Opinion
C089191
09-12-2019
In re J.S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.S., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JV139409)
Minor J.S. admitted one count of robbery and a probation violation for assault with a firearm. Following a contested disposition hearing, the minor was adjudged a ward of the Sacramento County Juvenile Court and committed to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ). On appeal, the minor contends his DJJ commitment was an abuse of discretion because the trial court did not consider or explicitly explain why the available less restrictive alternative was an improper placement. We disagree and shall affirm the judgment.
I. BACKGROUND
Following an initial juvenile wardship petition and transfer for disposition and delinquency supervision from another county in March 2018, the Sacramento County District Attorney filed a petition under Welfare and Institutions Code section 602 in April 2018, charging the minor, age 14, with attempted robbery (Pen. Code, §§ 664/211), attempted carjacking (§§ 664/215, subd. (a)), and assault likely to produce great bodily injury (§ 245, subd. (a)(4)). The minor admitted the assault, and the court sustained the petition and adjudged him a ward of the court. The minor was then committed to the custody of his mother under the supervision of probation. He was ordered to serve 35 days in juvenile hall, with credit for time served, and to complete 10 days of juvenile work project.
Undesignated statutory references are to the Penal Code. --------
The district attorney filed a third petition against the minor in August 2018, alleging that he committed robbery (§ 211). A Welfare and Institutions Code section 777 violation of probation pursuant to Welfare and Institutions Code section 602, subdivision (a), was also filed, alleging unlawful discharge of a firearm in a grossly negligent manner (§ 246.3), possession of a concealed firearm (§ 29610), and unlawful carrying of a loaded firearm in public (§ 25850, subd. (a)). The court ordered the minor to be detained in juvenile hall.
In October 2018, the district attorney filed a second Welfare and Institutions Code section 777 violation of probation, alleging five counts of unlawfully discharging a firearm (§ 246.3.), five counts of unlawfully carrying a loaded firearm in public (§ 25850, subd. (a)), five counts of unlawfully carrying a concealed weapon (§ 29610), and two counts of unlawfully possessing a firearm (§ 29820, subd. (b)).
In November 2018, the district attorney filed a fourth petition against the minor alleging assault with a semiautomatic firearm (§ 245, subd. (b)), unlawful possession of a firearm (§ 29820, subd. (b)), and unlawful carrying of a loaded firearm in public (§ 25850, subd. (a)).
In January 2019, the district attorney filed an amended Welfare and Institutions Code section 777 violation of probation petition pursuant to Welfare and Institutions Code section 602, subdivision (a), consolidating the probation violations from August and October and the subsequent petition from November. The amended petition further alleged probation violations for assault with a firearm (§ 245, subd. (a)(2)), two counts of unlawful discharge of a firearm (§ 246.3), and one count of unlawful possession of a firearm (§ 29820, subd. (b)).
The minor admitted one count of the August 2018 petition for robbery (§ 211) and a probation violation of the January 2019 amended petition for assault with a firearm (§ 245, subd. (a)(2)). The court sustained the admitted charge and found the probation violation true. The remaining counts, petitions, and probation violations were dismissed with consideration. The maximum possible term of confinement was six years 10 months.
Prior to a contested disposition hearing, after an evaluation of the minor, the Interagency Placement Committee recommended a "Level B" out-of-state placement at Woodward Academy in Iowa. The minor underwent a psychological evaluation, and the evaluating doctor recommended that he be considered for an out-of-state Level B facility "far away from his home and community environments." Conversely, the probation department filed a social study report recommending that the minor be committed to DJJ for treatment and rehabilitative programs that address his behavioral and anger issues. The report noted that the minor was classified as a high security risk and was "involved in gang agitation" in the Sacramento County Juvenile Hall. The probation report listed the available treatment programs and services that would be of probable benefit to the minor. The report noted that the minor showed a "lack of empathy and remorse for the victims in the pending matter." Additionally, the report noted that he was at a high risk for reoffending based on his assessment. Finally, the report noted that because there were multiple offense reports of the minor using or handling a firearm, "there [wa]s a concern that the combination of anger and use/handle of firearms could result in a life changing event for himself and others in the community." The report concluded that a DJJ placement would be best able to rehabilitate the minor prior to reaching adulthood.
During a contested disposition hearing, the court adjudged the minor a continued ward of the court and committed him to DJJ. The court observed that if he was placed in a Level B facility, he would need to use "home passes" to return home and visit his family, whereas in a local DJJ facility, family could still visit him regularly. The court further observed that the minor "like[d] the adrenaline rush of handling guns" and was "handling them a lot." The court noted that the minor's youth weighed in favor of a Level B commitment, but the court expressed concern about his lack of empathy and remorse. The court observed, "It looks like you're doing these criminal things to impress your dad in prison, impress your friends for very immature reasons." The court found a DJJ commitment was in his best interest and that counseling would be more effective for him in that facility. Accordingly, the court adopted the findings and disposition recommendations of the report.
II. DISCUSSION
The minor contends the juvenile court abused its discretion when it committed him to DJJ because the commitment was not in his best interest and the court failed to seriously consider a less restrictive placement that would be more beneficial to him. In particular, he claims that the court failed to make a finding that a Level B placement would be an ineffective or inappropriate alternative. We are not persuaded.
Minors under the juvenile court's jurisdiction must receive "care, treatment, and guidance consistent with their best interest and the best interest of the public." (Welf. & Inst. Code, § 202, subd. (b).) "The decision of the juvenile court may be reversed on appeal only upon a showing that the court abused its discretion in committing a minor to [DJJ]. [Citations.] An appellate court will not lightly substitute its decision for that rendered by the juvenile court. We must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them. [Citations.] 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." (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.) Those purposes include the "protection and safety of the public" (Welf. & Inst. Code, § 202, subd. (a)); to that end, punishment is now recognized as a rehabilitative tool (Welf. & Inst. Code, § 202, subd. (b)). (See In re Michael D., supra, at p. 1396.) The juvenile court's commitment decision does not constitute an abuse of discretion where there is evidence in the record "demonstrate[ing] probable benefit to the minor from commitment . . . and that less restrictive alternatives would be ineffective or inappropriate." (In re George M. (1993) 14 Cal.App.4th 376, 379.)
The minor asserts that in determining his best interest, the juvenile court failed to adequately consider an alternative less restrictive placement. Not so. The record demonstrates that the juvenile court considered a less restrictive placement and did not abuse its discretion in rejecting it as ineffective or inappropriate. The minor had violated probation, leading to escalating dangerous criminal behavior involving guns. The court observed he also showed impulsivity in handling guns and a lack of empathy or remorse. Additionally, the probation social study report noted that the minor was classified as a high security risk and was "involved in gang agitation" during his stay at the juvenile hall. The probation report recommended DJJ as a more appropriate placement than a less secure Level B facility because the minor was at high risk for reoffending, lacked remorse, and had difficulty in managing his anger. It can reasonably be inferred from this evidence that a less secure facility would have been an inappropriate placement. In view of the totality of the evidence in the record, the juvenile court reasonably concluded that the minor's best chance at rehabilitation was the DJJ: "Ultimately I have to evaluate, not only what's in your best interest, which is absolutely to get the counseling, but where I believe that counseling will be more effective."
There was evidence in the record that the DJJ programs would provide the minor with extensive counseling in a highly structured, disciplined, and closely supervised environment. Such a restrictive environment was necessary both to ensure the minor's participation in the rehabilitative treatment program and to address the court's well-founded public safety concerns over the combination of the minor's impulsivity, interest in guns, and rapidly-escalating criminal behavior. "The purposes of juvenile wardship proceedings are twofold: to treat and rehabilitate the delinquent minor, and to protect the public from criminal conduct. [Citations.] The preservation of the safety and welfare of a state's citizenry is foremost among its government's interests . . . ." (In re Jose C. (2009) 45 Cal.4th 534, 555.)
While the minor cites two cases extensively to support his position, In re A.R. (2018) 24 Cal.App.5th 1076 and In re Carl N. (2008) 160 Cal.App.4th 423, both are inapposite. The minor cites these cases, which both upheld a more restrictive commitment on appeal, arguing that "[i]n In re A.R. and [In re ]Carl N., it was clear less restrictive alternatives were not effective and were inappropriate because the minors had been placed in less restrictive programs over a half a dozen times, and both minors continued to re-offend." The minor's implied argument is that a DJJ placement is only warranted when less restrictive programs have failed. The California Supreme Court has expressly rejected this argument, reasoning that a court does not "necessarily abuse its discretion by ordering the most restrictive placement before other options have been tried." (In re Eddie M. (2003) 31 Cal.4th 480, 507.) Indeed, as we have explained ante, there was sufficient evidence in the record to support the minor's commitment to DJJ before trying less restrictive placements.
A minor does not show error on appeal simply by asserting that the juvenile court could have ordered a less restrictive placement. Rather, the minor must affirmatively show that the court abused its discretion in its decision. (In re Michael D., supra, 188 Cal.App.3d at p. 1395.) Here, the minor has failed to make this showing. Accordingly, the court did not err in rejecting the less restrictive placement.
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
MAURO, J.