In re Greg F.
Filed 1/15/13 In re Greg F. CA1/5
Opinion on remand from Supreme Court
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re GREG F., a Person Coming Under the Juvenile
Court Law.
THE PEOPLE,
Plaintiff
and Respondent,
v.
GREG F.,
Defendant
and Appellant.
A127161
(Sonoma
County
Super.
Ct. No. 35283J)
The juvenile court committed the
minor Greg F. (appellant) to the Division of Juvenile Facilities (DJF),
dismissing his most recent juvenile
delinquency petition (Welf. & Inst. Code, § 602),
did not qualify him for DJF commitment (§ 733, subd. (c)), and reaching
back to an earlier petition that alleged a DJF-eligible offense (§ 707,
subd. (b)). On appeal, we reversed the
order of commitment. We concluded the
court lacked authority under section 782 to dismiss a minor’s most recent
petition, following the minor’s admission to the allegations of that petition,
in order to commit him to DJF. The
California Supreme Court then reversed our decision and remanded the matter to
this court to decide appellant’s remaining contentions. (In re
Greg F. (2012) 55 Cal.4th 393, 420.)
We find no merit in these contentions and affirm the order of
commitment.
BACKGROUND
September 2008 Assault on Joseph C.
On September 16, 2008, 11-year old
Joseph C. was riding his bicycle in Santa Rosa when a car stopped next to
him. Three juvenile males jumped out,
yelling Norteño gang slogans and displaying gang hand signs. One of the juveniles hit Joseph on the head
with a baseball bat, knocking him off his bicycle. Joseph was airlifted to the hospital where he
underwent surgery, was hospitalized for seven days, and suffered lingering
neurological damage. Joseph identified
appellant as the boy who hit him with the baseball bat.
The ensuing 602 petition alleged
appellant had committed assault with a deadly weapon and by means of force
likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)),
had personally inflicted great bodily injury (id., § 12022.7, subd. (a)), and had acted for the benefit of a
and the petition was sustained. Because
“[a]ssault by any means of force likely to produce great bodily injury†is one
of the offenses listed in section 707, subdivision (b), appellant was eligible
for a DJF commitment, with a maximum term of 17 years. (§ 707, subd. (b)(14); see § 733, subd. (c).)
The probation department recommended
a commitment to DJF based on “the minor’s callous act of violence upon a young
victim, who continues to be emotionally and physically [a]ffected by the
minor’s actions, the minor’s lack of remorse for the victim, and the risk he
poses to the community.†Due to the severity
of his offense, appellant was not considered a suitable candidate for placement
services. Moreover, the probation
department believed DJF could best provide him with “appropriate and necessary
treatment and rehabilitation services.â€
The juvenile court retained appellant as a ward of the court but
rejected the probation department’s recommended disposition and instead ordered
an out-of-home placement. On January 8,
2009, appellant was placed at the Wilderness Recovery Center. Throughout this placement, appellant was
obstinate, defiant, and unwilling to participate in the therapeutic process or
consider terminating his gang association.
His noncompliance with the program escalated to the point where he was
refusing to participate in treatment services, and in June 2009, the placement
was terminated. Staff voiced concern
over appellant’s entrenched gang involvement and his callous lack of empathy
for his victim. On June 11, 2009, he was
detained in juvenile hall pending identification of another suitable placement.
August 2009 Battery in Juvenile Hall
On August 16, 2009, during dinner at
juvenile hall, appellant and two other Norteño gang members suddenly stood up
and attacked three Sureño gang members sitting nearby. Punches were exchanged. Juvenile hall staff members were initially unable
to break up the fight.
On August 18, 2009, the district
attorney filed a new section 602 petition, alleging appellant had committed two
offenses: (1) battery for the benefit of
a gang (Pen. Code, §§ 186.22, subd. (d), 242), and (2) knowing participation in
a gang (Pen. Code, § 186.22, subd. (a)).
Neither offense is “described in subdivision (b) of Section 707.†(§ 733(c).)
At the detention hearing the next morning, appellant admitted the
battery offense and associated gang enhancement. In return, the district attorney dismissed
the gang participation count. The
juvenile court accepted appellant’s admission and set the matter for a
disposition hearing.
Two days after the
officer’s concurrence, the district attorney filed an ex parte request to
calendar a motion to “withdraw†appellant’s plea. The following Monday, the prosecutor filed a
notice of probation violation under section 777, based on the assault in juvenile
hall. The prosecutor admitted that he
filed the August 18, 2009 section 602 petition in error, rather than proceeding
by way of a probation violation in the first instance. He asked the court to withdraw appellant’s
plea and strike the petition, stating the prosecution was “trying to get to a
[DJF-eligible] offense†in connection with the prior petition because of the
probation department’s concerns, namely, that “there aren’t any placements that
are willing to accept [appellant,] and we don’t have anywhere to put him.†With the court’s permission, the prosecutor
filed a formal motion to set aside appellant’s admission and dismiss the August
18 petition. The court granted the
motion, dismissing the August 18 petition in the interests of justice and appellant’s
welfare. (§ 782.) The court explained that it dismissed the new
section 602 petition to create the “best options†for disposition.
Appellant subsequently admitted the
section 777 probation violation, and the court referred the matter to probation
for an updated recommendation on disposition.
The matter was continued several times to determine whether appellant
could be successful in juvenile hall or in another placement short of DJF. When the disposition hearing was held on
February 3, 2010, the probation officer reported that appellant and another boy
had initiated an unprovoked assault on a rival gang member in juvenile
hall. Moreover, in light of his gang
involvement and violent behavior in juvenile hall, none of the placement
programs the probation officer had contacted were willing to accept
appellant. The court committed appellant
to DJF, stating he “needs programs that he can’t receive [at juvenile hall and
h]e’s not going to get picked up . . . [by] any normal program. [¶] I know they have a good educational
system in [DJF]. I know they have
programs there. I have been to judge’s
training recently, where they have talked about evidence-based programming. They’re changing
everything. . . . I, at
this point, don’t see any option.†The
court set the maximum term of confinement at 17 years.
On appeal, we reversed the February
3, 2010 dispositional order, concluding the juvenile court lacked authority
under section 782 to dismiss the 2009 petition for the purpose of reaching back
to the 2008 petition containing a DJF-eligible offense in order to support
appellant’s DJF commitment. (
2011).) The Supreme Court granted review
to resolve conflicting case law and disagreed with our analysis, holding that
section 733, subdivision (c) does not deprive the juvenile court of its
discretion to dismiss a 602 petition and commit a ward to DJF when, in
compliance with section 782, such a dismissal is in the interests of justice
and for the benefit of the minor. (
The high court remanded the matter to this court to address appellant’s
remaining contentions, specifically, (1) that there was insufficient evidence
to show he would benefit from a DJF commitment, and (2) that the juvenile
court erred in relying on information received outside the proceedings. (Id. at
p. 420.)
DISCUSSION
I. The Sufficiency of the Evidence to Support a DJF Commitment
A DJF commitment “can only be
reversed for abuse of discretion, and in evaluating the evidence and making
that determination we must apply the substantial evidence test.†(In re
Teofilio A. (1989) 210 Cal.App.3d 571, 579.) A DJF commitment must be supported by
substantial evidence establishing probable benefit to the minor and
demonstrating that less restrictive alternatives are ineffective or
inappropriate. (Id. at p. 576; In re Michael
D. (1987) 188 Cal.App.3d 1392, 1396; see § 734 [“No ward of the
juvenile court shall be committed to the [DJF] 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 [DJF]â€].)
The record provides substantial
evidence that a DJF commitment would result in a probable benefit to
appellant. In its report, the probation
department strongly urged the juvenile court to commit appellant to DJF, stating
its “strong[] belie[f] the minor would benefit from the restorative justice
practices and rehabilitative services
offered through [DJF], allowing the minor to positively change his behavior,
participate in vocational training, and return to the community truly
rehabilitated,†where he could “achieve his future goals and become a
productive member of society.†The
probation report notes that participation in the restorative justice process at
DJF would allow appellant to “take responsibility for the injuries he caused
the victim in his initial offense,†and “[g]ain[] insight into the effects his
actions had upon the victim and his family . . . [and] insight
related to the impact violent crime has upon his communityâ€â€”an “essential
experience†for him. The probation
report also notes that a DJF commitment was “necessary to ensure public safety
and to offer the minor yet another opportunity for rehabilitation services
through the Juvenile Court.â€
Appellant contends substantial
evidence does not show he would probably benefit from a DJF commitment because
the record clearly establishes “that his primary rehabilitative need was for
sophisticated mental health treatment, including therapy and medicationâ€;
“[y]et there was no evidence presented . . . as to whether [DJF]
could provide appellant with any mental health treatment, much less at the
level of sophistication he needed.â€
(Italics omitted.) Appellant
contends he could not benefit from programs at DJF until his mental health
symptoms were treated.
In November 2008,
conducted a psychological assessment of appellant. She recommended “a dual diagnosis programâ€
that would address both his substance abuse problem and his mental health
issues, including depression, obsessive-compulsive disorder, anger management,
and family issues. Noting, however, that
“there are very few dual diagnosis programs,†Dr. Doty recommended “a mental
health program,†finding appellant’s need for substance abuse treatment
secondary to his mental health needs.
Dr. Doty also recommended a medication evaluation.
Appellant correctly notes that the
program into which he was placed in January 2009 was a substance abuse program,
not a dual diagnosis program; his primary counselor there was a drug and
alcohol counselor, not a therapist; and he did not receive a medication
evaluation until late May 2009, just before he was terminated from the program.
Appellant’s contentions fail,
nevertheless, to alter our conclusion that substantial evidence supports a
finding he will probably benefit from a DJF commitment. The juvenile court ordered the probation
department to forward appellant’s medical records and psychological evaluations
to DJF before his commitment began and authorized DJF to provide routine
medical and mental health treatment to appellant and continue his psychotropic
medication for 60 days, pending its own evaluation.
contend below that more mental health services were required and did not object
to a DJF commitment based on a lack of evidence showing DJF would address his
mental health needs. He has waived the
right to assert this point on appeal.
(See People v. Zapien (1993) 4
Cal.4th 929, 966 (Zapien)
[“defendant’s failure to raise this issue in the trial court precludes his
present claim of errorâ€]; In re Sheena K.
(2007) 40 Cal.4th 875, 880-889 [waiver rule applies in juvenile dispositions].)
For the first time in his reply
brief, appellant also argues it was unfair to penalize him for minor incidents
in juvenile hall while he waited for disposition, since he had not received the
recommended mental health treatment. As
he failed to raise this point below and did not assert it in his opening brief
on appeal, he has waived it as well.
at p. 966; Doe v. California Dept. of
Justice (2009) 173 Cal.App.4th 1095, 1115 [forfeiture of an issue by
failing to raise it in opening brief].)
II.
Information
Appellant also contends the juvenile
court’s reliance on information received at judge’s training denied him “a
fundamentally fair dispositional hearing because he was not privy to what the
court had heard at the training and therefore was unable to respond to
it.†Citing Zapien, the People contend appellant has forfeited this issue by
failing to object below.
Appellant appears to concede he
failed to object below but “urges [this court] to consider his claim on the
merits†in its “discretion to address constitutional issues raised on appeal
despite the lack of an objection below.â€
He maintains “the issue is ‘a pure question of law’ turning on
undisputed facts or involving important issues of public policy.†He contends Zapien is distinguishable because the court in that case noted
that, “by raising the issue at trial, the record could have been developed as
to whether the trial judge could act impartially or whether the officer’s
credibility should have been decided by another judge†while in this case,
appellant’s “failure to raise the issue in the juvenile court does not affect
this court’s review.â€
We decline appellant’s request to
decide this issue notwithstanding his failure to raise it below. By failing to raise a timely objection to the
juvenile court’s reliance on information from judge’s training, appellant
deprived the court of an opportunity to clarify its use of that information and
the evidence on which it was relying, and to obtain further information
regarding DJF’s programs from the prosecutor and the probation department if
the record evidence in fact was insufficient to support its decision.
We observe, in any event, that the
record contains substantial evidence supporting the juvenile court’s decision
even if we disregard the information the juvenile court purportedly learned at
judge’s training:
name="_ftnref4" title="">[4] that DJF had implemented
“evidence-based programming†and was “changing everything.â€
DISPOSITION
SIMONS,
Acting P.J.
We concur.
NEEDHAM, J.
BRUINIERS, J.
references are to the Welfare and Institutions Code.
mood-stabilizing medication in May 2009.
