Opinion
F078905
10-24-2019
In re M.F., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. M.F., Defendant and Appellant.
Robert McLaughlin, 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, Carlos A. Martinez and Marcia A. Fay, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 15CEJ600408-2V3, 15CEJ600408-1V6)
OPINION
THE COURT APPEAL from orders of the Superior Court of Fresno County. Gregory T. Fain, Judge. Robert McLaughlin, 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, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Peña, J.
-ooOoo-
Minor M.F. contends on appeal the juvenile court abused its discretion when it committed him to the Department of Juvenile Justice (DJJ) because the record lacks substantial evidence of both a probable benefit to minor at DJJ and the inappropriateness or ineffectiveness of less restrictive alternatives. We affirm.
We note that "DJJ is also known as the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF). DJJ/DJF is the current name of the former California Youth Authority. [Citation.] The terms DJJ and DJF are used interchangeably in the case law." (In re N.C. (2019) 39 Cal.App.5th. 81, 85, fn. 3.)
BACKGROUND
On June 22, 2015, 13-year-old minor drove a stolen vehicle and nearly hit a pedestrian. He admitted stealing the vehicle from a parking lot using a shaved key a friend had given him.
On June 24, 2015, a juvenile wardship petition was filed pursuant to Welfare and Institutions Code section 602, alleging minor had committed felony unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a); count 1), felony receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)), and misdemeanor possession of burglar's tools (§ 466).
All statutory references are to the Penal Code unless otherwise noted.
On July 1, 2015, minor admitted count 1 and the remaining counts were dismissed.
At the dispositional hearing on July 15, 2015, the juvenile court declared minor a ward of the court and placed him on electric monitoring in his mother's custody.
On October 15, 2015, a petition for modification (Welf. & Inst. Code, § 777) was filed, alleging minor had violated his curfew, possessed gang clothing, associated with known gang members, and failed to attend school after being suspended for being under the influence of marijuana and challenging another student to a gang-related fight.
On October 16, 2015, minor admitted the allegations.
At the dispositional hearing on October 30, 2015, the juvenile court placed minor in the Pre-Adolescent Program at the Juvenile Justice Campus (JJC) for 63 days.
On December 31, 2015, minor was released from JJC to his mother's custody.
On February 16, 2016, a petition for modification (Welf. & Inst. Code, § 777) was filed, alleging minor had violated his curfew, failed to attend school, and promoted gangs by tagging "VBS Bulldogs" on a school desk.
On February 17, 2016, minor admitted violating curfew and failing to attend school.
At the dispositional hearing on March 2, 2016, the juvenile court committed minor to JJC for 40 days.
On April 10, 2016, minor was released from JJC to his mother's custody.
On June 10, 2016, a petition for modification (Welf. & Inst. Code, § 777) was filed, alleging minor had violated his electronic monitoring program, failed to obey lawful directives, violated his curfew, and tested positive for marijuana.
On June 18, 2016, minor, now 14 years old, approached a couple in an apartment complex parking lot. Minor pointed a semi-automatic handgun at them and demanded money. The man told his wife to run to their apartment and he ran in another direction and jumped a fence.
About 30 minutes later, minor approached two other people sitting outside a house. He asked them for a dollar. One person told minor that he had a dollar but did not want to give it to him. Minor then asked for gum and the person said he did not have any. Minor suddenly took out a revolver, cocked the hammer back, and put it to the side of the person's head. Minor demanded the person's cell phone and wallet, and he complied, fearing for his life. As minor continued pointing the gun at the person's head, minor asked the other person if he had a cell phone. The first person told minor the other person did not speak English and did not have a wallet or cell phone. Minor walked away. Officers found the wallet in the middle of the road and found minor a short distance away with the cell phone and cash. Minor claimed he had bought the cell phone from the person for $10.
On June 21, 2016, a juvenile wardship petition was filed pursuant to Welfare and Institutions Code section 602, alleging minor had committed two counts of felony attempted second degree robbery (§§ 211, 664; counts 1 & 2), felony second degree robbery (§ 211; count 3), felony assault with a firearm (§ 245, subd. (a)(2); count 4), and misdemeanor receiving stolen property (§ 496, subd. (a)). As to counts 1, 2, and 3, the petition alleged minor personally used a firearm in the commission of the offenses (§ 12022.53, subd. (b)).
On August 4, 2016, minor admitted count 3 and the firearm allegation. The remaining counts and allegations were dismissed.
The probation officer recommended minor be committed to DJJ because of the escalation of his offenses from vehicle theft to armed robbery despite his having been given local opportunities for rehabilitation.
At the dispositional hearing on September 8, 2016, the juvenile court committed minor to JJC for 365 days, with a maximum period of confinement of 15 years eight months.
On September 7, 2017, minor, now 15 years old, was released to his mother's custody.
On January 30, 2018, a petition for modification (Welf. & Inst. Code, § 777) was filed, alleging minor had violated his curfew, used alcohol, driven a vehicle while not properly licensed and insured, and used force or violence.
On February 8, 2018, minor admitted the allegations.
At the dispositional hearing on February 26, 2018, the juvenile court committed minor to the Substance Abuse Unit at JJC for 180 days.
On August 24, 2018, minor was released to his mother's custody.
On November 8, 2018, a petition for modification (Welf. & Inst. Code, § 777) was filed, alleging minor had failed to enroll in treatment, possessed stolen property, driven a vehicle while not properly licensed and insured, and failed to obey laws.
On November 19, 2018, minor admitted failing to enroll in treatment, driving a vehicle while not properly licensed and insured, and failing to obey laws.
At the dispositional hearing on January 8, 2019, the juvenile court committed minor to the New Horizons Program at JJC for 365 days.
On January 22, 2019, at JJC, minor was the aggressor in a fight with a minor victim. Minor walked into a classroom where he did not belong, sat in the back, and waited for the victim to arrive. Then minor approached the seated victim and started punching him in the face. The victim stood up, returned punches, and wrapped his arms around minor. When an officer yelled, " 'Yard Check,' " everyone complied except minor and the victim. The officer grabbed minor from the back and pulled him away from the victim.
Minor told the probation officer his emotions had taken over because the victim had been " 'mean mugging' " him. Minor said when he was not in custody, he had issues with some of the victim's friends. Minor tried to stay away from the victim, but he continued to see him. Minor would get upset and he knew the fight "would eventually happen." He said "he wanted to get the fight out of the way early on his commitment so he didn't have to do it later. [H]e planned on programming and doing well after the fight." Minor said he wanted to stay at JJC but would prefer being in the general commitment pod rather than in the New Horizons Program. He said he was "not trying to be violent." His violations were "not as bad as before. [He was] just getting locked up on violations, not robberies."
On January 30, 2019, a petition for modification (Welf. & Inst. Code, § 777) was filed, alleging minor had used force or violence.
On January 31, 2019, minor admitted the allegation.
On February 15, 2019, the probation officer filed a dispositional report and recommended a DJJ commitment with a maximum term of confinement of 15 years eight months. In her report, the officer explained in detail the services minor could receive at DJJ:
"On February 12, 2019, the minor's case was screened with [DJJ] Intake Consultant Michael Farmer. Agent Farmer stated the minor would be a Category Four offender, with an eligibility for discharge being two years from acceptance at DJJ. The Court would have jurisdiction until age 25.
"If committed to DJJ, the minor would initially receive an assessment at their facility, which includes psychological testing, a medical evaluation and psychosocial testing. Additionally, the minor's strengths, weaknesses and risk factors would be determined, and an individualized treatment program would be developed. CounterPoint is a 33-session cognitive behavioral program for male offenders assessed as presenting a greater likelihood of re-offending. This program will provide the minor with the skills necessary to develop more pro-social attitudes. The minor will have an array of evidence-based programs that addresses negative peer influences. Further, the minor will have a 33-session Substance Abuse program that meets twice a week to address as the minor has a history of substance abuse issues.
"Additionally, minor will also have educational/career programs available for him to participate. The minor will be able to receive his high school diploma, participate in college programs, and Career Technical Education courses to receive national certifications. Regarding the minor's behavioral issues and easily angered attitude, DJJ offers a variety of evidence-based intervention programs that would educate the minor on how to control his anger, how to consider other people's perspective, and improve his social skills. He would benefit from the Aggression Interruption Training (AIT) Program which is a ten-week cognitive-behavioral intervention program that will provide the minor tools which would allow him to think about the end result and then choose an alternative, more positive, action. At the JJC, the minor has admitted to associating with gangs, he can enter the Incarcerated Men Putting Away Childish Things (IMPACT) program at DJJ, which provides a restructuring curriculum that would address the minor's gang involved life style. IMPACT provides the minor the opportunity to disassociate from the gang and make pro-social connections in his community.
"Upon the completion of his DJJ commitment, the minor would return home with a plan that connects him to resources in the community, which help reduce the risk of re-offending. Prerelease planning that utilizes an integrated re-entry plan, will guide the minor through reintegration and identify discharge needs prior to his release."
The officer then recounted the many less restrictive placements minor had attempted and failed. The juvenile court had repeatedly attempted to rehabilitate minor in local programs, despite recommendations by probation and the prosecution for DJJ commitment. Nevertheless, minor had blatantly disregarded the court's orders and reoffended both in and out of custody. His crimes were serious and violent. The court continued to give him another chance, but to no avail.
At the dispositional hearing on February 15, 2019, minor's counsel again argued for a local custodial placement, suggesting minor continue in the New Horizons Program. The prosecutor again agreed with probation's DJJ recommendation. The juvenile court decided on a DJJ commitment, explaining:
"And so, I'm going through these things in such detail because, No. 1, I want you to know we have not been quick to send you to D.J.J. I have enjoyed talking to you. You always seem like you have a good heart and good spirit about you. But once you get out of the courtroom, I've not seen my orders being followed at all, for whatever reason. And also to note, I went through what I believe is a complete and total exhaustion of local resources. I've recited the history just about, certainly through every program we have here locally and then some.
"Just to recap: Rehab program, G.P.S. program, multiple counseling programs, Substance Abuse Unit Program, New Horizons Program—we went through all of those. It's very much an exhaustion of remedies. I thought both of your attorneys did a great job with keeping you out of D.J.J., because you could have been sent there before. I'm wondering, in the back of your mind, you said, 'I want to go there.'
"I don't know. I don't know why anybody would violate within a quick period of time after a judge has given him chance, after chance, after chance, which you have definitely had.
"At this point in time, the local resources have been exhausted, and I am very confident in that finding. [¶] ... [¶]
"Now, the second prong of that analysis—you just don't commit somebody to D.J.J. because we have an exhaustion of local efforts to treat them. You have to have a benefit. And I see—and I say 'benefit'—substantial evidence of benefit to [minor] by sending him to D.J.J. There are three areas in particular that he'll have a benefit.
"One, he's a smart, young man. He has made some progress while he's been here at J.J.C. in getting his high school diploma. He's not yet done it. He will get his high school diploma. If he puts in any effort at all, he will get it. They have a very good high school. And because of his age, he can start to participate in college, perhaps, and career tech programs to obtain certificates. I think those go far beyond what we can do here at J.J.C. And those are all available to him.
"Substance abuse has been a constant problem for him throughout my review of the file. We tried our Substance Abuse Unit Program, which is our 180-day inpatient program. He's continued to have those issues throughout. He will have the CounterPoint Program at D.J.J., the substance abuse program, and that will benefit him significantly. Gang issues have also been a problem. The IMPACT, I-M-P-A-C-T, program at D.J.J. will help him, and Aggression Interruption Training program will help him with this issue quite a bit. He needs to get past the association with gangs and to move on with pro-learning, pro-social behavior, which, by the way, I think he knows how to do.
"In talking to him, you know, when he leaves court, I don't know what in the world happens to this young man. When he gets out of custody—because, you know, he's smart. He can have a great future, but he has really, sadly exhausted his options. There is substantial evidence of a benefit if I commit him to D.J.J. for the reasons set forth. [¶] ... [¶]
"The minor has been tried on formal probation in the physical custody of a parent and has yet to reform. The welfare of the minor requires the custody be taken from the parent or guardian.
"The Court has considered all local less restrictive forms of custody. I'm fully satisfied they are inappropriate dispositions at this time and the minor can benefit from the various programs provided by D.J.J. for the reasons set forth and the programs identified by the Court.
"The mental and physical condition of the minor are such to render it probable he will benefit. He will be benefited by the reformatory and educational discipline or other treatment provided by D.J.J."
The juvenile court committed minor to DJJ for a maximum term of confinement of 12 years, with 930 days of credit.
On February 22, 2019, minor filed a notice of appeal.
DISCUSSION
Minor contends the juvenile court abused its discretion in committing him to DJJ because his only DJJ-eligible offense occurred in June 2016 and he was currently a "non-violent, unsophisticated offender" whose criminal conduct had been de-escalating. He was only a " 'mildly delinquent,' " "low-level" offender, and there was "no reason to believe he posed any significant threat to the public." Furthermore, the New Horizons Program continued to be a viable, less restrictive placement option and minor's one physical fight should not have eliminated it—the court should not have prematurely abandoned its prior finding that the New Horizons Program was a good option. Minor describes himself as "completely unsuited for DJJ's harsh and restrictive environment."
A DJJ commitment is not an abuse of discretion where the record demonstrates "both a probable benefit to the minor ... and the inappropriateness or ineffectiveness of less restrictive alternatives." (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) We will affirm if the record contains substantial evidence to support the juvenile court's findings, indulging all reasonable inferences in support of its decision. (In re Calvin S. (2016) 5 Cal.App.5th 522, 527-528.) " 'A [juvenile] court abuses its discretion when the factual findings critical to its decision find no support in the evidence.' " (In re Khalid B. (2015) 233 Cal.App.4th 1285, 1288.)
Rehabilitation is one of the primary objectives of juvenile court law, and thus our statutory scheme " '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 [DJJ].' " (In re Carlos J. (2018) 22 Cal.App.5th 1, 6.) "[T]he court shall consider, in addition to other relevant and material evidence, (1) the age of the minor, (2) the circumstances and gravity of the offense committed by the minor, and (3) the minor's previous delinquent history." (Welf. & Inst. Code, § 725.5.) The court is required to "consider 'the broadest range of information' in determining how best to rehabilitate a minor and afford him adequate care." (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329.) A commitment to DJJ must be justified by substantial evidence of a probable benefit to the minor, including "some specific evidence" of the DJJ programs expected to benefit him. (In re Carlos J., supra, 22 Cal.App.5th at p. 10.)
Another primary objective of juvenile court law is the protection of public safety. (In re Carlos E. (2005) 127 Cal.App.4th 1529, 1542 [purposes of the juvenile system include "the protection of the public as well as the rehabilitation of the minor"].) For this reason, there is no absolute rule that a DJJ commitment must be reserved as the last resort and cannot be ordered unless less restrictive placements have been attempted where a DJJ commitment is deemed necessary to protect the public safety. (In re Ricky H. (1981) 30 Cal.3d 176, 183.) The juvenile court is not required to expressly state on the record its reasons for rejecting less restrictive placements, but the record must contain some evidence that the court appropriately considered and rejected reasonable alternative placements. (In re Nicole H. (2016) 244 Cal.App.4th 1150, 1159.)
Here, the record contains ample evidence regarding the many relevant programs at DJJ that would provide a probable benefit to minor. The record also contains what might be characterized as overwhelming evidence that multiple less restrictive placements had been attempted and had failed (had been exhausted, as the juvenile court put it), and were no longer appropriate or effective. Clearly, this situation was of minor's making, and his vision of himself as a non-violent, low-level, unsophisticated offender is belied by the record. Only two weeks into his most recent local placement, he committed a premeditated, violent attack on another minor. Moreover, he consistently showed flagrant disrespect for authority and the court's orders, reoffending and violating probation over and over, and he consistently failed to recognize the gravity of his conduct. The court's extensive efforts to rehabilitate him in local programs had failed, and the court believed a DJJ commitment was finally necessary. There was substantial evidence to support the court's findings required for that commitment.
We note that our review of this case was assisted by the excellent record created by both the probation officer and the juvenile court. --------
DISPOSITION
The juvenile court's findings and orders are affirmed.