In re Jose Q.

Filed 5/13/08 In re Jose Q. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Defendant Jose Q. appeals from an order of the juvenile court committing him to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF).[1] Jose contends the juvenile court abused its discretion in committing him to the DJF because there was insufficient evidence that he would probably benefit from the commitment. We conclude that Joses argument is without merit, and we affirm.

I. Background

On the evening of April 27, 2005, in Santa Rosa, a 13-year-old boy and his two friends had just walked outside an apartment building when Jose and Alberto M. (Alberto) approached, demanding to know what the boys claimed. Alberto was carrying a wooden stick, and multiple witnesses reported seeing a metal object, like a padlock, in one of Joses hands. The 13 year old responded that he did not associate with a street gang, and Jose and Alberto both said, Norte and PL. Calling the boy a Sureno and a scrap, Jose pushed him in the chest and punched him twice in the face. The boy, who was taken from the scene in an ambulance, suffered a fractured orbital bone.

The ensuing police investigation led officers to 15-year-old Jose. Under questioning, Jose explained that it was his birthday so he, his cousin, and Alberto were going to the market for some birthday candles. According to Jose, as they walked down the sidewalk, the victim began saying, Why you mugging me? What are you doing on my street? Jose told the police that he was not going to back down, and he and the boy then got into an argument. Jose claimed that at some point, the victim pushed him in the chest, and Jose responded by punching him in the face, knocking him down. According to Jose, he only punched the victim after the victim verbally assaulted and then pushed him. After initially denying any knowledge of gangs, Jose later admitted he associates with Pachuco Loco and acknowledged that the incident was gang-related, with both sides calling out gang slogans.

On April 28, 2005, the Sonoma County District Attorney filed a section 602 petition alleging three violations: felony assault (Pen. Code, 245, subd. (a)(1)), felony battery resulting in the infliction of serious bodily injury (Pen. Code, 243, subd. (d)), and felony participation in a street gang (Pen. Code, 186.22, subd. (a)). The petition alleged that counts 1 and 2 were serious felonies within the meaning of Penal Code section 1192.7, subdivision (c)(23).

On June 1, 2005, a detention hearing was held before the Honorable Mark Tansil, at which time the district attorney dismissed counts 1 and 3, struck the enhancement as to count 2, amended the maximum sentence on count 2 from three years to four years, and designated count 2 as undeclared. Jose admitted the count 2 violation as amended, and Judge Tansil sustained the petition, detaining him, referring the matter to probation for the preparation of a dispositional report, and setting a disposition hearing for June 15, 2005.

The resulting June 13, 2005, probation report explained that this incident was not Joses first encounter with the juvenile justice system: The minor was initially referred to this department on May 19, 2004, following an alleged violation of [Penal Code, section 243.2]. The minor and several co-participants followed a [middle school] student from the campus to a nearby grocery store. The minor and co-participant punched and kicked the student numerous times, including hitting him while he lay on the ground. Two witnesses reported the minor and co-participant wore brass knuckles or rings at the time of the assault. The minor advised the arresting officer that he had hit the victim because the victim was mugging him. This department referred the minor to a diversion program; however, he failed to contact the diversion agency. The diversion agency referred the matter to [p]robation, and this department held the matter in abeyance until November 19, 2004, at which time all proceedings were dismissed.

The probation report also provided insight into Joses family history, detailing events that led to his being declared a section 300 dependent when he was 10 years old. Joses mother and father were involved in a 14-year relationship, although they never married. In November 2001, his father began serving an eight-year sentence for having severely beaten Joses mother. As described in the probation report, On January 16, 2001, Mr. [Q.] repeatedly [and] severely beat the minors mother at her residence until she passed out. He threw water on her to revive her between beatings. Prior to the assault, he allegedly used methamphetamine. Neighbors contacted law enforcement after the minors mother broke out the bedroom window and screamed for help. The minors mother was taken to the hospital and Mr. [Q.] fled the area. The minor, who was left unattended in a room his father was renting at the time, and his brother, who was staying at a relative[]s home, were taken to Valley of the Moon Childrens Home. On January 18, 2001, petitions were filed on behalf of the minor and his brother alleging Mr. [Q.] inflicted serious injury to the minors mother, requiring her hospitalization. On February 6, 2001, amended petitions were filed on behalf of the minor and his sibling, additionally alleging the minors mother inflicted injury to the minor and failed to provide for her children and failed to ensure that they attended school regularly. On April 5, 2001, the allegations were found to be true and the minor and his brother were declared [section] 300 dependents. The minor and his brother stayed at Valley of the Moon Childrens Home for a brief period of time before being placed in a foster home. They resided in the foster home for approximately one to two years before being placed in Ms. [A.]s^[[2]^] home. [] In addition, Human Services reports reveal the minor alleged his father often struck him with a belt and his mother slapped him in the face and pulled out clumps of his hair.

Jose also reported to probation that he witnessed many domestic violence incidents between his mother and father throughout his childhood, claiming that on one occasion he saw his mother stab his father and on another occasion she ran over his father in a car. According to the report, Jose described his mother as crazy and indicated he had not had any contact with her in the past three years.

The probation department interviewed Ms. A., who explained that Jose and his younger brother had been placed in her home approximately three years earlier. She claimed that other than a period of three hours when she and her husband were both at work, Jose was closely supervised in her home. As related by the probation officer, She believes she and her husband and their two children have provided the minor and his brother with a structured, loving environment, and noted she is dedicated to helping the minor and his younger brother, and assisting them in any way possible in becoming successful adults. She indicated she does not allow drugs or alcohol in her home and searches the minors room on a regular basis. She stated, [H]e couldnt be in a better environment. I am strict and he doesnt run the streets and doesnt associate with the rest of the Q. family.  Ms. A. expressed shock and anger at Joses involvement in the incident and commented that although he may have difficulty controlling his anger in the community, she had never observed any violent behavior in her home. She opined that he is not a danger to the community and was adamant that she did not want him removed from her home, stating,  I will not give up on him. I am in it for the long-run. . . . He tries to act like a horrible kid, but hes not. He is very respectful and helpful in the home, yet hes very immature and obsesses with street gangs. 

As to Joses behavior while housed at Juvenile Hall following his detention, the probation report observed that Joses conduct was not trouble-free: While the minor was housed in Juvenile Hall, he was placed on room confinement status after he postured defensively and exchanged words with another resident. Juvenile Hall officials described the incident as gang-related. Approximately three days later, the minor restarted his room confinement status after he displayed challenging and grandstanding behavior in front of his peers towards the same resident that was involved in the aforementioned altercation. In addition, the minor tagged his shower shoes with a P and an L for Pachuco Locos, a subgroup of the Norteno street gang. He also tagged four dots at the top of one sandal representing the number four or fourteen for the Norteno street gang. Furthermore, the minor was sent out of school for the day after he refused to follow the teachers directives.

Concerning substance abuse issues, the report noted that Jose began consuming alcohol and smoking marijuana when he entered the foster care system, at one point requiring treatment for alcohol poisoning. Jose claimed he had not smoked marijuana or consumed alcohol since moving into his cousins home approximately three years ago. On one occasion, however, Ms. A. discovered a small quantity of marijuana and ecstasy in Joses bedroom, which she reported to law enforcement officials.

In terms of case assessment and service plan, the probation report summarized: Fifteen-year-old Jose . . . is before the [c]ourt following a sustained, undeclared violation of [Penal Code section 243, subdivision (d)]. The minor physically assaulted the victim after he stared at the minor, punching him several times in the face. According to the police report, the victim sustained a possible fractured orbital bone, and gang slogans were yelled during the incident. The minor denied any wrongdoing and blamed the victim for the offense. [] The minor has a prior history of assaulting another victim when the minor though the victim was mugging him. The minors cousin pledges her commitment and support towards the minor and believes she is providing adequate supervision and structure for him. However, the minor cannot be supervised 24 hours a day; and coupled with his lack of remorse, this department is concerned the minor may assault someone else whom he perceives is looking at him in the wrong manner. Whether the minor is a street gang member or just obsesses about gang members is not the issue. He is assaultive, he displayed gang-related behavior while in custody, and gang-related paraphernalia has been located in his home. [] While we have concerns about the potential danger to the community, the minors traumatic childhood and dependent history are relevant factors. The minors current social worker believes that home removal is contraindicated at this time, based on his positive adjustment at [school] and his current living situation. This matter was also discussed with a department supervisor, and it was decided the minor should be afforded one opportunity to remain in his cousins home, on Intensive Supervision. [] Therefore, with some hesitation, this department recommends that the minor be declared a ward in the [section] 602 system. If feasible, we would also recommend that this case retain dual status, and that [section] 300 proceedings be suspended rather than terminated, in the hope that Human Services can continue to provide additional therapeutic resources. It will be recommended he be placed on the Intensive Supervision program with appropriate conditions to include regular school attendance, chemical testing, participation in counseling, standard gang conditions, and community service work.

On June 1, 2005, Jose was released on Community Detention pending disposition on June 15, 2005. Two days prior to the disposition hearing, however, Jose absconded. On July 5, 2005, he was riding as a passenger in a stolen car in San Francisco when police officers attempted a traffic stop. Jose and the other occupants of the car fled but, after a brief search, he was arrested. The district attorney of San Francisco County declined to press charges, and on July 9, 2005, Jose was transferred to Sonoma County Juvenile Hall.

A supplemental probation report advised that in light of these recent developments, Ms. A. no longer believed it was in Joses best interest for him to return to her home at that time. She opined that he was in need of more supervision than she and her husband could provide and hoped the court would place Jose in a local program which would allow him to furlough to her home on weekends. She expressed a willingness to participate in family counseling sessions and hoped Jose could return to her home upon completion of the program.

The supplemental report also reported on Joses behavior at Sonoma County Juvenile Hall following his return on July 9, 2005, noting that he had been the subject of two incident reports where he and several other residents caused disturbances in the maximum security unit. In one of the incidents, the staff was forced to subdue Jose with pepper spray after he refused to comply with staff orders.

In terms of case assessment [and] service plan, the supplemental report offered the following recommendation: This matter was discussed before the departmental screening committee and, due to the minors inability to return to his guardians home, suitable placement was the only available option. Therefore, this department recommends the minor be declared a ward of the court and ordered suitably placed. It will also be recommended that all [section] 300 proceedings be dismissed at this time.

At a July 26, 2005, disposition hearing, Judge Tansil declared Jose a ward of the court, ordered him to a placement program under the supervision of the probation department, and suspended section 300 proceedings. On August 18, 2005, Jose was placed at Marys Help.

On December 22, 2005, the probation department filed a notice of violation pursuant to section 777 alleging that on December 21, 2005, Jose absconded from Marys Help while on an outing in San Francisco. Nine days later, Jose self-surrendered to the probation department.

On January 4, 2006, the court held a violation of probation hearing and sustained the section 777 petition based on Joses admission. The court then ordered Jose detained at Juvenile Hall pending a supplemental disposition hearing on January 19, 2006.

In a supplement probation report prepared for the January 19 hearing, the probation department related Joses reasons for absconding from Marys Help. According to Jose, he ran from the program because he was having problems with a particular staff member and did not feel safe. Once he learned they were going on an outing, he decided to leave the program so he packed up his belongings, snuck his backpack onto the van, and jumped out of the van once it was in San Francisco, staying at two different friends homes and laying low while he was on the run.

The report also detailed Joses troubled behavior during his placement at Marys Help, explaining that he had a difficult time adjusting to the program and behaving in a socially acceptable way with his peers, and that he left the facility without permission on at least one occasion. He was also found in possession of a knife, which was of great concern to the program director and the probation officer: The minor admitted to this officer and the director that he planned on using the knife and felt he needed it. He said[] he was really on edge and thought he was going to lose it. The minor was counseled extensively about the severity of this and he could have been arrested and automatically discharged for being in possession of this knife. The program director advised the minor during that monthly site visit that if he was not able to change his behavior, he would be discharged. Considering the minors behavior, the program was more than gracious in giving him another chance to turn things around; instead, the minor went [AWOL] the day after this meeting while on an outing to San Francisco.

The probation report concluded: This officer believes the minor has potential and is a likeable young man, but his behavior and his inability to make good decisions is concerning. The minor was not able to maintain appropriate behavior while in a structured setting, it does not seem to be in the best interest of the community or the minor to return home. He has not shown through his actions that he would be able to keep himself out of trouble. Therefore, with the above information in mind, it is respectfully recommended that the minor be retained a ward of the court and all prior orders for placement remain in full force and effect . . . . It is also recommended that the court declare the minors undeclared [Penal Code section 243, subdivision (d) allegation] a felony at this time.

At the January 19 hearing, Judge Tansil adopted the recommendations of the probation department, retaining Jose as a ward of the court, maintaining the prior order for placement, and declaring the previously undeclared Penal Code section 243, subdivision (d) violation to be a four-year felony. Jose was held at Juvenile Hall pending further placement.

Two days after the hearing, Jose was walking to his room at Juvenile Hall when he abruptly ran over to another resident and began punching him in the face; a third resident joined in. The three residents were ordered to the ground, but Jose did not comply so the staff sprayed him with pepper spray to force his compliance. Jose was then handcuffed, place on room confinement, and later moved to another unit. According to the juvenile referral form signed by the supervisor, Jose, a self-admitted Norteo, ran over and punched a Sureo resident in the face. Jose denied to the probation officer that he was a gang member, although he acknowledged associating with gang members.

On January 23, 2006, the District Attorney for Sonoma County filed a second section 602 petition, alleging that Jose committed a misdemeanor assault in violation of Penal Code section 242. On January 26, Jose admitted the violation, and the court referred the matter to the probation department for a supplemental dispositional report. Jose was detained at Juvenile Hall pending further hearing.

In a supplemental disposition report, the probation department summarized Joses placement history as a ward of the court, including the most recent incident at Juvenile Hall that resulted in the second section 602 petition. The department then expressed its belief that Jose is a danger to himself and others and needs to be placed in as secure a setting as possible. This department believes he needs to be in a remote, structured, and highly monitored environment. The report explained that the probation department had been unsuccessful in locating such a program in California that would accept Jose and therefore recommended out-of-state placement.

At a February 9, 2006, disposition hearing, Judge Tansil continued Jose as a ward of the court and ordered him to remain in placement. Judge Tansil found that out-of-state placement would be in Joses best interest, and on May 4, 2006, Jose was placed at Rite of Passage Silver State Academy (ROP) in Nevada.

Late on the night of May 27, 2006, Jose ran from ROP. Program staff gave chase on foot, but Jose escaped in a waiting car.

On June 5, 2006, the probation department filed a second notice of violation pursuant to section 777, alleging that Jose had absconded from ROP and his whereabouts were unknown.

Joses whereabouts remained unknown until November 18, 2006, when he was arrested by Sonoma County sheriff deputies following a pursuit in which he and a fellow camp escapee attempted to elude capture by jumping fences and hiding from law enforcement, necessitating the use of a helicopter to determine their whereabouts. After his arrest, Jose attempted to keep his identify from authorities by providing a false identification. Even upon his booking at Juvenile Hall, Jose continued to claim he was someone else, but a staff member ultimately recognized him.

On November 29, 2006, Jose admitted the probation violation, and the court sustained the petition. The matter was once again referred to probation for a supplemental dispositional report.

Jose admitted to the probation department that he absconded from ROP with the help of a friend whom he had called ahead of time for a ride. As to his activities for the nearly six months following his disappearance from ROP, Jose claimed he has been residing in the San Jose area working in the construction trade. He further verified he has not attended school because he assumed there was an active warrant for his arrest. The minor also confirmed he has been using a false identity during his AWOL. When asked why he did not turn himself in and why he alluded [sic] law enforcement at the time of his arrest, the minor stated that [l]ast time I did the right thing and turned myself in, my [probation officer] didnt like me and made me wait six months for ROP.  Jose expressed a desire to be released on Community Detention so he could resume his job and attend school, stating,  In the last seven months I have learned a lot about life that ROP couldnt have taught me. Ive learned to grow up. I would just like a shot because I know I can do it and stay out of trouble. I didnt turn myself in because I was afraid I would do a lot of time. [] . . . [A]ll this stuff happened when I was young; I will handle my business; I can have my name back so I can go to school and keep my job. 

On December 7, 2006, Jose appeared before the Probation Departments Screening Committee, where he reiterated his belief that he should be released on Community Detention. However, in view of Joses violent behavior and unprovoked assault of others, his history of placement AWOL, his planned escape from ROP, his actions of fleeing from law enforcement, his overall unsatisfactory probation compliance, and his belief that he does not need treatment services, the committee unanimously agreed that Jose should be committed to the DJF: Both the Screening Committee and the Probation Department are extremely alarmed by the minors long-standing history of unprovoked violent assault of others that precipitated his need of out-of-state placement services. What is further alarming is the minors obsession with street gang association and his sophistication with regard to escaping and fleeing from both law enforcement and the [c]ourts supervision. It is the strong opinion of the Probation Department and Screening Committee that the minor continues to demonstrate an unwillingness to acknowledge his dangerous behavior, as well as refusing to participate in behavior modification treatment services necessary to abate and reform his destructive behavior. At this time, the minor is viewed as a dangerous individual with a criminal and escape sophistication beyond the local and out-of-state treatment services. Thus, in order to protect the community and provide the minor with the behavior modification and education services necessary to correct his destructive and dangerous behavior, it is the adamant recommendation of the Screening Committee and the Probation Department that the minor be committed to the [DJF].

On January 19, 2007, Judge Tansil held a disposition hearing, where counsel for Jose minimized Joses sustained offenses as amounting to little more that two fistfights and urged the court to consider Joses early childhood and the upheaval he has in his life and give him one more chance by ordering camp placement. Counsel pointed out that while Jose was on the run following his escape from ROP, he remained trouble-free: [H]es not gotten into any trouble with the law. Theres been no violence. . . . [O]f course, its not good that hes been out and that he was AWOL. But he at least was keeping his nose clean and staying out of trouble and . . . had no fights and no nothing. He was just working and staying out of trouble.

The deputy district attorney countered that Jose was not in this situation because of two minor fistfights: Now the first event was not just a fistfight that brought him to the [c]ourts attention. It was a gang attack. Hes proven to be entrenched in the gang, which makes any juvenile or adult that much more dangerous to the community. He wasit wasnt just a fistfight. Obviously, the victim had some structural damage to the face, temporal lobe, zygomatic arch smashed. And the evidence was he had a padlock in his hand and used it as a weight and brass knuckles to do that damage to the victim, who was also a gang member. So he poses a significant danger. The crimes are serious. The community is in danger. The escape itself shows some sophistication in having a get-away car and succeeding for some time.

Joses mother attended the hearing and pleaded for leniency from the court: I wish my son was given an opportunity. He really has been through a lot of bad. I can understand the principle, especially, you know, when a person is in an environment with other angry boys. I understand what it might look like on paper. But I, I know my son as being caring, sensitive. He acts like he does. But he never talks back, lashes out, anything like that, that Ive seen. And, you know, its a shame, because before he was sent elsewhere he was doing very well in school, he was going to his classes, was very bright and seemed to be headed in the right direction. Id like to see him be put in an institution where he can go in the right direction, not be called a failure, because I dont believe my son is a failure.

Jose himself also requested another chance, claiming to now realize how good his guardians were to him and acknowledging he had been ungrateful for their support. He blamed this on his youth, saying he had been a confused child who did not know what he wanted. He denied he was a threat to society, explaining that during his most recent AWOL, he had been a productive member of society with a job in which he [did] texture, put in hardwood floors, carpet, tiles, [] remodeling bathrooms and all that kind of stuff. He then requested a camp placement where he could learn more skills like forklift or wood shop.

After hearing argument, Judge Tansil set forth his position, beginning with an outline of Joses criminal past and failures at placement, as we have detailed above. The judge then concluded: So this is a serious history. He has had good opportunities. It is sad that his dads in prison, and maybe he has been influenced by that model. But the male guardian could have been an excellent alternative model for him if he had just stayed at home and accepted the love and care those people were providing, gone to school and done okay on his probation services. There are connections to the Norteno criminal street gang. That complicates things. The minor did not express any interest in camp or any placement or program. He wanted home supervision, something that he had left on earlier, absconded on earlier in the history of the case. [] I do agree with the screening committee that this [c]ourt has made a good-faith effort to help him, that he has reached the point where he is dangerous to the community and to probation and hall staff. This is not a case where I feel comfortable just having him stay in the hall. Hes not a candidate for camp. Hes too violent, hes too non-compliant, he runs too much. There are a host of reasons why he could not successfully be placed in an open camp program. That would not work. In this case I do believe that the facts and circumstances justify the . . . [DJF]. I do not do this lightly. It is a last resort.

Judge Tansil then made the following findings: The minor in this case does come under the provisions of [s]ections 602 and 777 of the juvenile court law and is eligible for commitment to the CYA, which is now known as the Department of Juvenile Justice. The [c]ourts previous disposition has not been effective in rehabilitation of the minor. The welfare of the minor requires that custody be taken from the minors parents and the guardians. . . . [] . . . [] Now I did note the argument that the institution is not perfect. The [c]ourt agrees. The state has the institution under very close scrutiny. The institution is being reformed. It has not been fully reformed, but the Governors office and the [L]egislature and others are working diligently to make sure that that happens. They will make the institution stronger. It still needs to be improved. It is, in my opinion, still a last resort for cases that involve a kid who is a danger to the community and has not been rehabilitated and can only be worked with in terms of rehabilitation in a very structured, safe setting. And for the communitys safety, this decision would be necessary. [] So the young man is committed to the [DJF] . . . . The basis of the commitment will be the felony Penal Code [s]ection 243[, subdivision(d) violation] from a sustained petition in June of 05 plus consecutive time from the misdemeanor Penal Code [s]ection 242 [violation] from a petition of January of 06. The previous placement order was vacated, and Jose was committed to the DJF for a term of 48 months on the Penal Code section 243, subdivision (d) violation and two months on the Penal Code section 242 violation, to be served consecutively, with credit for 254 days of time served.

This timely appeal followed.

II. Applicable Law

A.      Statutory Framework

The purpose of the juvenile delinquency law is twofold: (1) to serve the best interests of the delinquent ward by providing care, treatment, and guidance to rehabilitate the ward and enable him or her to be a law-abiding and productive member of his or her family and the community, and (2) to provide for the protection and safety of the public . . . .  (In re Charles G. (2004) 115 Cal.App.4th 608, 614-615, quoting  202, subds. (a), (b) & (d).) Section 202 was amended in 1984 to shift its emphasis from a primarily less restrictive alternative approach oriented towards the benefit of the minor to the express protection and safety of the public. [Citations.] (In re Michael D. (1987) 188 Cal.App.3d 1392, 1396; see also In re Javier A. (1984) 159 Cal.App.3d 913, 958.) While greater emphasis has been placed on punishment for rehabilitative purposes and on a restrictive commitment as a means of protecting the public safety, commitment to DJF cannot be based exclusively on retribution. (In re Michael D., supra, 188 Cal.App.3d at p. 1396.) At disposition, the juvenile court should act consistent with these purposes. (In re Schmidt (2006) 143 Cal.App.4th 694, 716.)

In order to commit a minor to the DJF, there must be evidence in the record demonstrating both a probable benefit to the minor by a [DJF] commitment and the inappropriateness or ineffectiveness of less restrictive alternatives. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396; In re George M. (1993) 14 Cal.App.4th 376, 379;  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 education discipline or other treatment provided by the [DJF].].)

In making its dispositional order, the court must 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, quoting In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684.) In addition to any other relevant and material evidence, the court should also consider (1) the age of the minor, (2) the circumstances and gravity of the offense committed by the minor, and (3) the minors previous delinquent history. ( 725.5.)

B. Standard of Review

We review the juvenile courts decision to commit Jose to the DJF for abuse of discretion. (In re Robert H., supra, 96 Cal.App.4th at pp. 1329-1330; In re Asean D. (1993) 14 Cal.App.4th 467, 473; see also In re Emmanuel R. (1994) 94 Cal.App.4th 452, 465 [   The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.  [Citation.] [Citation.]] .) 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. (In re Michael D., supra, 188 Cal.App.3d at p. 1395; accord, In re Robert H., supra, 96 Cal.App.4th at pp. 1329-1330; In re Asean D., supra, 14 Cal.App.4th at p. 473.) Substantial evidence is  evidence which is reasonable, credible, and of solid value . . . . [Citation.] (In re Paul C. (1990) 221 Cal.App.3d 43, 52.)

We conclude that the court acted in conformance with the above standards and Joses commitment to the DJF did not constitute an abuse of discretion.

III. Discussion

A. The Record Contains Substantial Evidence that Jose Would Probably Benefit from a DJF Commitment

At the time of commitment, Jose was a troubled 16 year old with a history of unprovoked, violent, gang-related assaults. These assaults began when 14-year-old Jose and others attacked a middle school student, repeatedly hitting and kicking the student, an assault during which Jose wore brass knuckles or something similar. The following year, Jose viciously attacked a 13-year-old boy, causing the boy to suffer a fractured orbital bone. While in Juvenile Hall pending placement for that attack, Jose was involved in two more disturbances. And nearly a year later Jose found himself back at Juvenile Hall, where he once again attacked a fellow resident. So persistent was Jose in his violent attacks at Juvenile Hall that the staff was forced to employ pepper spray in order to subdue Jose and gain his compliance with directives. The evidence demonstrates that Jose was entrenched in a gang culture, refused to take responsibility for his actions, rejected the support and loving environment provided by his guardians, and repeatedly failed to curb his violent behavior.

Additionally, Jose has a history of fleeing from prior placements, having absconded from Community Detention, Marys Help, and ROP, two escapes of which including preplanning and demonstrated a degree of sophistication. After his escape from ROP, he remained AWOL for nearly six months, existing under a false identity and leading police on a helicopter-assisted chase once his whereabouts were discovered.

Given these circumstancesJoses unprovoked acts of violence, his consistent unwillingness to stay put at alternative placements, his refusal to accept and take advantage of the stable and loving environment provided for him by his guardians, his continued gang affiliationJose was clearly in dire need of a structured and rigid rehabilitation program such as that available at the DJF. This evidence easily supports Judge Tansils conclusion that Jose would benefit from the structured, safe setting offered by the DJF.

Jose disputes this conclusion, citing In re Joe A. (1986) 183 Cal.App.3d 11, 29, for the proposition that [t]o make a finding of probable benefit, it is required that the juvenile court first identify the minors rehabilitative needs and then determine that the programs provided at [DJF] will adequately address those needs. This required finding of probable benefit is particular to the individual minor at the time of commitment and cannot be based on generalized observations about [DJF]s services. He then contends that, here, the court did not make a particularized finding as to Joses rehabilitation needs.

This argument is flawed because it suggests that in order for the court to have made a particularized finding as to Joses rehabilitation needs, the court was required to enumerate the specific programs available at the DJF that would provide Jose with the help he needed and to detail, precisely, how Jose would benefit from the commitment. While the juvenile court must find DJF commitment to be of probable benefit to the minor ( 734), the specific reasons for such commitment need not be stated in the record. Rather, that determination must be supported by substantial evidence contained within the record. (In re Robert D. (1979) 95 Cal.App.3d 767, 773.) Here, Judge Tansil specifically stated that he had considered Joses unique circumstances and facts . . . and his background. And Judge Tansil found that in light of these factors, Jose would benefit from the structured, safe setting of the DJF. This finding was amply supported by the evidence, and the absence of specificity regarding the programs available at the DJF does not negate this result.

Jose also contends that the courts decision to commit him to the DJF was based only on two factors, namely the belief that [Jose] was a danger to the community, and the fact that he had left two prior placements without permission. From this, Jose concludes that the purpose of the DJF commitment was to punish Jose for his conduct, which, he claims, was contrary to the rehabilitative purpose of juvenile law. In fact, while rehabilitation is indeed a significant purpose of the juvenile justice laws, the emphasis, as noted above, is on the express protection and safety of the public.  (In re Michael D., supra, 188 Cal.App.3d at p. 1396 [greater emphasis placed on punishment for rehabilitative purposes].) Certainly, protecting society from Joses unprovoked, continuing violent acts was a legitimate consideration that supported the commitment decision.

Jose also appears to suggest that the commitment decision was not supported by admissible evidence because Judge Tansil did not consider testimony of witnesses, tangible objects or sights, as Jose claims evidence was defined in People v. Garcia (2005) 36 Cal.4th 777, 798. This contention is, quite simply, incorrect. Section 706 makes clear that the probation departments disposition report is properly before the courtindeed, the court must consider the reportwhen deciding on a disposition. And Judge Tansil expressly noted that he complied with that requirement, looking at everything very carefully in the report and in the file.

Finally, Jose argues that [a DJF] commitment should be reserved for only the most violent juvenile offenders given the serious problems at the DJF, problems that the court itself acknowledged at the disposition hearing but, according to Jose, ultimately ignored. In claimed support, he references Senate Bill No. 81 (SB 81) which, effective September 1, 2007, reserves DJF commitment for minors who have a sustained section 707, subdivision (b) offense.[3](Stats. 2007, ch. 175, 19, 20, 22 & 24.) According to Jose, SB 81 is a statement of current public policy which recognizes that DJ[F] has not been reformed to such a degree that any but the most serious offenders should be committed to [DJF], and [Jose] does not qualify as one of those offenders.

Jose is correct that as of September 1, 2007, DJF commitment is reserved for minors who have committed the most serious offenses. ( 707, 731 & 733.) And he is also correct that he does not have a sustained violation that would qualify him for DJF commitment. Thus, if his disposition hearing had been held on or after September 1, 2007, he would not be eligible for DJF commitment. However, Joses disposition hearing occurred on February 9, 2006, well before the current law came into effect. We see nothing in the statutes as amended suggesting that the law was intended to apply retroactively, and Jose does not make such an argument. The amendments are thus of no avail to Jose.

Jose is not without recourse, however. The new law allows the juvenile court to recall a minor who was committed to the DJF prior to September 1, 2007, but who has not sustained a qualifying offense for the purpose of ordering an alternative disposition. ( 731.1, added by Stats 2007, ch. 175, 20.) While we must affirm Judge Tansils order committing Jose to the DJF because it was supported by substantial evidence, the judge may no longer believe that DJF commitment is a suitable disposition for him, given the statutory amendments. But that is for Judge Tansil alone to decide.

B. The Record Contains Substantial Evidence that a Less Restrictive Placement Would Be Ineffective

Jose apparently does not challenge the existence of substantial evidence supporting the second criterion the court must consider before ordering a DJF commitmentwhether a less-restrictive placement would be ineffective or inadequate. (In re Angela M., supra, 111 Cal.App.4th at p. 1396.) We therefore dispose of this factor with a brief mention that Joses consistent failure at alternative dispositions provided ample evidence to support Judge Tansils determination that less-restrictive placement was no longer an option. This history has been fully detailed above, but we summarize it here for emphasis. Following his initial arrest in 2005, Jose was released on Community Detention pending disposition. After less than two weeks, he absconded from Community Detention. Jose was then placed at Marys Help, but he again failed on that placement, absconding within a few months of placement. Jose was then sent out-of-state to ROP, yet he again failed at that placement, not only absconding but doing so in a sophisticated manner that required advanced planning. Judge Tansil described ROP as kind of out in the middle of nowhere in Nevada. Its in a good location for the program thats sort of before [DJF], because its difficult to leave there. Nevertheless, that is precisely what Jose did. In light of this history, it is abundantly clear to us that anything less than a locked facilitythat being the DJFwould be ineffective for Jose. When afforded less-restrictive alternatives before, Jose has not once, not twice, but thricefailed to abide by the courts order. Substantial evidence clearly supports the conclusion that this time around there was no appropriate alternative but DJF commitment.

IV. Disposition

The order committing Jose to the DJF is affirmed.

_________________________

Richman, J.

We concur:

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Kline, P. J.

_________________________

Haerle, J.

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[1] Prior to July 1, 2005, the DJF was known as the California Youth Authority (CYA). (Welf. & Inst. Code, 1703, subd. (c); Gov. Code, 12838, 12838.5.) The record contains references to both the DJF and the CYA. We shall refer to the DJF throughout for purposes of consistency.

All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[2] Ms. A. is Joses cousin and was his guardian at the time of the April 27, 2005 incident.

[3] SB 81 was pending at the time Jose submitted his opening brief.