In re Paul S.

Filed 2/5/08 In re Paul S. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Butte)

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Over a two month period, 14-year-old Paul S. attempted to steal a car radio, stole alcohol from a grocery store, attempted another auto theft, attacked a teacher, stole a purse from a truck, and threatened a robbery victim with a knife. An amended petition charged Paul with attempted second degree robbery, second degree commercial burglary, petty theft, damaging or taking part of a vehicle, and battery on a school employee. (Pen. Code, 211, 459, 484, subd. (a), 243.6; Veh. Code,  10852.)^[1] Paul admitted all counts.

While in juvenile hall, Paul beat another minor. A subsequent petition charged him with assault with a deadly weapon. ( 245, subd. (a)(1).) Paul also admitted this count. After his release, Paul got into a fight at school, became menacing toward the school principal, and spoke disrespectfully to the police officer who had been summoned to the school. He removed his ankle monitor and stole more alcohol from a grocery store. During a second stay in juvenile hall, Paul attacked another minor until dissuaded by pepper spray. The trial court committed Paul to the California Youth Authority for a period not to exceed 72 months. Paul appeals, challenging his commitment. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In December 2005 an officer saw Paul sitting in the drivers side of a car with his legs outside the vehicle.^[2] While the officer observed, Paul got out of the car and rode his bicycle across the street to another car, crouched down next to it, opened the door, and climbed in, again with his legs pointing out. Neither car belonged to Paul, nor did he have permission to enter them. Nothing was taken from either car. However, it appeared as though Paul had tried to remove the car radios from the vehicles.

In January 2006 Paul entered a grocery store, put two bottles of alcohol in his coat pocket, and attempted to leave the store. He was detained and admitted entering the store with the intent to steal.

That same month, Paul opened the door of a car and removed an unknown item. When the owner confronted him, Paul removed two packs of cigarettes from his pocket. The owner reported the cigarettes were missing from the car.

Later that month, Paul and another minor were fighting, when a teacher intervened. Paul pushed the teacher several times, punched him, and told him to get out of the way. Paul then fled. Paul later denied hitting the teacher but admitted grabbing his arm and telling him to get out of the way.

The following month, Paul was seen taking something from inside a truck. An officer detained Paul, who admitted taking a purse from the truck and throwing it near a levee. Paul helped recover the purse.

Later that month, Paul and another minor approached the victim, asking for a cigarette. After the victim said he did not have any, Paul pulled out a knife and demanded the victims money. The victim stood his ground, and Paul and the other minor fled.

An amended petition alleged Paul was a minor falling within the provisions of Welfare and Institutions Code section 602. The petition charged Paul with one count of attempted second degree robbery, one count of second degree commercial burglary, two counts of petty theft, two counts of damaging or taking part of a vehicle, and one count of battery on a school employee. (Pen. Code, 211, 459, 484, subd. (a), 243.6; Veh. Code,  10852.) Paul admitted all counts as alleged. A disposition hearing was continued to allow for a mental health evaluation of Paul.

While in custody in juvenile hall, Paul was found standing over another minor, repeatedly punching the victim in the face and head. The victim lay on his back with his arms over his head in a defensive position. The victim suffered an open laceration to his face and a swollen eye. Shortly before being hit, the victim heard someone yell, Hey Scrap, a derogatory term for a Sureo gang member. Paul is associated with the Norteo gang.

A subsequent petition alleged Paul committed an assault with a deadly weapon and personally inflicted great bodily injury upon the victim. ( 245, subd. (a)(1), 12022.7, subd. (a).) Paul admitted the allegations of the petition.

The trial court held a dispositional hearing on both petitions, placed Paul on probation, and ordered that he be placed in an appropriate out-of-home placement. The probation department attempted to place Paul in several group homes to no avail. After a temporary release to his father, Paul was released to his mother after time served in juvenile hall.

In October 2006 Paul was released from custody into the electronic monitoring program. A few days later, Paul fought with another student at school. School staff broke up the fight. Paul swore at both the principal and a responding officer. The next day, Paul severed his ankle monitor and left his mothers house without the knowledge or permission of his probation officer.

A week later, Paul entered a store, placed a bottle of vodka in a shopping cart, and pushed the cart out of the store. Store employees detained him and he gave responding officers a false name. Paul was taken to the hospital because of his level of intoxication.

A subsequent petition charged Paul with petty theft. ( 484.) The probation department filed a violation of probation alleging Paul severed and removed his ankle transmitter, left his court-ordered placement without permission, and committed a petty theft. Paul admitted all allegations. A later petition charged Paul with committing a battery on school property. ( 243.2, subd. (a).)

While in custody in juvenile hall, Paul suddenly attacked another minor. Paul punched the victim in the head and stomach. The victim did not fight back. After Paul refused to stop, the staff used pepper spray, which temporarily stopped the fight. Paul attacked the victim again, punching him repeatedly in the head. The staff again sprayed Paul with pepper spray, but he continued to strike the victim until physically restrained by the staff.

An amended subsequent petition charged Paul with battery. ( 242.) Paul admitted the allegations. The trial court committed Paul to the California Youth Authority for a period not to exceed 72 months.^[3] Paul filed a timely notice of appeal.

DISCUSSION

Paul contends the trial court abused its discretion in committing him to the DJJ. According to Paul, he received no treatment services. He also argues the court should have placed him with Rites of Passage, which accepted him for placement. Finally, Paul argues the record does not support a finding that a DJJ commitment would benefit him.

Background

A licensed psychologist examined Paul and filed his report in June 2006. The psychologist noted that Pauls parents separated when he was six, and he began engaging in substance abuse at age nine. The psychologist stated most of Pauls brushes with the law took place when he was living on the streets after being thrown out of his home by his mothers boyfriend. The psychologist diagnosed Paul as suffering from a conduct disorder, a depressive disorder, antisocial personality traits, and a substance abuse problem.

The psychologist believed Paul might benefit from psychotropic medication. According to the psychologist, Paul deeply resented authority figures and punishment only reinforced his rebellious, defiant, and suspicious attitudes.

At Pauls first dispositional hearing, the trial court ordered as a condition of probation that he be placed in an appropriate out-of-home placement. The probation department sought placement in a foster or group home while Paul remained in juvenile hall. Paul was denied placement in three programs because he was taking the prescribed psychotropic medication Lithium. Another possible placement facility put Paul on a waiting list, indicating they would like to see improvement in his performance at juvenile hall prior to accepting him.

A placement review filed August 18, 2006, states that Rites of Passage would not accept Paul while he was taking Depakote. According to the placement review: The minors prescribed psychotropic medication as well as his aggressive and disrespectful behavior in juvenile hall have been challenges to place the minor. However, it appears the minors behavior has improved slightly more recently.

A probation report later that month noted [n]umerous packets have been sent to prospective placements but because of the minors age, law violations and mental issues and medications, he has been turned down by these placements. The trial court authorized Pauls temporary release from juvenile hall. A subsequent placement review stated Pauls prescribed psychotropic medication and his aggressive behavior made placement difficult. However, the review also noted Paul had made the honor roll at school and his behavior had noticeably improved during the review period.

A placement review filed October 13, 2006, stated: The Placement Unit has exhausted all resources and are unable to find an appropriate placement for the minor. Probation is considering other placement options for the minor. A home visit was conducted to the mothers residence and it appears an adequate living environment. Both the minor and his mother have expressed a desire for the minor to be returned to her residence. A few days later, the trial court ordered Paul placed with his mother with electronic monitoring.

Five days after being placed on electronic monitoring, Paul removed the monitoring device, then later stole vodka from a grocery store, and was returned to juvenile hall. A probation report filed two months later catalogs Pauls continuing misbehavior in juvenile hall. Paul swore at staff, failed to follow directions, threw things, and continually argued with staff. Paul was placed on room rest for 48 hours, but [u]nfortunately, discipline does not act as a deterrent to modify his negative behavior while in custody. The staff noticed wide mood swings in Pauls behavior, and the report noted Paul occasionally refused to take his medication. The report recommended a commitment to the DJJ.

The trial court, in February 2007, ordered an inquiry into other placement options, including Rites of Passage. The court granted the probation department discretion for an emergency placement of Paul in the DJJ if he failed to cooperate.

The following month, a behavior review by the probation department stated Pauls behavior continued to be unacceptable. He refused to follow directions, was disrespectful, cursed at staff, prevented others from sleeping, made racial comments, tried to flood the room, pushed another ward, spat at a ward, and threw over 100 toilet paper balls from his room into the common room. Paul was roomrested for failing to allow staff to verify that he took his medication and for exposing his buttocks to staff on three separate occasions. The probation department again recommended commitment to the DJJ.

During the disposition hearing, the trial court observed that it did not want Paul to spend time in prison, but the court also did not believe Paul would benefit from being placed in a mental hospital. The court further stated it did not see Paul benefiting from being put in a placement so I can just kind of slap him on the bottom and say, gosh, try to be a little more age appropriate and do the best you can, because I think that will be nothing but a disaster and will make a much worse situation than we have now.

Defense counsel argued there was a suitable placement that had accepted Paul. Defense counsel also pointed out that no placements had been attempted, only two brief periods in which Paul was placed with his father and mother.

The court considered both Pauls best interests and the interests of others in weighing a DJJ commitment. The court noted that recently Pauls behavior had been such a concern that temporary housing in the DJJ was considered for the safety of everyone, including Paul. According to the court: So I think were on the right track here in terms of his behavior because it is getting better in the sense that we dont have life [and] limb at risk every day. But I can recall very well when I indicated Id be very openminded to ROP [Rites of Passage], not that I was going to buy into it, but I would certainly consider it. But I expected to see some continuation in good behavior, and I havent. And that tells me a lot. [] I would not send him to ROP because somehow I have a vested interest because hes letting me down on some personal level. Heck, I could care less. Theres no pride of authorship in anything I say. But when the chips are down, he simply cant control his behavior.

The court recounted a year and a half of efforts on Pauls behalf. Pauls behavior had stymied efforts to help him, and he continued to be disruptive at school, in juvenile hall, and with his father and mother. The court concluded: [I]t seems to me that the Youth Authority is the only present, viable alternative to teach Paul that he has to learn to live by the same rules all the rest of us do if hes going to have any life at all. Anything short of the DJJ would put[] others at great risk.

Finally, the court determined Paul would benefit from the reformatory and educational aspects of the DJJ. The court found Paul had no exceptional educational needs.

Standard of Review

We review a commitment decision for an abuse of discretion, indulging in all reasonable inferences in support of the juvenile courts determination. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) The objective of juvenile court law is rehabilitation, contemplating a progressively more restrictive and punitive series of dispositions starting with home placement under supervision, moving on to foster home placement, placement in a local treatment facility, and, as a last resort, placement at the DJJ. (In re Teofilio A. (1989) 210 Cal.App.3d 571, 576-577 (Teofilio A.).)

However, while the DJJ is considered a final treatment resource, there is no absolute rule that a DJJ commitment should never be ordered unless less restrictive placements have been attempted. The court may consider a DJJ commitment without previous resort to less restrictive placements. The record need only show probable benefit to the minor from a DJJ commitment and that less restrictive alternatives were considered and rejected. (In re Ricky H. (1981) 30 Cal.3d 176, 183 (Ricky H.); In re Asean D. (1993) 14 Cal.App.4th 467, 473; Teofilio A., supra, 210 Cal.App.3d at p. 576.) A DJJ commitment will not be deemed an abuse of discretion where the evidence demonstrates a probable benefit to the minor from the commitment and that less restrictive alternatives would be ineffective or inappropriate. (In re Pedro M. (2000) 81 Cal.App.4th 550, 555-556.)

Discussion

Paul contends the court abused its discretion in committing him to the DJJ because it failed to provide him with services from alternative sources. According to Paul, over the nine-month period that the minor was within the jurisdiction of the juvenile court, no program of supervision or treatment was even attempted.

The record belies Pauls claim. The court held a dispositional hearing in June 2006 and placed Paul on probation, ordering that he be placed in an appropriate out-of-home placement. The probation department attempted to place Paul in a group home, but his admission was denied based on his prescribed medication and his aggressive behavior in juvenile hall. Five different placements denied Paul admission. One placement, Youth for Change, placed Paul on a waiting list, pending improvement in his behavior.

After no placements proved feasible, the court ordered Paul temporarily released to his father, based on improvement in his behavior. After Paul began to have difficulty in his fathers home, the court revoked the release. The court again ordered the probation department to find a suitable placement.

Later that month a placement review stated the placement unit had exhausted all resources and was unable to find an appropriate placement for Paul. The placement review also stated probation was considering other placement options and found Pauls mothers home an adequate living environment. The court released Paul to his mother on a temporary and trial basis. Shortly thereafter, Paul severed his electronic monitoring device, left home, and was soon arrested for petty theft.

The record reflects efforts on the part of the court, the probation department, and Pauls parents to find a suitable placement for him. These efforts came to naught, based partly on Pauls disruptive and aggressive behavior and on his prescribed use of psychotropic medication. Although Paul was not successfully placed in a local facility, many attempts were made to secure an alternative to a DJJ placement. As the People point out, there is no absolute rule that a DJJ commitment should never be ordered unless less restrictive placements have been attempted. (Teofilio A., supra, 210 Cal.App.3d at p. 577; Ricky H., supra, 30 Cal.3d at p. 183.)

Paul agrees the probation department tried to find treatment and supervision programs but reiterates that he never received any actual treatment. However, less restrictive placements do not actually have to have been tried. (Teofilio A., supra, 210 Cal.App.3d at p. 577.) All that is required to support a DJJ commitment is evidence in the record supporting a determination that less restrictive alternatives are ineffective or inappropriate. (Ibid.) Such evidence exists in the record before us.

Paul also argues no substantial evidence supports the courts finding that a DJJ commitment would benefit him. 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. (Welf. & Inst. Code, 734.)

The People contend Pauls substance abuse problem and problems with anger management make him a candidate to benefit from a DJJ commitment. We agree.

Pauls substance abuse problems manifested themselves in his theft of alcohol and intoxication when arrested. In addition, he has admitted a history of substance abuse encompassing a wide variety of drugs. The record reveals a minor in dire need of substance abuse counseling.

In addition, Pauls behavior in committing the crimes and his subsequent actions in juvenile hall show an increasing propensity toward violent behavior. Pauls lack of remorse and his aggressiveness, disrespect, and refusal to cooperate make him a prime candidate for anger management counseling. Moreover, Paul admitted being associated with a gang, and several of his offenses are gang related.

The court also considered and rejected less restrictive alternatives for Paul, finding an alternative placement will be nothing but a disaster and will make a much worse situation than we have now. The record supports this determination. Pauls infractions were becoming increasingly more violent and his behavior in juvenile hall progressively more aggressive. Efforts to place him with either parent proved futile. Substantial evidence supports the courts conclusion that a less restrictive alternative would be ineffective.

Paul argues the court should have placed him with Rites of Passage, which accepted him for placement. However, the court considered Rites of Passage if Pauls behavior in juvenile hall supported such a placement. Unfortunately, Pauls behavior continued to deteriorate, and the court stated it would not place him with Rites of Passage because he could not control himself.

The court concluded Paul would benefit from the reformatory and educational aspects of the DJJ. Substantial evidence supports this finding, and the court properly exercised its discretion in committing Paul to the DJJ.

DISPOSITION

The judgment is affirmed.

RAYE , J.

We concur:

NICHOLSON , Acting P.J.

CANTIL-SAKAUYE , J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] The facts surrounding the charges are taken from the probation reports.

^[3] The California Youth Authority was renamed the California Department of Corrections and Rehabilitation, Division of Juvenile Justice effective July 1, 2005. (Gov. Code, 12838, subd. (a).) For the sake of clarity we will refer to it as the DJJ forthwith.