Opinion
No. A149010
03-07-2017
In re GREGORY S., a Person coming Under the Juvenile Court Law. THE PEOPLE, v. GREGORY S.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J1400048)
Minor Gregory S. appeals from the juvenile court's disposition findings and order, issued in a wardship proceeding initiated pursuant to Welfare and Institutions Code section 602, committing him to the Division of Juvenile Justice (DJJ). Gregory S. contends the juvenile court abused its discretion by failing to sufficiently consider less restrictive alternatives and relying on speculation in committing him to DJJ. We affirm the court's disposition findings and order.
All statutory references in this opinion are to the Welfare and Institutions Code unless otherwise stated.
BACKGROUND
In August 2012, Gregory, then fifteen years old, participated in a robbery with two others in which an iPhone was stolen and the victim assaulted. The Alameda County District Attorney filed a wardship petition. In September 2012, Gregory admitted to one count of robbery in violation of Penal Code section 211, and the court adjudged him a ward of the court. Gregory was placed in his father's home with GPS supervision.
From January 2013 through May 2013, four supplemental petitions under section 777 were filed indicating that Gregory had violated the court's orders, such as by not attending school and not following the rules of the GPS contract. Gregory admitted to these violations and the court ordered further conditions on his probation.
Another supplemental petition was filed under section 777 in December 2013. His father reported to the GPS office that his son was not following house rules, such as by using drugs. In January 2014, Gregory admitted to violating a court order regarding his GPS, which allegation the court found to be true. The court also transferred his wardship to the Contra Costa County juvenile court for disposition because his father lived in that county.
Later in January 2014, the Contra Costa County juvenile court issued a disposition order that Gregory be placed in the Orin Allen Rehabilitation Facility (Orin Allen) for six months. In August 2014, the probation department reported that Gregory's overall performance at Orin Allen was satisfactory. He had positive relationships with peers and with staff, performed well during his program time and completed acceptable school work. He was released from Orin Allen, the court ruled that his parole was successfully completed and he remained under the court's jurisdiction. Previous orders, including those relating to his probation, remained in effect.
However, Gregory soon engaged in more problematic behaviors. In September 2014, the probation department reported that Gregory had violated probation by leaving his home without permission and that his whereabouts were unknown. His father reported that Gregory was not attending school. A supplemental petition was filed alleging a probation violation and a warrant was issued for his arrest.
In November 2014, Gregory was involved in a high speed chase in a stolen vehicle with Santa Rosa police. "Due to Gregory's disregard for the safety of himself and others," the department later wrote, "a Patrol Intervention Technique . . . was applied by the pursuing police vehicle forcing Gregory's vehicle to collide into the center concrete divider of the highway." He was arrested and transported to Contra Costa County juvenile hall. He told the probation department that his relationship with his father was " 'horrible' " and that he wanted to move back in with his mother, who lived in Oakland.
In December 2014, the court held a contested disposition hearing regarding a sustained probation violation (the record is unclear which one). He was subsequently ordered placed in the out-of-home Rite of Passage program. The department reported that he did "well" there, including regarding his overall conduct with staff and peers, his school work and athletics. The department reported in November 2015 that he earned his high school diploma and successfully completed the program. The court ordered that Gregory, having turned eighteen years old, be placed in a transitional independent living plan as a non-minor dependent of the court. He moved into a transitional housing apartment with certain conditions, including that he attend college or work and keep in monthly contact with the department.
On January 12, 2016, the police received a report from an Antioch resident that he saw three persons in an absent neighbor's backyard and heard the sound of glass breaking. An investigating officer found a screen removed and a window smashed at the residence. Police questioned three persons, including Gregory, on a trail behind the residence. One had a bleeding hand and another was in possession of a pair of socks. Gregory had fresh mud on his shoes, which matched a trail of muddy footprints that led from the back fence of the residence. Antioch police arrested the three for residential burglary. Gregory was later released and the district attorney decided not to file charges, but Gregory failed to report to the probation department that he had had contact with police. A probation violation was filed and a warrant issued for his arrest. Over the next couple of months, he contacted the probation department by phone, but did not disclose his whereabouts.
On May 21, 2016, a California Highway Patrol office reported chasing a station wagon that was traveling at a high rate of speed on Interstate 680. The station wagon accelerated to over 100 miles an hour and collided with another vehicle. The driver, later identified as Gregory, fled on foot but was later taken into custody behind a fast food restaurant. The wagon was reported stolen. Gregory told the probation department he had been staying with his mother, a friend and his girlfriend at different locations, had stayed out of trouble, and had thought about turning himself in but did not want to stay in jail for a long period of time.
In a May 2016 hearing, the court was advised that Gregory would admit to violating the terms of his probation by failing to report his contact with police to the probation department as required. The court advised Gregory of his waiver of rights and the consequences of such an admission, including that the court could, based on his violation, commit him to the Division of Juvenile Justice. Gregory admitted to the probation violation, which the court found to have occurred.
In a June 14, 2016 supplemental petition report to the court, the department stated that Gregory was "facing" charges in criminal court (it is unclear if these charges were actually filed against him) for conspiring to attempt a residential burglary with two adults, auto theft, driving without a license, hit and run causing property damage and fleeing from a police officer with reckless driving. The department reported that Gregory was unsuitable for placement in a ranch, Orin Allen or out-of-home placement because he was 18 years old and had a high school diploma. He was suitable for commitment to the Youthful Offender Treatment Program (YOTP).
The department further reported that Gregory "could benefit from the programming offered on YOTP. A commitment will provide him with the social and behavioral development he seems to be lacking, all within a positively structured, secure environment. [¶] Gregory will learn to make better decisions and how to associate with positive peers and authoritative figures. The YOTP will address his substance abuse and empathy for victims. He will be able to participate in job tech/life skills through practical job-finding skills, practice positive and professional behavior, and explore his strengths and values. He will participate in aggression replacement training (ART), which will help him focus on problem solving, negotiation skills and managing emotions."
At the dispositional hearing, held on June 14, 2016, the court stated that it was inclined to issue a DJJ commitment based on Gregory's history, age and sophisticated criminal conduct. It granted a continuance to give Gregory's counsel more time to prepare a response.
At the continued dispositional hearing, held on July 12, 2016, the probation department maintained its recommendation that Gregory be committed to YOTP. The court questioned whether Gregory, who was about to turn 19 years old, could be committed to YOTP. The probation officer said she believed so and the court did not again refer to his age as a bar.
Defense counsel acknowledged that Gregory had "not done well overall on probation" and his recent probation violation and the information that was presented to the court was "troubling." However, counsel argued Gregory had "done some really good stuff while on probation" and also had done well in the Rite of Passage program. Defense counsel, while acknowledging that the court had "had numerous hearings in which you heard about both YOTP and DJJ," argued that YOTP was "going to better empower Greg in the long run to lead a crime-free and productive life" and was "the ideal option" for Greg at that point. He noted that YOTP was a custodial setting, thereby solving any issues of public safety, was of 10 to 12 months duration, allowed Gregory's parents to visit, and offered cognitive behavioral therapy.
On the other hand, Gregory's counsel continued, DJJ would be "much, much farther away from his family" and was a longer program. At DJJ, counsel said, Gregory "would be getting the same services that he would at YOTP," but he would be "farther away from home for a longer period of time."
The prosecutor agreed with the court's inclination toward DJJ. She noted that Gregory had accumulated multiple probation violations over the past four years, and argued that the most recent violation "was particularly troubling in light of the fact that he was burglarizing people's homes." She emphasized that he had "absconded from the Court" for months until the high-speed car chase and his subsequent capture. She asserted that he had had "ample opportunities to change his ways on probation over the course of the last 4 years" and that he now "pose[d] a significant threat to the community." Further, at DJJ he would "be able to benefit from programming ranging from substance abuse to empathy for victims to job and life skills in addition to a lot of other programs."
The court then asked the probation department's view. The probation officer reminded the court that Gregory was facing criminal charges; therefore, "if charges are filed" he would not be able to participate in YOTP. When Gregory's counsel began to address the issue, the court said it did not matter because the issue was not dispositive to the court.
Gregory's counsel then outlined another option for the court. He proposed the court could "just sentence Greg to a significant period of time in county jail" in the 6- to 12-month range. There, Gregory could be in custody, providing protection to the community, participate in the "Deuce" program and a program that provided vocational training, remain in his community and see his family on a regular basis.
The court then ruled as follows: "I think, number one YOTP is wholly inappropriate for both [Gregory] and for the other residents of YOTP. [Gregory] has his high school diploma. And although there are some programs and options available at YOTP, not nearly the same as what is available through DJJ for someone who has their high school diploma. Secondly, [Gregory] has shown himself to be I think really entrenched in a delinquent mindset. His engagement in criminal behavior has been constant for sometime now and very dangerous. And I don't think that he quite frankly will be a good influence on the other residents at YOTP.
"This is the second time when he's been in warrant status that he's been found in a stolen vehicle as the driver in high-speed chases and pursuit by law enforcement, placing not only [Gregory] at risk, but, quite frankly, the community at large. Very dangerous conduct on his part.
"And I believe that simply ordering him to serve time in county jail, although he may want to remain local and he'd rather sit around and do nothing but spend time in a jail cell, that DJJ would offer him some rehabilitative programs and schooling that he could truly benefit from once he completes his time there. So I am going to commit [Gregory] to the Department of Juvenile Justice."
The court then stated that its disposition decision was based on Gregory's 2012 robbery, which it declared to be a felony. It found by clear and convincing evidence Gregory's parent's continued custody of him would be detrimental to his welfare, requiring his removal. It stated that it had "truly considered all less restrictive programs here that are offered locally, specifically YOTP, the Ranch," and was "fully satisfied that there is no less restrictive local program which would offer the same benefits to [Gregory]," and that "he can better benefit from the various programs provided by DJJ." The court further found that Gregory's "mental and physical condition and qualifications are such as to render it probable that he will in fact be benefited by the reformatory, educational discipline and other treatment provided by DJJ. I find that he does not have any exceptional educational needs."
Gregory filed a timely notice of appeal from the court's dispositional order. During the pendency of this appeal, he submitted a request for judicial notice of a page from the "Contra Costa County Probation Overview" regarding YOTP, which we granted.
The notice of appeal, filed on July 13, 2016, the day after the court announced its ruling at the end of the dispositional hearing and issued it in writing, mistakenly refers to the date of the dispositional order as "July 26, 2016."
DISCUSSION
Gregory argues the court's disposition findings and order must be reversed because the court failed to properly consider less restrictive alternatives and instead found the proposed less restrictive alternative—a commitment to YOTP—inappropriate and ineffective, and the commitment to DJJ appropriate, based on speculation. He claims the court rejected the YOTP option "based on its own beliefs about the program's restrictions, including a belief that YOTP's educational programs for high school graduates were less than DJJ's programs and that YOTP was not suitable for a 19 year old," and its speculation that Gregory would be a "bad influence" on other YOTP participants. We disagree that reversal is necessary under the circumstances of this case.
Since 1984, section 202 has required that delinquent minors, "in conformity with the interests of public safety and protection, receive care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances. This guidance may include punishment that is consistent with the rehabilitative objectives" of Chapter 2 of the Juvenile Court Law. (§ 202, subd. (b); In re Teofilio A. (1989) 210 Cal.App.3d 571, 575-576.) Despite this "slight shift in emphasis, rehabilitation continues to be an important objective of the juvenile court law." (In re Teofilio A., at p. 576.) That said, "[t]he juvenile court has broad discretion at disposition to implement the priorities in section 202 . . . ." (John L. v. Superior Court (2004) 33 Cal.4th 158, 186.)
In making any disposition order, the juvenile court must take into account the minor's age, the circumstances and gravity of the offense, and the minor's past delinquent history. (§ 725.5; In re Jonathan T. (2008) 166 Cal.App.4th 474, 484-485.) The court must also consider the probation officer's report. (§ 706; In re Eddie M. (2003) 31 Cal.4th 480, 487.) "[J]uvenile placements need not follow any particular order under section 602 and section 777, including from the least to the most restrictive. [Citations.] Nor does the court necessarily abuse its discretion by ordering the most restrictive placement before other options have been tried." (In re Eddie M., supra, 31 Cal.4th at p. 507.) "[I]f there is evidence in the record to show a consideration of less restrictive placements was before the court, the fact that the judge does not state on the record his consideration of those alternatives and reasons for rejecting them will not result in a reversal." (In re Teofilio A., supra, 210 Cal.App.3d at p. 577.) "[H]owever, there must be some evidence to support the judge's implied determination that he [or she] sub silentio considered and rejected reasonable alternative dispositions." (Ibid.)
"No ward of the juvenile court shall be committed to the Youth Authority unless the judge of the court is fully satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefited by the reformatory educational discipline or other treatment provided by the Youth Authority." (§ 734.) Also, to order a DJJ commitment, " 'there must be evidence in the record demonstrating both a probable benefit to the minor by a [DJJ] commitment and the inappropriateness or ineffectiveness of less restrictive alternatives.' " (In re Jonathan T., supra, 166 Cal.App.4th at p. 485; In re Pedro M. (2000) 81 Cal.App.4th 550, 555-556, disapproved in part on another ground in People v. Gonzales (2013) 56 Cal.4th 353, 375, fn. 6.) Further, given the change in section 202, "[i]n evaluating the court's exercise of discretion in committing a minor to [the Division of Juvenile Facilities], we now do so with punishment, public safety, and protection in mind." (In re Luisa Z. (2000) 78 Cal.App.4th 978, 987-988.) Also, generally, in order for a minor to be statutorily eligible for a DJJ commitment, his or her most recent offense must be listed in subdivision (b) of section 707. (§ 733, subd. (c); see In re D.B. (2014) 58 Cal.4th 941, 944.)
As explained in In re Albert W. (2015) 240 Cal.App.4th 411, in 2005, the California Youth Authority eventually became known as the Division of Juvenile Facilities (DJF), part of the Division of Juvenile Justice, which is part of the Department of Corrections and Development; DJF and DJJ are often used interchangeably. (Id. at pp. 413-414, fn. 1.) --------
"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.) We will not lightly substitute our judgment for that of the juvenile court. Rather, we must indulge all reasonable inferences in favor of the decision and affirm the decision if it is supported by substantial evidence. (Id. at p. 1330.) Substantial evidence is evidence that is "reasonable, credible, and of solid value—from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof." (In re Jorge G. (2004) 117 Cal.App.4th 931, 942.)
Gregory's arguments are unpersuasive for three reasons. First, the probation department's report about YOTP's rehabilitative programs being suitable for Gregory, as well as Gregory's counsel's contentions at the disposition hearing that Gregory should be placed either in YOTP or county jail demonstrate conclusively that the court properly considered less restrictive placements. Certainly, given Gregory's history, it would have been within the court's discretion to consider only in-custody options in doing so.
Second, the court's determination that Gregory would benefit by a DJJ commitment was appropriate under the circumstances. There was no evidence submitted regarding the DJJ programming, which was understandable given that the probation department focused its report on the benefits to Gregory of a YOTP commitment.
However, the department's report about YOTP, along with Gregory's counsel's endorsement of that less restrictive alternative, established that this commitment would provide sufficient rehabilitative services to Gregory. The court declined to select this option in lieu of a commitment to DJJ. It needed no further evidence to support this decision because of a concession by Gregory's own counsel. Generally, a challenge to a dispositional order on the ground of insufficient evidence is not forfeited if it is not raised first in the juvenile court. (In re R.V. (2012) 208 Cal.App.4th 837, 848.) Nonetheless, here, as we have recounted, during the disposition hearing, Gregory's own counsel represented that at DJJ, Gregory "would be getting the same services that he would at YOTP," but he would be "farther away from home for a longer period of time." This was in effect a stipulation that DJJ would provide sufficient rehabilitative services to Gregory. It relieved the court of the duty it would have had otherwise to conduct a further factual inquiry into the programs available at DJJ. (Wilson v. Davis (1938) 11 Cal.2d 761, 771-772 [party who "in effect stipulated" that the question of her competency should not be raised below, cannot now urge for the first time that there was not a sufficient adjudication of her competency]; see also In re Marriage of Broderick (1989) 209 Cal.App.3d 489, 501 ["an appellant waives his right to attack error by expressly or implicitly agreeing or acquiescing at trial to the ruling . . . objected to on appeal"].)
Third, Gregory's account of the court's ruling is incomplete because it fails to discuss what is obvious from the record and what was clearly on the court's mind: Gregory had a history of out-of-control conduct unabated by stints—however successful—in previous, less restrictive options such as Orin Allen, Rite of Passage and transitional independent housing, and his conduct posed serious risks to public safety. In the previous year-and-a-half, despite these stints, he was involved in two high-speed chases with police involving stolen vehicles that posed an obvious danger to public safety. In the first, the stolen vehicle he was driving was forced to collide with a center divider; in the second, Gregory collided with another vehicle. The court fairly concluded from this and other evidence in the record that "[Gregory] has shown himself to be I think really entrenched in a delinquent mindset. His engagement in criminal behavior has been constant for sometime now and very dangerous." For this reason, it also was well within the court's discretion to decide that a commitment in DJJ was appropriate and a commitment to YOTP was inappropriate, bearing in mind Gregory's rehabilitation as well as "punishment, public safety and protection." (See In re Luisa Z., supra, 78 Cal.App.4th at pp. 987-988; see also In re Greg F. (2012) 55 Cal.4th 393, 417 [noting that "[t]he DJF has many rehabilitative programs that can benefit delinquent wards" and that "[s]ome wards . . . may be best served by the structured institutional environment and special programs available only at the DJF"].)
For these three reasons, the court acted within its discretion to commit Gregory to DJJ. None of Gregory's arguments establish reversal is merited in light of them.
DISPOSITION
The disposition findings and order appealed from are affirmed.
/s/_________
STEWART, J. We concur. /s/_________
RICHMAN, Acting P.J. /s/_________
MILLER, J.