he would only admit to "[taking] the car out of a parking lot." The report also revealed that G.F. had mental health issues and took psychotropic medication, and documented multiple contacts that Child Protective Services had with his family. G.F. was enrolled at Valley Community School, in a special education program in the 10th grade, where he obtained one grade of B and two grades of B minus in the last grading period and maintained a cumulative grade point average of 2.77.
Although the probation report noted that G.F. was prescribed psychotropic medication, the record suggests that the medication was in fact for Attention Deficit/Hyperactivity Disorder (ADHD).
The probation report listed several disciplinary incidents involving G.F. during the first month of his predisposition detention at juvenile hall. These incidents included kicking his door when his mother did not come for an anticipated visit; shaking hands with and saying good night to other detainees rather than going directly to his room upon dismissal for the night; taking a new pair of socks after showering; wandering around the unit after night recreation instead of going directly to his room as directed by staff; being aggressive towards another youth during class; and engaging in physical altercations with other youths on two separate occasions. The probation report ultimately concluded that G.F. "has little criminal history and he has the potential to be successful as he was able to do on DEJ."
After the court warned G.F., at his change of plea hearing, that his poor behavior would be documented in his probation report, G.F. had no further disciplinary incidents at juvenile hall.
After considering the probation report, the juvenile court committed G.F. to the DJJ. The court stated on the record: "I will find that your mental and physical condition and qualifications render it probable that you will benefit from the reformatory discipline or other treatment provided by the Division of Juvenile [F]acilities." (§ 734.) The court further noted, "I just think our local programs here are not adequate to fully rehabilitate you and deal with some of the issues that I see here." In light of G.F.'s claims on appeal, we must apply the substantial evidence test to the court's conclusions. A review of the record reveals that the court's determination that a DJJ commitment would probably benefit G.F. is supported by substantial evidence. The court's finding that less restrictive alternatives would be ineffective or inappropriate, on the other hand, is not supported by substantial evidence.
Probable Benefit of DJJ Commitment
Pursuant to section 734, when a court chooses a DJJ commitment, the court must be fully satisfied that "the mental and physical condition and qualifications of the ward" render it probable that he would benefit from the commitment. Furthermore, there must be evidence in the record demonstrating probable benefit to the minor. (Teofilio A., supra, 210 Cal.App.3d at p. 576.) In making its commitment decision, the court considers factors such as the "protection and safety of the public" as well as the "best interests" of the minor, including the rehabilitative effects of punishment and accountability. (§ 202, subds. (a), (b) & (d); In re Eddie M. (2003) 31 Cal.4th 480, 507 (Eddie M.).) However, the court may not impose punishment for purposes of retribution. (§ 202, subd. (e); Eddie M., at p. 507.)
Here, the juvenile court concluded that the gravity of the offenses warranted a commitment to DJJ for the protection of society, even if G.F. had not been "in charge" in committing the carjacking offense. The court also observed that G.F. committed the instant offenses shortly after completing his DEJ, which suggested he had not truly turned away from criminal activity during the relevant period. The court further noted that G.F. had not taken full responsibility for his conduct and that his attitude, as reflected in the disciplinary incidents documented in the probation report, did not seem sincerely repentant. With reference to G.F.'s comments at the disposition hearing—"I realize that what I did was wrong" and "I understand that I have to deal with my consequences now"—the court noted: "I just don't see where he's really expressed remorse except for today, trying to get my sympathy." Based on this record, which we evaluate in light of the purposes of juvenile law, we conclude that substantial evidence supports the juvenile court's determination that a DJJ commitment would probably benefit G.F.
Appropriateness of Less Restrictive Alternatives to DJJ
Having determined that the juvenile court properly found that a DJJ commitment would probably benefit G.F., we must next consider whether substantial evidence supports the court's finding that less restrictive alternatives would be ineffective or inappropriate. In doing so, we recognize there is no absolute requirement that the juvenile court proceed progressively from the least restrictive to the most restrictive placement, and the court does not automatically abuse its discretion by initially ordering the most restrictive placement. (Eddie M., supra, 31 Cal.4th at p. 507.)
Here, the only evidence as to the feasibility of a less restrictive alternative to DJJ are the facts contained in the probation report. The probation report discussed a county facility, Bear Creek Academy, Youth Treatment Program, as a less restrictive alternative to the DJJ. The report noted that G.F. had been "referred to and found acceptable for the Bear Creek Academy, Youth Treatment Program." The report further recommended that G.F. "be adjudged a ward of the court and committed to the Bear Creek Academy, Youth Treatment Program" because that option would allow him to "participate in a lengthy in custody program" and "hold him accountable as well as provide him with discipline and tools to make better decisions, in a supervised, structured environment." Although, the probation report listed disciplinary incidents that G.F. was involved in during his brief, predisposition detention at juvenile hall, the report concluded that the recommended commitment would provide G.F. with the "discipline and tools" he needed to make better decisions in the future. Furthermore, the report recommended a "lengthy in custody" treatment program at Bear Creek Academy, which would facilitate the protection and safety of the public in the same manner as would a DJJ commitment.
At the disposition hearing, the juvenile court indicated that the Youth Treatment Program at Bear Creek Academy was not a suitable placement for G.F. in light of his disruptive conduct during the first 30 days of his predisposition detention at juvenile hall. Specifically, the court observed that since G.F. had not obeyed the staff at juvenile hall, there was no reason to suppose he would follow directives at the long-term, custodial treatment program recommended by the probation officer. However, there was no basis in the record for the court to equate G.F.'s brief, predisposition detention at juvenile hall to the Youth Treatment Program at Bear Creek Academy, a long-term treatment program tailored to rehabilitate juvenile offenders. In fact, the probation report concluded that the long-term, rehabilitative treatment offered at Bear Creek Academy would equip G.F. with the "tools to make better decisions" in the future. Furthermore, since this was G.F.'s first sustained petition, his conduct in juvenile hall must be viewed in light of the fact that he had not previously received rehabilitative services or treatment in any custodial program. Indeed, there is no indication in the record that G.F. had ever received reformatory treatment of any kind. (See Michael R., supra, 73 Cal.App.3d at pp. 338-339 ["We cannot assume without some evidence on the record that minor will not respond to the counseling techniques, merit system and other aspects of [custodial programs that are less restrictive than DJJ]."].) Given this record, we cannot say that substantial evidence supports the juvenile court's finding that less restrictive alternatives to the DJJ would be ineffective or inappropriate. (M.S., supra, 174 Cal.App.4th at p. 1250 [DJJ commitment is normally a placement of last resort and may be imposed only when there is substantial evidence in the record that less restrictive alternatives are ineffective or inappropriate].)
The record is silent as to whether G.F. had previously been exposed to any treatment programs through the probation department or other county agency. In finding G.F. fit for juvenile court, another juvenile judge had noted: "other than DEJ, [G.F. has] not had the benefit of any probation services whatsoever." The court further observed, "there are many other resources available through this court other than DEJ, since [G.F.] didn't even have a formal probation and wardship as a start ... that could be utilized by this court." --------
We note, however, that the probation report does not describe the facilities and treatment programs at Bear Creek Academy in any detail, nor does it compare Bear Creek Academy, in terms of these factors, to the DJJ. Upon remand, the record may be augmented, at the juvenile's court's discretion, with additional information about Bear Creek Academy, Youth Treatment Program as well as programs available to G.F. at the DJJ. The record, as it stands now, does not disclose substantial evidence to support a finding that the Youth Treatment Program at Bear Creek Academy would be an ineffective or inappropriate placement for G.F. (See Teofilio A., supra, 210 Cal.App.3d at pp. 577, 579 [DJJ commitment was abuse of discretion where there was no evidence as to "crucial issue" of why less restrictive alternatives to DJJ commitment would be ineffective or inappropriate]; Michael R., supra, 73 Cal.App.3d at p. 340 ["Before committing a minor to the [DJJ], there should be some evidence in the record to support a finding that [the purposes of juvenile law] cannot be accomplished by placement in a county facility."].) We must therefore reverse, for insufficient evidence, the commitment ordered by the juvenile court.
DISPOSITION
The commitment order is reversed and the matter is remanded for further proceedings consistent with this opinion.