Opinion
E081029
11-06-2023
In re J.D., a Person Coming Under the Juvenile Court Law. v. J.D., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
Elisabeth R. Cannon, under the appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson, Laura Baggett and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. DLRI2200098, Mark Petersen, Judge.
Elisabeth R. Cannon, under the appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson, Laura Baggett and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MENETREZ J.
J.D. appeals from the juvenile court's dispositional order adjudging her a ward of the court and committing her to a youth treatment and education center (YTEC). She argues that her commitment to the YTEC is unlawful because the unit commingles YTEC youths and youths committed to a secure youth treatment facility (SYTF), a more restrictive level of commitment. She further argues that the court abused its discretion by committing her to the YTEC rather than to a short-term residential therapeutic program, a less restrictive placement. She also argues that her placement in the YTEC violated her constitutional right to equal protection of the law. Lastly, J.D. argues that the court erred by failing to state her maximum period of confinement and failing to calculate her custody credits. We remand for the court to state her maximum period of confinement and calculate her custody credits, but we otherwise affirm.
BACKGROUND
I. Dependency History
In October 2020, Riverside County Department of Public Social Services (DPSS) received a referral alleging that J.D. had run away from her mother's home after altercations between family members, and Sophia C. (Mother) was refusing to allow her to return. Justin D. (Father) lived in Fresno and was unwilling to have J.D. in his home. DPSS investigated and discovered that Mother had dropped J.D. off at a shelter, but the shelter had discharged J.D. for fighting and failing to follow directives.
The Riverside County juvenile court sustained the allegations in the dependency petition concerning J.D., adjudged her a dependent of the court, and ordered reunification services for her parents. In December 2021, the court terminated reunification services but did not set a Welfare and Institutions Code section 366.26 hearing. (Unlabeled statutory citations are to the Welfare and Institutions Code.) Instead, the court found a compelling reason that such a hearing was not in J.D.'s best interests, because she was not a proper subject for adoption and there was no adult willing and able to assume legal guardianship of her. The court authorized placement in a short-term residential therapeutic program.
II. Detention and Jurisdiction in the Present Case
In October 2022, 16-year-old J.D. was placed in a short-term residential therapeutic program in San Bernardino County. She was arrested after arguing with another girl. J.D. held a knife toward the girl's neck, laughed, and said, "'I am not going to cut you and end up in jail.'" She then "'skid'" the knife across her finger. The girl was scared and thought J.D. might harm or kill her. J.D. had threatened to kill her in the past.
A few days later, the People filed a petition under section 602 alleging that J.D. had committed assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). According to the probation officer's detention report, J.D. had bipolar disorder and anxiety and was prescribed lithium and Prozac, but she was not medication compliant. She admitted using marijuana and alcohol. The juvenile court in San Bernardino County detained J.D. in the juvenile hall pending further proceedings.
In November 2022, the People moved to dismiss the count alleging assault with a deadly weapon and to add a count alleging criminal threats (Pen. Code, § 422, subd. (a)). The court granted that motion, J.D. admitted the count alleging criminal threats, and the court found the allegations of the petition to be true. The court also found that J.D. was described by section 602. The probation department moved to transfer J.D.'s case to Riverside County, and the court granted the motion. The Riverside County juvenile court accepted the transfer several days later.
III. Section 241.1 Report
J.D. was moved to the Alan M. Crogan Youth Treatment and Education Center (Crogan) in Riverside County, which houses youths who are in juvenile hall detention, SYTF commitments, and YTEC commitments. The juvenile court referred the matter for a section 241.1 report and recommendation. (See § 241.1, subd. (e) [probation department and child welfare agency may jointly assess the child and recommend whether "the child be designated as a dual status child, allowing the child to be simultaneously a dependent child and a ward of the court"].) DPSS and the probation department jointly recommended that the court designate J.D. a dual status youth, designate the probation department as the lead agency, and designate the delinquency court as the lead court.
According to J.D.'s social worker, J.D. had been in 11 placements throughout her dependency case (two resource family homes and nine group homes, including short-term residential therapeutic programs). She had absconded from her placements on a daily basis. She met with adult males, encouraged younger group home residents to leave with her, and was under the influence when she returned. And because she returned with money, clothes, and other items, the social worker suspected that she was the victim of commercial sexual exploitation. Another common concern in her placements was her bullying behavior. The youth and staff at the group homes reportedly feared her. J.D. rarely showed remorse or accepted responsibility for her behavior, and she angered easily. She also did not attend school on a consistent basis.
When interviewed for the section 241.1 report, J.D. admitted that she had a history of leaving her placement without permission. She denied doing it every day but estimated that she had absconded roughly 150 times over the past two years. She was gone for several hours at a time, and a "couple" of times she was gone overnight. She would sometimes go to Los Angeles, where she had been stranded on two occasions. On one of those occasions, she was stranded after going out with a 19-year-old male (her boyfriend's friend). The male wanted to have intercourse with her, and she refused because she did not want to cheat on her boyfriend.
J.D. reported being the victim of emotional, physical, and sexual abuse. Her boyfriend abused her physically and emotionally, but she declined to provide further details. She said only that her boyfriend had experienced trauma all of his life and had "'problems that can't be fixed.'" She confirmed that she had bipolar disorder and anxiety, but she was now taking her medication. She had engaged in self-harm in the past, and she recalled being placed on an involuntary psychiatric hold four times.
J.D. said that she was introduced to marijuana at her first group home when she was 14 years old. She smoked it every day in placement. She denied being addicted to it and insisted that she could stop whenever she wanted. She was also introduced to alcohol at one of the group homes, but she did not like to drink.
Mother stated that she wanted J.D. to stabilize and be safe, and she supported J.D.'s detention in the juvenile hall. Mother was concerned about J.D.'s determination to be with her boyfriend. The two youths had a violent relationship, and there was a restraining order protecting J.D. from him. J.D. told Mother that she was going to look for her boyfriend when she was released from the juvenile hall. When the social worker asked J.D. whether that was true, J.D. responded, "'Why are you guys trying to keep us apart, he's going to be 18 years old and we can be together. I love that boy.'"
Father also supported J.D.'s detention and was concerned for her safety. He stated that J.D. would run away again if she were released from the juvenile hall, because "'she wants to do what she wants to do.'" He recalled an incident in which J.D.'s boyfriend choked and slapped her.
Given J.D.'s significant history of leaving placements, the seriousness of her offense, the escalation of violence against her peers, and her possible sexual exploitation, the probation officer opined that a secured setting would best serve J.D.'s interests. The officer stated that a wardship commitment to the YTEC would allow J.D. to receive individual counseling, receive substance abuse counseling, attend an anger management program, and attend school to earn high school credits.
IV. Disposition Memoranda and Related Reports
The probation officer's disposition memorandum reported that J.D. had attended a local high school until October 2022. She had poor attendance, zero high school credits, and a grade point average of 0.00.
The disposition memorandum also summarized incident reports from J.D.'s last group home placement before her arrest. In September 2022, J.D. was overheard telling another youth that she should not wear a particular outfit because it "would not make any money." In October, J.D. told the group home staff that when she absconded with another girl, that girl's boyfriend picked them up. The boyfriend was 30 to 40 years old. He took them to a motel and asked both girls to engage in sex acts with him, but J.D. refused. That same month, J.D. screamed at and physically attacked another girl in the group home. A second girl told staff that J.D. was threatening her, bullying her, and making her "do things she does not want to do." A third girl reported that "she does things for" J.D. because J.D. threatened her with physical harm. Since J.D.'s transfer to the Riverside County juvenile hall, she had no reported behavioral issues.
According to the disposition memorandum, Mother was not surprised by J.D.'s behavior. Mother had initially said that she wanted to relinquish her parental rights in the dependency case because of J.D.'s aggressive behavior at home. J.D. had threatened to kill her younger brother. J.D. was "out of control" when she lived with Mother and refused to follow Mother's directives. She smoked marijuana, left home without permission, associated with older men, destroyed property, and committed self-harm. J.D. used applications like Meetup to socialize with men. Mother suspected that during one incident when J.D. and her boyfriend ran away together, her boyfriend made her "'do things'" to earn money for them. Mother believed that J.D. would continue to abscond from placement and seek out her boyfriend unless she was in a secure, locked facility where she was medically stabilized.
Like the section 241.1 report, the disposition memorandum reported that J.D. ran away from 11 prior placements on a daily basis; encouraged younger residents to go with her; returned under the influence and with money, clothes, and other items; bullied other residents and staff; and intended to run away again if released from the juvenile hall. The memorandum also reiterated the probation officer's recommendation that the court declare a wardship and that J.D. be committed to the YTEC. The probation officer noted that although this was J.D.'s first delinquency petition, it was her second referral to probation, and her violent outbursts had progressed from threatening family members to targeting youths in her group homes. The probation officer noted that she had considered a short-term residential therapeutic program, but given J.D.'s history of running away, the seriousness of the offense, the escalation of violence, and the evidence of sexual exploitation, a more secure setting would best serve J.D.'s interests.
The court continued the disposition hearing and ordered a child and family team meeting (§ 16501, subd. (a)(4), (5)), a qualified individual assessment (§§ 16501, subd. (l)(1), 4096, subd. (g)), and screening by the interagency placement committee (§ 4096). During the child and family team meeting, J.D. reported that she was medication compliant, was engaging in substance abuse treatment, and had earned over 30 high school credits while in custody.
The interagency placement committee determined that J.D. satisfied one of the three eligibility criteria for placement in a short-term residential therapeutic program. Specifically, she met "the medical necessity criteria for Medi-Cal specialty mental health services." (§ 4096, subd. (e)(1)(A).) The committee also identified J.D.'s treatment needs as individual counseling, family counseling, behavioral health services, drug treatment, anger management, victim awareness, impulse control, peer issues, physical abuse treatment, sexual abuse treatment, independent living program services, medication evaluation, medication management and monitoring, and credit recovery.
The report of the qualified individual recommended placement in a short-term residential therapeutic program that specialized in victims of commercial sexual exploitation. The qualified individual noted: "If [that] is not able to be met, or is unsuccessful, a referral for re-evaluation may need to be submitted, and would likely result in a recommendation for YTEC."
The probation officer continued to recommend commitment to the YTEC, and J.D.'s social worker in the dependency case agreed. The probation officer noted that J.D.'s behavior appeared to be stabilizing, and the structured and secured setting at the juvenile hall seemed to have benefitted her.
J.D. filed a memorandum arguing that any commitment to the YTEC was unlawful because the county used the same facility as the SYTF, and J.D. had not committed an SYTF-eligible offense.
The court called but continued the contested disposition hearing several times so that screenings and reports could be completed. At two of those interim hearings, J.D. expressed concerns to the court about her safety at the juvenile hall.
J.D. first told the court that for the last 15 days, she had been constantly attacked. She said that other youths had thrown water at her and made "a lot of racial comments," and someone threatened to "jump[]" her that day. She also said that no one was getting in trouble or being disciplined. She explained: "I've already been screened for a group home, and it's like you guys keep like making these court dates over and over, and you guys keep sending me back to where I don't feel safe, and it just makes no sense to me." The probation officer stated that the department intended to discuss segregation with the unit supervisor, and the officer said that there was also a grievance procedure and behavioral health referral available. The court ordered the probation department to investigate and follow up on the issues raised by J.D.
At the next hearing six days later, J.D. reiterated her concerns. She told the court again that she was being attacked constantly and that no one was being disciplined. She said that she did not feel safe and could not go to school. She also explained: "I got girls coming at me with like pencils and scissors, people speaking to me about my race. Just like, um, I can't walk out [of] my room without getting water thrown on me or something." J.D. said that she was not the only one being targeted and that a few of her friends were as well. J.D.'s counsel stated that he believed there was a "code green" in effect, meaning "issues between minors on a regular basis." The court told J.D. that she should be reporting any unsafe or threatening situation if she was not already, and the court directed her counsel to follow up on the safety issues.
V. Disposition Hearing
The contested disposition hearing took place in March 2023. J.D. called two witnesses: Elisa Judy, chief deputy probation officer who oversaw juvenile institutions, and Mike Villalba, the assistant division director at Crogan, the juvenile facility where J.D. was placed.
A. Evidence at the Hearing
In July 2022, the probation department decided to move all of the female youth in the county to the Crogan juvenile facility. Females who are detained, females committed to the YTEC, and females committed to the SYTF are housed in one unit. While they are housed together, all three of those populations receive distinct programming. The Board of State and Community Corrections gave the probation department permission to house the three female populations in one unit. The female unit at Crogan currently housed one youth committed to the SYTF, five youths committed to the YTEC, and between five and nine youths in juvenile hall detention. The SYTF youth had not been the aggressor in any behavioral incidents. Crogan also housed the male youths committed to the YTEC and those committed to the SYTF, but those male populations were in different units and separated from each other by concrete walls. Crogan housed 55 male youths in total.
The probation department based its decision to move all of the females to Crogan on the department's "current resources" and how "best to serve the population." The chief probation officer issued a memorandum about the decision, which stated: "In [an] effort to more efficiently utilize the bed space between the department's three detention facilities and to reduce the need for overtime, a plan has been developed to realign detainee classification." The department wanted to reduce overtime work because it wanted the staff to be "100 percent when they are working with our youth to keep our youth as safe as possible." Staff who work overtime become tired and perhaps not as quick to respond as usual, so decreasing overtime had a direct impact on the department's ability to serve the youth. The department looked at what other counties across the state were doing and found that they were putting youths in detention, youths committed to the YTEC, and youths committed to the SYTF in the same facility or the same unit, so Riverside County followed suit.
YTEC programming includes the availability of furloughs and off-ground activities. Covid-19 had been a setback for off-ground activities, but the probation department was "opening those opportunities back up." For instance, the male youths had recently traveled to a local university for the experience of being on a college campus. When J.D.'s counsel asked Judy whether there were similar activities for females, Judy replied that Villalba could answer that more specifically, but "the intent [was] they should be mirrored programs," so off-ground activities for females would be happening as well. When counsel asked Villalba whether the female population was currently permitted to leave for any "furlough transition programs," Villalba responded, "At this time no." Counsel also asked Villalba if that was because of a staff shortage, and he replied, "Not necessarily."
B. Court's Ruling
The court stated that it had considered all of the testimony, disposition memoranda, and reports, including the qualified individual's report. The court explained that it was inclined to follow the probation department's recommendation. It therefore adjudged J.D. a ward of the court and committed her to the YTEC. It also designated her a dual status youth and designated the probation department as the lead agency and the delinquency court as the lead court.
DISCUSSION
I. Section 875 Claim
J.D. argues that the court effectively committed her to the county SYTF, but her commitment to an SYTF is unlawful under section 875. The argument lacks merit.
Until recently, the state 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 (Miguel C.).) In 2020, the Legislature overhauled the juvenile court law to effect the eventual closure of the DJJ and move the jurisdiction of DJJ-committed youth to local county jurisdiction. (Stats. 2020, ch. 337, § 1(b).) The Legislature wanted to "ensure that justice-involved youth are closer to their families and communities and receive age-appropriate treatment." (Ibid.) The new legislation prohibited commitments to the DJJ in most cases as of July 1, 2021, and the legislation stated an intent "to establish a separate dispositional track for higher-need youth." (Stats. 2020, ch. 337, § 30; former § 736.5, subds. (b), (c), (e); Miguel C., supra, 69 Cal.App.5th at p. 907.)
In 2021, the Legislature established that track for higher-need youth: It added section 875 so that counties could establish SYTF's for wards who previously would have been committed to the DJJ. (Legis. Counsel's Dig., Sen. Bill No. 92 (2021-2022 Reg. Sess.); Stats. 2021, ch. 18, § 12.) The Legislature also closed the DJJ effective June 30, 2023. (§ 736.5, subd. (e); Stats. 2021, ch. 18, § 10.)
Section 875 authorizes commitment to an SYTF only if certain conditions are met. (§ 875, subd. (a).) As relevant here, the wardship must be based on an offense listed in subdivision (b) of section 707. (§ 875, subd. (a)(1).) Subdivision (b) of section 707 does not list criminal threats (Pen. Code, § 422), the offense on which J.D.'s wardship is based.
Section 875 permits an SYTF to be "a stand-alone facility" or "a unit or portion of an existing county juvenile facility, including a juvenile hall or probation camp, that is configured and programmed" to serve the SYTF population. (§ 875, subd. (g)(2).) In addition, section 875 requires the Board of State and Community Corrections to review existing juvenile facility standards and modify or add standards for SYTF's. (§ 875, subd. (g)(3).) Those "standards shall specify how the facility may be used to serve or to separate juveniles," other than those committed to an SYTF, "who may also be detained in or committed to the facility or to some portion of the facility." (Ibid.)
The statute requires the Board of State and Community Corrections to conduct its review and establish standards for SYTF's by July 1, 2023. (§ 875, subd. (g)(3).) The board does not appear to have completed its work yet. (See <https://www.bscc.ca.gov/ s_djjrealignment/> ["The BSCC's Juvenile Regulations Revision Executive Steering Committee is reviewing Title 15 and 24 regulations for juvenile detention facilities. Regulations related to SYTF facilities are being reviewed by an SYTF Subcommittee"] [as of Nov. 2, 2023].)
J.D.'s argument presents a question of statutory interpretation subject to de novo review. (In re E.F. (2021) 11 Cal.5th 320, 326.) In construing a statute, we ascertain the Legislature's intent "'by examining the statute's words, giving them a plain and commonsense meaning.'" (In re Greg F. (2012) 55 Cal.4th 393, 406.)
J.D. argues that she did not commit an SYTF-eligible offense, but the court effectively committed her to the county SYTF, because she is housed in the same unit as the SYTF youth. She asserts that the plain language of section 875 requires an SYTF to be a separate physical space. Specifically, she argues that the plain meaning of "unit or portion" (§ 875, subd. (g)(2)) is a separate space.
But those terms do not preclude counties from housing SYTF youth in the same space as other youth. Subdivision (g)(2) of section 875 states only that an SYTF may be a portion of an existing facility, so long as that portion is configured and programmed to serve SYTF youth. And subdivision (g)(3) contemplates that the same physical space may house SYTF youths and non-SYTF youths. That provision directs the Board of State and Community Corrections to develop standards specifying how the facility may be used to serve or separate non-SYTF youths who are also housed in the facility or some portion of the facility. (§ 875, subd. (g)(3).) The plain language of the statute does not require that the SYTF and non-SYTF youths be separated by walls, contrary to J.D.'s suggestion.
J.D. also argues that the legislative purpose of "related statutes" supports her argument. She relies on section 875.5, subdivision (a), which concerns petitions to extend the detention of wards who are claimed to be physically dangerous to the public because of a physical or mental condition or disorder. (§ 1800, subd. (a).) The provision states that the Legislature intends a set of existing statutes to govern the process for extending the detention of SYTF wards, pending the development of a process specific to SYTF wards. (§ 875.5, subd. (a); see § 1800 et seq.) According to J.D., the intent stated in subdivision (a) of section 875.5 means that the Legislature wanted to protect people from physically dangerous SYTF wards, and it follows that such youth must be physically separated from others, including non-SYTF youth. The argument fails to persuade. Section 875.5 contemplates the possibility that some wards committed to an SYTF might be subject to extended detention because they have been found to be physically dangerous to the public. But there are measures in place to protect other youths in the same facility. In particular, to protect others in the probation department's custody, the juvenile court has the power (1) to refer the physically dangerous youth "for evaluation for civil commitment" or (2) "to transfer the custody of any person over 25 years of age to the county adult probation authorities for placement in an appropriate institution." (§ 876, subd. (f).) Accordingly, the fact that a process exists for extending the detention of physically dangerous SYTF wards does not evidence a legislative intent to segregate all SYTF wards from other wards.
For all of these reasons, we reject J.D.'s argument that her commitment was unlawful under section 875.
II. Equal Protection Claim
J.D. argues that her commitment to the combined YTEC and SYTF unit violates her right to equal protection of the laws under the federal and state constitutions. She asserts that the probation department subjects female youths to differential treatment on the basis of their gender because male YTEC youths and male SYTF youths are housed in separate units. She further contends that she must endure the highest security and the least freedom of movement, including no furloughs or transition programs, simply because she is female. We reject the argument because J.D. forfeited it by failing to raise it in the trial court.
"'"The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment."' [Citation.] 'The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.' [Citations.] This initial inquiry is not whether persons are similarly situated for all purposes, but 'whether they are similarly situated for purposes of the law challenged.'" (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) "[A]n equal protection claim cannot succeed, and does not require further analysis, unless there is some showing that the two groups are sufficiently similar with respect to the purpose of the law in question." (People v. Nguyen (1997) 54 Cal.App.4th 705, 714.)
"The next step of an equal protection analysis asks whether the disparate treatment of two similarly situated groups is justified by a constitutionally sufficient state interest. [Citation.] Varying levels of judicial scrutiny apply depending on the type of claim." (Conservatorship of Eric B. (2022) 12 Cal.5th 1085, 1107.)
Under the state Constitution, courts apply strict scrutiny to gender-based disparate treatment. (Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 17; Molar v. Gates (1979) 98 Cal.App.3d 1, 13-14 (Molar).) The state must show that (1) it has a compelling interest that justifies the gender-based classification and (2) the classification is necessary to further the compelling interest. (People v. Contreras (2018) 4 Cal.5th 349, 361-362.) The classification must be "narrowly drawn to achieve the goal by the least restrictive means possible." (Board of Supervisors v. Local Agency Formation Com. (1992) 3 Cal.4th 903, 913.)
Under the federal Constitution, courts apply an intermediate level of scrutiny to gender-based disparate treatment. (Clark v. Jeter (1988) 486 U.S. 456, 461.) The state must show that the gender-based "'classification serves "important governmental objectives and that the discriminatory means employed" are "substantially related to the achievement of those objectives."'" (United States v. Virginia (1996) 518 U.S. 515, 533.) The proffered justification for the disparate treatment "must be genuine, not hypothesized or invented post hoc in response to litigation." (Ibid.)
The failure to raise an equal protection claim in the trial court generally forfeits the claim on appeal. (People v. Alexander (2010) 49 Cal.4th 846, 880, fn. 14; People v. Rogers (2006) 39 Cal.4th 826, 854.) Appellate courts have discretion to consider forfeited constitutional claims when "'the issue presented is a "pure question of law" turning on undisputed facts.'" (People v. Heard (2022) 83 Cal.App.5th 608, 626-627.)
J.D. failed to raise her equal protection claim in the juvenile court. Her disposition memorandum did not raise the argument, nor did she raise it orally at the disposition hearing. J.D. requests that we nevertheless exercise our discretion to consider the claim, arguing that the evidence concerning the disparate treatment of male and female youths was undisputed.
We decline to consider the claim, because the record is undeveloped and the material facts are not undisputed. J.D. offered the evidence concerning the housing of youths at Crogan in an attempt to show that her commitment to the YTEC there would be unlawful under section 875. But because she never asserted an equal protection challenge, the People were not on notice that they had to make a showing under the strict scrutiny and intermediate scrutiny tests. Those tests are demanding. For instance, under the strict scrutiny test, the People would have to show that the probation department's practices were narrowly drawn to achieve the proffered compelling interest by the least restrictive means possible. In evaluating the issue, the court may consider evidence of other possible means. (See, e.g., In re Morales (2013) 212 Cal.App.4th 1410, 1421-1422 [after five-day evidentiary hearing, trial court found prison's race-based practices were not narrowly tailored to achieve asserted compelling interest, citing in part evidence of race-neutral means].) And under the intermediate scrutiny test for federal claims, the People would have to proffer an important governmental objective that is genuine, not hypothetical, and not invented post hoc in response to litigation. But because the People never had the opportunity to carry their burden under the relevant tests, we have an inadequate record on which to evaluate an equal protection claim. By contrast, the case on which J.D. relies for her equal protection argument involved a petition for writ of mandate challenging the alleged disparate treatment of female inmates. (Molar v. Gates (1979) 98 Cal.App.3d 1, 6.) There, the trial court adjudicated the equal protection claim after issuing an order to show cause and holding an evidentiary hearing on the merits of the claim. (Id. at pp. 6-7, 9.) That kind of record does not exist here.
The required showings under strict and intermediate scrutiny stand in contrast to the far less demanding requirements of rational basis review. Under that test, courts may engage in "'"rational speculation"'" about the justifications for disparate treatment (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881), and it is irrelevant whether the conceivable justifications actually motivated the government (Stuard v. Stuard (2016) 244 Cal.App.4th 768, 780). In addition, the court's rational speculation about the government's justifications need not have any foundation in the record or be supported by empirical data. (Johnson v. Department of Justice, supra, at p. 881; Stuard v. Stuard, supra, at p. 780.)
J.D.'s assertion that her equal protection challenge turns on undisputed facts illustrates the problem. She suggests that undisputed evidence showed that female youths do not have access to furlough or transition programs, while male youths do. But the combined testimony of Judy and Villalba showed only that the programs were beginning to reopen after the Covid-19 pandemic, there were supposed to be "mirrored" programs for males and females, and only males were getting those opportunities at the moment. There was no evidence about why that was the case or when that would change. And the People had no reason to litigate those issues in the absence of an equal protection claim, given that J.D.'s claim about the unlawfulness of a YTEC commitment concerned commingling populations in a physical space.
Moreover, even if we were to consider the equal protection claim on the merits, it would fail at the first step of the analysis-J.D. makes no attempt to show that female youths detained in or committed to Crogan are similarly situated to male youths detained in or committed to a county juvenile facility. (People v. Nguyen, supra, 54 Cal.App.4th at p. 714.)
For these reasons, we reject J.D.'s equal protection challenge.
III. YTEC Commitment Not an Abuse of Discretion
J.D. argues that the record does not contain substantial evidence showing that the YTEC would be a safe and effective placement, particularly in light of the qualified individual's recommendation for a short-term residential therapeutic program and evidence that she was unsafe at the YTEC. She contends that because the evidence was insufficient, the court abused its discretion by placing her in such a program. We disagree.
"[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 .) "The statutory scheme governing juvenile delinquency is designed to give the court 'maximum flexibility to craft suitable orders aimed at rehabilitating the particular ward before it.' [Citation.] Flexibility is the hallmark of juvenile court law ...." (Ibid.) "[T]he court has broad discretion to choose probation and/or various forms of custodial confinement ...." (In re Eddie M. (2003) 31 Cal.4th 480, 507.) The options available to the court include commitment to a local detention or treatment facility like a juvenile home, ranch, camp, forestry camp, or juvenile hall. (§ 730, subd. (a)(1); § 202, subd. (e)(4); Seiser &Kumli, 1 Cal. Juvenile Courts Practice &Procedure (2023) § 3.93[6].) The YTEC program in Riverside County appears to be a type of juvenile home commitment authorized by section 730. YTEC is not a term defined by statute, unlike a short-term residential therapeutic program (§ 727, subd. (a)(4)(E)) or a SYTF (§ 875, subd. (a)).
We review the juvenile court's commitment decision for abuse of discretion. (In re Oscar A. (2013) 217 Cal.App.4th 750, 755.) We review the court's underlying factual findings for substantial evidence. (Ibid.) "'"In determining whether there was substantial evidence to support the commitment, we must examine the record presented at the disposition hearing in light of the purposes of the Juvenile Court Law."'" (Id. at p. 756.) "The purpose of juvenile delinquency laws is 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, quoting § 202, subds. (a), (b), (d).)
The court did not abuse its discretion by committing J.D. to the YTEC. Ample evidence supports that decision. J.D. ran away on a daily basis from her numerous placements, including some short-term residential therapeutic programs. She would return under the influence or with money, clothes, or other items, suggesting that she was the victim of commercial sexual exploitation. She also was overheard telling another youth that the youth should not wear certain clothing because it would not make any money. She met with adult males who asked her for intercourse or sex acts. Mother reported that J.D. intended to find her boyfriend as soon as she was released from Crogan. When the social worker asked J.D. about that, J.D. questioned why the worker was trying to keep her away from her boyfriend. At the same time, J.D. acknowledged that her boyfriend was physically and emotionally abusive. J.D.'s behavior toward others was also problematic. Mother said that she had threatened to kill her younger brother. She bullied other youth in her placements, and the other youth and staff feared her. She threatened to harm or kill at least two other youths, including the victim of the criminal threats offense. In addition, J.D. used marijuana every day in her placements, and she was not taking the medications prescribed to treat her bipolar disorder and anxiety. She had a history of committing self-harm. And she had poor school attendance and had earned zero high school credits at the time of her offense. However, since J.D. had been detained at Crogan, she was medication compliant, was engaged in substance abuse counseling, and had earned 30 high school credits. Her behavior also appeared to be stabilizing. She had no reports of behavioral issues. All of that evidence showed that a secured setting like a YTEC, where she could not easily abscond or harm others but still get treatment and attend school, served J.D.'s best interests.
J.D. suggests that the court abused its discretion because the qualified individual recommended a short-term residential therapeutic program, but the court instead relied on an "unsupported probation report." The court was not required to adopt the qualified individual's recommendation, and the probation officer's recommendation for a YTEC commitment was not unsupported, in light of all of the evidence just discussed.
J.D. relies heavily on Miguel C. for a contrary conclusion, but that case is inapposite. Miguel C. involved a DJJ commitment that required a showing of (1) "probable benefit" to the youth and (2) the "ineffectiveness or inappropriateness of less restrictive alternatives." (Miguel C., supra, 69 Cal.App.5th at p. 908.) The court framed the issue before it as follows: "[W]hat constitutes substantial evidence to support a DJJ commitment when the minor has submitted reliable evidence that such a placement would undermine the minor's specific rehabilitative needs, and where the minor's own history does not demonstrate that less restrictive options would not work?" (Id. at p. 902.) The expert testimony showed that committing Miguel to the DJJ would likely ensure his entrenchment in gang culture and undermine efforts to treat his substance abuse disorder, which led to his only episode of violent criminal behavior. (Ibid.) The People introduced no responsive evidence beyond identifying the substance abuse treatment that the DJJ offered. (Ibid.) Under those circumstances, the Miguel C. court held that the juvenile court abused its discretion. (Id. at p. 911.) The court concluded that "where a minor presents evidence suggesting that a DJJ placement would be harmful for reasons specific to the minor, the People must provide some contrary evidence that would enable the juvenile court to make a comparative analysis of the placement options before it concludes the minor will probably benefit from DJJ, and that less restrictive options would be ineffective or inappropriate." (Id. at p. 902.) The court thus reversed for a new dispositional hearing at which the People would have the opportunity to present additional evidence supporting their position. (Id. at p. 911.)
This case is materially distinguishable. First, there was no reliable expert testimony here that a YTEC commitment would be harmful to J.D. The qualified individual recommended a short-term residential therapeutic program, but they did not opine that a YTEC commitment would be harmful. Instead, the qualified individual stated that if the initial recommendation were unsuccessful, then they would likely recommend a YTEC commitment.
Second, J.D.'s reliance on her own statements about safety concerns at Crogan is not persuasive. J.D.'s statements were not evidence offered at the disposition hearing, and there is no indication that her concerns were ongoing by that time. Before the disposition hearing, the probation officer said that the department intended to discuss the issue with the unit supervisor, and the court ordered the probation department to investigate and follow up on the issue. The court also directed J.D.'s counsel to follow up. No one raised the safety concerns at the disposition hearing. Moreover, even if J.D. had testified to safety concerns at the disposition hearing, we do not know whether the court would have found that testimony reliable. The evidence showed that she was eager to be reunited with her boyfriend and intended to seek him out at the first available opportunity. Given her history of running away, one way of achieving her goal would be to convince the court that she was unsafe at Crogan and needed to be in a less restrictive setting.
Third, unlike the youth in Miguel C., supra, 69 Cal.App.5th 899, J.D. had a history in the juvenile court system demonstrating that the less restrictive option on the table would be ineffective or inappropriate. We have already discussed that evidence and need not repeat the discussion here.
J.D. asserts that the juvenile court's dispositional order had to comply with two statutory standards, subdivision (a) of section 727.1 and subdivision (e) of section 713. The standard in subdivision (e) of section 713 applies to any minor "who is determined by the court under Section 712 to be seriously emotionally disturbed, have a serious mental disorder, or have a developmental disability." (§ 713, subd. (a).) But the record does not include any determination by the court that J.D. is seriously emotionally disturbed, has a serious mental disorder, or has a developmental disability. Section 713 thus does not apply in this case. Section 727.1 applies if "the court orders the care, custody, and control of the minor to be under the supervision of the probation officer for foster care placement pursuant to subdivision (a) of Section 727." (§ 727.1, subd. (a).) Assuming that the YTEC commitment qualified as an order placing J.D. under the probation department's supervision for foster care placement, J.D. has not shown any error under section 727.1. The statute requires that the minor's placement be a "safe setting that is the least restrictive or most family-like, . . . consistent with the selection of the environment best suited to meet the minor's special needs and best interests." (§ 727.1, subd. (a).) J.D. argues that there was not substantial evidence the YTEC commitment "would address [her] needs and keep her safe." But all of the evidence just discussed (running away from less secure placements, using marijuana daily, failing to attend school, and being the victim of an abusive boyfriend and commercial sexual exploitation) showed that a less restrictive placement would not meet J.D.'s needs or keep her safe.
For all of these reasons, the court did not abuse its discretion by committing J.D. to the YTEC.
IV. Maximum Period of Confinement and Custody Credits
J.D. and the People agree that the court erred by failing to state her maximum period of confinement and her custody credits in the dispositional order. We concur.
If the juvenile court adjudges the minor a ward of the court and removes the minor from their parents' physical custody, then the wardship order must specify the maximum period of physical confinement, i.e., the middle term of imprisonment that could be imposed on an adult convicted of the same offense. (§§ 726, subd. (d)(1), 730, subd. (a)(2); In re Edward B. (2017) 10 Cal.App.5th 1228, 1238.) In addition, a "'minor is entitled to credit against his or her maximum term of confinement for the time spent in custody before the disposition hearing. [Citations.] It is the juvenile court's duty to calculate the number of days earned, and the court may not delegate that duty.'" (In re Edward B., supra, at p. 1238.)
At the disposition hearing, the court did not state J.D.'s maximum period of confinement or her custody credits. Neither did the dispositional minute order. Accordingly, we must remand the matter for the court to correct the dispositional order in both respects.
DISPOSITION
The juvenile court is directed to amend the March 9, 2023, dispositional order so that it specifies J.D.'s maximum period of confinement. In addition, the court is directed to calculate J.D.'s custody credits as of the date of the disposition hearing and amend the dispositional order so that it states those credits. In all other respects, the dispositional order is affirmed.
We concur: RAMIREZ P.J., MILLER J.