Opinion
A152575
05-17-2018
In re S.W., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. S.W., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J17-00013)
S.W. (minor) appeals from a dispositional order committing him to the county's Youthful Offender Treatment Program (YOTP). He contends that the juvenile court abused its discretion in committing him to YOTP absent substantial evidence that such a commitment would benefit him or that an alternative commitment to the Orin Allen Youth Rehabilitation Facility (the ranch) was unavailable. He also contends the order should be modified to specify that the maximum term of confinement is five years, rather than five years four months. We find no abuse of discretion in minor's commitment to YOTP, but agree that the maximum term of confinement should be modified.
Factual and Procedural Background
On January 11, 2017, minor pled no contest to one count of second degree robbery in violation of Penal Code sections 211 and 212.5, subdivision (c) and one count of grand theft from a person in violation of Penal Code section 487, subdivision (c). Under the terms of the negotiated plea, minor was promised that if he successfully completed his probation, the robbery count would be dismissed.
According to the probation department's dispositional report, minor admitted using a black pellet gun to rob a clerk at a gas station. At the time of his arrest, minor told the police that he hid the stolen money in a tree and he left the pellet gun in a nearby yard. An officer searched the area and recovered the money and pellet gun.
The juvenile court declared minor a ward and removed him from parental custody. The probation department's dispositional report indicates that minor was screened for commitment to both YOTP and the ranch. While he was found to be acceptable for both, the probation department recommended commitment to the ranch. The report states, "although the minor is acceptable for YOTP, [it] is not appropriate at this time. We have an appropriate program available, where he could benefit from services offered at [the ranch] for which he has been accepted." The court adopted the recommendation and committed minor to the ranch for a six-month program. On June 2, 2017, minor completed the program and was released from custody.
On August 15, 2017, the probation department filed a notice of probation violation. The petition alleged that minor had committed a robbery and failed to adhere to his curfew. According to the probation report, minor was arrested at approximately 1:30 a.m. on suspicion of robbery. At the time of his arrest, minor admitted that he acted as the lookout while the victim was robbed with a BB gun.
Pursuant to a negotiated disposition, minor admitted the curfew violation and he agreed that the police report of the robbery could be considered by the court in selecting a disposition.
The probation department recommended minor be committed to YOTP. Its report indicates that the minor was screened for a commitment to the ranch by a probation manager and "found unacceptable for a new [ranch] commitment." The minor was screened for a commitment to YOTP by a probation supervisor and "found to be acceptable for a commitment to the YOTP program." Minor was also found to be eligible for commitment to the Department of Juvenile Justice (DJJ).The report offers the following explanation for the recommendation: "Before the court is the matter of 16 year old [S.W.], for disposition on a sustained . . . probation violation due to failure to abide by curfew. The minor left church and proceeded to make a series of poor decisions, ultimately leading to his involvement in a robbery. The minor's statements, if taken at face value, would like us to believe that he was unaware that [the co-responsible minor] was going to commit a crime. The minor would like us to believe that he was not involved, did not participate. And did not get any benefit from the crime. If taken at, face value, the minor was just out riding with friends. Unfortunately, the minor's version of events are inconsistent with the police report. [¶] The minor's co-responsible . . . provided a statement to police. Under Miranda, [he] stated that 'they all knew he wanted to commit a robbery and went along with the plan.' [The co-responsible minor] also said that he called the minor, who then brought the bb gun into the car with him. This statement paints a very different picture of the minor's involvement, one that seems more consistent with the facts of the incident. The police report documents that the minor can be seen on surveillance video exiting the vehicle and standing with [the co-responsible minor] during the robbery. The minor was seen by police in possession of the victim's cell phone just before his arrest. Perhaps most important. The victim stated that the person holding the gun [the co-responsible minor] threatened her while the second person (the minor) took her bag off her shoulder. Also, when questioned by the police under Miranda, the minor admitted to acting as a lookout during the robbery, but changed his story during probation's interview with him. It appears the minor's story is not truthful. [¶] This is the second time the minor has been involved in a robbery. In the instant offense, the minor had been home from the [ranch] for less than two months before associating with negative peers and delinquent activity. The victim stated that she felt scared that she would be shot if she didn't give up her property, and she will have to live with the fear and anxiety the minor and his co-responsible caused for the remainder of her life. The minor has not rehabilitated effectively, and presents a continuing threat to the safety of the community as well as his own wellbeing until he can receive treatment to effectively address his delinquency."
Miranda v. Arizona (1966) 384 U.S. 436
At the contested dispositional hearing, minor's counsel questioned the accuracy of the probation department's statement that minor had removed the victim's bag during more recent robbery, suggesting that at most he acted as a lookout. Minor's father and his counsel asked that minor be returned to the ranch. The juvenile court adopted the probation department's recommendation and committed minor to YOTP. The court explained its ruling as follows, "Well, I am so disappointed because [minor] had the opportunity to have the 211 dismissed nunc pro tunc, and now he is back here before me on another 211. And he is, in fact, DJJ-eligible, and it appears that probation is suggesting to the court . . . the least restrictive rehabilitative option for him since he was not successful when released to the community after the ranch commitment. And I am really concerned about the fact that he has just gone down the same path. He is lucky to have the father that he has who is so supportive and concerned and has done everything that a father can do. [¶] But I do believe that it is in his best interest and [minor's] best interest to have the YOTP commitment, which is generally a year-long commitment, but if young people really apply themselves there, they often get out in less than a year, and that is what I hope for [minor]. [¶] I hope that this . . . gets your attention because I do not want you to end up in state prison or, worse, dead. And I am really worried about people you gravitate to and the activities in which you involve yourself in."
Minor timely filed a notice of appeal.
Discussion
1. The trial court did not abuse its discretion in committing minor to YOTP.
Delinquent minors that are under the jurisdiction of the juvenile court must "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 this chapter." (Welf. & Inst. Code, § 202, subd. (b).) For purposes of this statute, "punishment" means sanctions, and permissible sanctions include, among other things, "[c]ommitment of the minor to a local detention or treatment facility, such as a juvenile hall, camp, or ranch." (§ 202, subd. (e)(4).) When a juvenile court is "determining the judgment and order to be made in any case in which the minor is found to be a person described in Section 602, the 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." (§ 725.5.) Additionally, a juvenile court must "consider the safety and protection of the public, the importance of redressing injuries to victims, and the best interests of the minor." (§ 202, subd. (d).) In sum, the primary goal of the juvenile court law is "to rehabilitate juvenile offenders while both protecting the public and holding the person accountable for his misconduct." (John L. v. Superior Court (2004) 33 Cal.4th 158, 182-183.)
All subsequent statutory references are to the Welfare and Institutions Code, unless otherwise indicated. --------
Within this statutory framework, "[t]he juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion a dispositional order in accordance with this discretion." (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.) "[J]uvenile placements need not follow any particular order . . . , 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. (2003) 31 Cal.4th 480, 507.) In reviewing a juvenile court's commitment decision or dispositional order, we "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." (In re Lorenza M. (1989) 212 Cal.App.3d 49, 53.) Substantial evidence is defined as 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.)
Minor contends that there is no substantial evidence to support the trial court's finding that the ranch "was the least restrictive option but . . . that it was not available." He argues that minors are not "automatically barred" from returning to the ranch and that there is nothing in the record that would allow the court "to rule out [the ranch] as inappropriate or ineffective."
Contrary to minor's suggestion, the court did not find that minor was ineligible for or "barred" from recommitment to the ranch. The court rejected minor's return to the ranch because he was not successful when previously released from his ranch commitment. While it is undisputed that minor performed well while at the ranch, shortly after his release, he violated his probation and participated in a second robbery. The probation department's mischaracterization of the time period between his release from the ranch (June 2) and the commission of the second robbery (August 14) as "less than two months" is not meaningful. The dates were included in the report and, thus, before the court at the time of the decision. Likewise, the court was fully aware of the factual disagreement over the degree of minor's participation in the robbery. It was undisputed, however, that he, at a minimum, participated as a lookout during the robbery. The trial court was reasonably concerned that minor had "just gone down the same path" and expressed hope that the more restrictive placement would help him change his destructive behavior.
Minor also contends that there was insufficient evidence to support a finding that the YOTP commitment is in his best interest. He faults the probation report for failing "to analyze [his] mental health needs" and argues that "there was no evidence of the services, if any, that are provided [at the YOTP] or how they could benefit [minor]. Therefore, there was no evidence he would receive the grief counseling, family counseling, or ADHD [attention-deficit/hyperactivity disorder] treatment he required."
As an initial matter, there is no requirement that the juvenile court recite a list of the minor's rehabilitative needs and explain how the specific programs at the chosen facility will address those needs. Moreover, the suggestion that the court failed to consider minor's need for counseling in concluding that the commitment was in his best interest finds no support in the record. The same judge presided over the proceedings from the filing of the original petition; minor's need for counseling and ADHD testing was raised numerous times over the course of the proceedings. Likewise, the court's comments reflect a thorough understanding of YOTP. We must presume that the court considered both in finding that commitment would be in the minor's best interest. Finally, a fair reading of the record refutes minor's argument that the YOTP commitment "was primarily punitive, with no demonstration of rehabilitative value."
2. Minor's maximum term of confinement must be corrected.
At the dispositional hearing following the probation violation, the juvenile court calculated the maximum term of confinement as five years for the robbery and 120 days for grand theft. Minor contends, and the Attorney General agrees, that the term of commitment for the grant theft count should have been stayed pursuant to Penal Code section 654. Accordingly, the dispositional order should be modified to stay the term for grand theft and adjust the maximum time of confinement to five years.
Disposition
The dispositional order is modified to state that the maximum time of confinement is five years. As so modified, the order is affirmed.
Pollak, Acting P.J. We concur: Siggins, J.
Jenkins, J.