In re D.L.

Filed 6/12/08 In re D.L. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Peter A. Warmerdam, Juvenile Court Referee.

Jackie Menaster, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John G. McLean, Deputy Attorneys General, for Plaintiff and Respondent.

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In September 2007, appellant D.L., a minor, admitted allegations that he committed second degree robbery (Pen. Code, 211, 212.5, subd. (c)) and violated the terms and conditions of probation granted in a previous wardship proceeding. In November 2007, the court declared the instant offense to be a felony, ordered appellant committed to the Department of Corrections and Rehabilitation, Juvenile Justice (DCRJJ), formerly known as the California Youth Authority (CYA), and declared appellants maximum period of physical confinement to be seven years two months, based on the instant offense and offenses adjudicated in previous wardship proceedings.

On appeal, appellant contends the court abused its discretion in ordering appellant committed to the DCRJJ. We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Instant Offense

The report of the probation officer (RPO) filed November 29, 2007, states that according to Kern County Sheriffs Department crime reports, the following occurred on August 30, 2007. A sheriffs deputy, dispatched to investigate a report of a robbery, made contact with an ice cream vendor (the victim) who stated that appellant, age 14, after first approaching and indicating he wished to buy ice cream, produced a handgun and stated, Give me your money. The victim gave appellant $9.00, at which point appellant ran off.

Prior Wardship Proceedings

Appellant was initially adjudged a ward of the juvenile court in September 2004, based on his admission that he committed arson (Pen. Code, 452, subd. (d).) The RPO prepared in connection with that proceeding states that witnesses identified appellant and two other boys as being the individuals responsible for [setting a] fire in a park in which [a] ten foot by one foot area of vegetation was burned. The court placed appellant on probation; ordered him confined in juvenile hall for five days; later stayed that order; and ordered appellant to complete a Youth Fire Awareness Class. Appellant completed the class.

In October 2006, appellant admitted an allegation contained in a second wardship petition that he committed assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)). The RPO prepared in connection with that proceeding states that a police officer responding to a report of an assault on October 22, 2006, made contact with a 60-year-old man who told the officer the following. He had just gotten off the bus when appellant and three other boys surrounded him. One of the boys, not appellant, punched the victim and then picked up a stick and demanded money. The victim refused to hand over his money, and the boy struck the victim with the stick. The victim again said he was not going to turn over his money, at which point the four boys surrounded him and would not allow him to leave . Witnesses driving by honked their horns, and eventually the four boys fled on foot.

In November 2006, the court found the assault to be a felony, continued appellant on probation and ordered him committed to juvenile hall for 30 days.

In appellants third wardship proceeding, in March 2007, appellant admitted allegations that he committed second degree robbery and that in doing so, violated terms and conditions of his probation. The RPO prepared in connection with that proceeding indicates the following. A 12-year-old boy told police detectives that on February 6, 2007, a boy approached him and grabbed him by the neck and began to squeeze as [appellant] punched him in the stomach and removed his MP3 player from his pocket. Appellant told the detectives he was present during the offense, but [his companion] was the suspect who took the victims property.

The court declared the robbery to be a felony, continued appellant on probation and ordered him committed to juvenile hall for 45 days.

2007 RPO

In the RPO prepared in connection with the instant proceeding, the probation officer noted the following. Appellant is an unsuitable candidate for Camp Erwin Owen due to a sustained arson allegation. Appellant is also unsuitable for the Kern Crossroads Facility (Crossroads) because of [appellants] brief but serious criminal history, his degree of criminal sophistication[] in the current and previous offenses, his propensity toward and escalation of violence, the gravity of the current offense and appellant is [in] need of a long term rehabilitation program, which [Crossroads] cannot provide.

The probation officer also stated: Thr[ough] a commitment to [DCRJJ], a specialized program will be developed to address the minors educational, health, and rehabilitative needs. The minor will participate in counseling services to address his delinquent behavior and the impact of his actions on his victims and family.

Psychological Evaluation

The court considered a written psychological evaluation of appellant prepared by clinical and forensic psychologist Sheila D. Carter, PsyD, in which Dr. Carter stated as follows. Appellant has severe emotional dysregulation problems and severe learning deficits, and he suffers with chronic sadness, depression, irritability, low self esteem, poor focus, concentration and attention, low self-assertiveness, and mild anxiety. Appellant can be maintained in a facility such as Camp or Crossroads if the structure, mental health and medical treatment services are present. [] A level 14 placement suitable for Ward minors could help meet the Courts commitment requirements and address [appellants] needs. Such placements offer extensive behavioral modification, mental health treatment including family therapy, specialized academic programming and medical services. Crossroads would certainly fit this requirement.

Juvenile Courts Ruling

In ordering appellant committed to the DCRJJ, the court, after noting that appellant had been involved in three robberies in less than a year, stated: I know Dr. Carters evaluation speaks of a number of needs for this young man and a number of recommendations as to what might be best able to assist him . Dr. Carter in her evaluation really does not speak to the [DCRJJ] and any positives or negatives that it might apply in this situation and [her evaluation] was done certainly to look only at the clinical needs that [D.] might have. And while the Court is certainly concerned with those needs, the Court is also concerned with the safety of the community and what needs to be done in that regard and has to combine those two issues. [] [D.] has had the benefit of two stays in Juvenile Hall prior to the commission of this offense. No other programs were tried at that time because [D.] was believed to be too young for those programs. Camp is only for those of age 14 or older. Crossroads is considered something to be for the more sophisticated youth in our system. Unfortunately, at least at this point, it appears that [D.] has gotten very sophisticated very fast.

The court also stated that an assessment of appellants educational needs should be conducted at the [DCRJJ] and it is their practice to do so upon acceptance and admission.

DISCUSSION

Appellant contends the court abused its discretion in ordering DCRJJ commitment. This contention is without merit.

Commitment to the DCRJJ requires a two-part showing. First, it is required that there be evidence in the record demonstrating probable benefit to the minor .... (In re Teofilio A. (1989) 210 Cal.App.3d 571, 576; accord, In re Pedro M. (2000) 81 Cal.App.4th 550, 556.) Second, there must be evidence supporting a determination that less restrictive alternatives are ineffective or inappropriate. (Ibid.) An appellate court will not lightly substitute its judgment for that of the juvenile court but rather must indulge all reasonable inferences in favor of the decision and affirm the decision if it is supported by substantial evidence. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396; In re Asean D. (1993) 14 Cal.App.4th 467, 473.)

In determining whether there was substantial evidence to support the commitment, we must examine the record presented at the disposition hearing in light of the purposes of the Juvenile Court Law. ([Welf. & Inst. Code,]  200 et seq....) (In re Lorenza M. (1989) 212 Cal.App.3d 49, 53.) In 1984, the Legislature amended the statement of purpose found in section 202 of the Welfare and Institutions Code. It now recognizes punishment as a rehabilitative tool and emphasizes the protection and safety of the public.[^[1]] [Citation.] The significance of this change in emphasis is that when we assess the record in light of the purposes of the Juvenile Court Law [citation], we evaluate the exercise of discretion with punishment and public safety and protection in mind. (Id. at pp. 57-58, fn. omitted; accord, In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684 [[a] fundamental premise of delinquency adjudication is that the court must focus on the dual concerns of the best interests of the minor and public protection]; In re Asean D., supra, 14 Cal.App.4th at p. 473 [the 1984 amendments to the juvenile court law reflected an increased emphasis on punishment as a tool of rehabilitation, and a concern for the safety of the public].) And while the juvenile court law contemplates a progressively restrictive and punitive series of dispositions, there is no absolute rule that the court may not impose a particular commitment until less restrictive placements have actually been attempted. (In re Teofilio A., supra, 210 Cal.App.3d at p. 577.)

At least two factors support the conclusion that a disposition less restrictive than DCRJJ commitment would be ineffective or inappropriate because a placement less secure than DCRJJ would not be adequate to hold appellant accountable for his actions and/or provide for the safety and protection of the public. First, appellant has failed to reform despite multiple juvenile hall commitments and grants of probation. Second, appellant has committed a series of offenses, three of which involved violence and were serious enough to be declared felonies. (In re Samuel B. (1986) 184 Cal.App.3d 1100, 1104, overruled on other grounds in People v. Hernandez (1988) 46 Cal.3d 194, 206, footnote 14 [in determining disposition of juvenile offender, gravity of the offense is always a consideration with other factors].

Substantial evidence also supports the conclusion that commitment to DCRJJ would be of probable benefit to appellant. First, the juvenile court reasonably could credit the probation officers statements that DCRJJ commitment would enable appellant to receive counseling services and participate in a specialized program designed to meet his educational, health, and rehabilitative needs. Second, the court reasonably concluded that appellants educational needs would be assessed upon commitment to the DCRJJ. (Welf. & Inst. Code, 1120, subd. (b) [The [DCRJJ] shall assess the educational needs of each ward upon commitment and at least annually thereafter until released on parole. The initial assessment shall include a projection of the academic, vocational, and psychological needs of the ward and shall be used both in making a determination as to the appropriate educational program for the ward and as a measure of progress in subsequent assessments of the educational development of the ward]; Evid. Code, 664 [It is presumed that official duty has been regularly performed].) Finally, as demonstrated above, the juvenile court law specifically acknowledges that punishment can aid in a minors rehabilitation by holding him or her accountable. The foregoing establishes that the court reasonably could conclude that DCRJJ commitment would benefit appellant.

Appellant attacks the juvenile courts implied finding that DCRJJ commitment would be of probable benefit to appellant on the ground that [t]here is nothing at all to indicate that [DCRJJ] has any programs to address any of the minors issues. As demonstrated above, however, the record belies appellants claim.

Appellant attempts to establish that the DCRJJ offers no programs or services that would meet his needs by requesting that this court take judicial notice that there is serious doubt that [DCRJJ] has any programs to treat[] minors, let alone severely impaired minors such as [D.]. Appellant cites no legal authority for his request, and seems to base it on a newspaper article, which was not before the juvenile court, which purportedly establishes that advocates for youths incarcerated in DCRJJ facilities have made certain contentions regarding the DCRJJs purported failings. We deny appellants request. It will suffice to note appellant has made no showing that the proposition that he asks to be judicially noticed is not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy (Evid. Code, 452, subd. (h)), and appellant did not make such a request below (People v. Preslie (1977) 70 Cal.App.3d 486, 493 [as a general rule the [appellate] court should not take [judicial] notice if, upon examination of the entire record, it appears that the matter has not been presented to and considered by the trial court in the first instance].)

Appellant also challenges the juvenile courts implied finding that a disposition less restrictive than DCRJJ commitment would be inappropriate and/or rehabilitatively ineffective. On this point he argues, in essence, that the juvenile court erred in ordering DCRJJ commitment because (1) in doing so the court ignored appellants rehabilitative needs and based its commitment order solely on a desire to punish appellant, and (2) other less restrictive dispositions, viz. commitment to camp or Crossroads, would adequately meet appellants needs. There is no merit to these claims.

The first of these claims is unsupported by the record. The record reveals that the court considered Dr. Carters opinions and recommendations as to appellants needs from a therapeutic point of view, and balanced those needs against the need to afford society some level of protection from a youthful offender who had committed four offenses, three of them felonies involving violence, in the space of a little over three years.

Appellants second argument is also without merit. In In re Reynaldo R. (1978) 86 Cal.App.3d 250, this court held that the juvenile court did not abuse its discretion in committing the minor to CYA, stating, The minors record, although justifying a less restrictive disposition, was sufficient for a finding of probable benefit to the minor by a Youth Authority commitment. (Id. at p. 256.) In the instant case, even if appellant could have received some benefit from some less restrictive disposition, there was, as demonstrated above, substantial evidence that any less restrictive alternative would be inappropriate and/or ineffective, and that DCRJJ commitment would be of probable benefit to appellant. Therefore, the court did not abuse its discretion in ordering appellant committed to DCRJJ.

DISPOSITION

The judgment is affirmed.

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^*Before Cornell, Acting P.J., Dawson, J., and Kane, J.

[^[1]] Welfare and Institutions Code section 202 provides in relevant part: Minors under the jurisdiction of the juvenile court as a consequence of delinquent conduct shall, in conformity with the interest 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).)