In re Augustine R.

Filed 8/25/08 In re Augustine R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Merced County. Thomas S. Burr, Judge.

Julia L. Bancroft, 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, David A. Rhodes and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

The Merced County Juvenile Court placed Augustine R. at the California Department of Corrections and Rehabilitation, Juvenile Justice (DJJ)^[1]under a 10-year 3-month maximum period of confinement after Augustine admitted 14 counts of violating probation and a misdemeanor count of unlawfully resisting or obstructing a police officer. (Pen. Code  148, subd. (a)(1).)^[2] On appeal, Augustine contends the juvenile court abused its discretion by not imposing a less-restrictive commitment. We will affirm the juvenile courts disposition.

BACKGROUND

Augustines history of delinquency began at the age of 10, in September 2002, when local police referred him to the Merced County Probation Department (Probation) for habitual truancy. In March 2004, police referred Augustine to Probation for fighting with another juvenile while waiting for a school bus, and in April 2005, he was again referred to Probation for conducting gang-related vandalism throughout Los Banos.

In June 2005, police discovered Augustine was one of approximately eight youths who physically attacked a victim in a public park while yelling gang slurs and threats. When confronted by police, Augustine was so confrontational he had to be restrained with handcuffs and placed in a patrol car. Augustine subsequently pled no contest to felony assault likely to produce great bodily injury ( 245, subd. (a)(1)) and admitted he was acting for the benefit of a criminal street gang ( 186.22, subd. (b)(1)(A)). The juvenile court adjudged Augustine a ward of the court and committed him to juvenile hall for 37 days, with credit for 37 days served, and ordered him to complete 80 hours of community service.

In November 2005, Augustine was arrested for throwing rocks at other individuals. Augustine pled no contest to misdemeanor fighting in public ( 415, subd. (1)) and admitted he was acting for the benefit of a criminal street gang ( 186.22, subd. (d)). He also admitted violating probation by failing to obey all laws, failing to obey directions of his probation officer, and associating with known wards and gang members. The juvenile court continued Augustines wardship, committed him to juvenile hall for 45 days with credit for 37 days served, and ordered him to complete the 80 hours of community service previously ordered.

In January 2006, Augustine engaged in a gang-related fight on a school campus where he was not enrolled. In addition to admitting he violated probation, Augustine pled no contest to two misdemeanor counts of battery on school property ( 243.2, subd. (a)) and a felony count of acting for the benefit of a criminal street gang ( 186.22, subd. (d)). The juvenile court committed Augustine to the Merced County Bear Creek Academy, Long Term Program (Bear Creek Academy) and to the DJJ, suspending the DJJ commitment to be lifted upon successful completion of the Bear Creek Academy.

In June 2006, Augustine engaged in another physical assault while exchanging gang slurs. Augustine admitted battery and violating probation. ( 242.) The juvenile court returned Augustine to the Bear Creek Academy.

The Bear Creek Academy terminated Augustine in September 2006 for failing to comply with the programs rules and regulations by repeatedly leaving his home while under electronic monitoring and for possessing gang related items in his room. The juvenile court found Augustine violated probation and re-committed him to the Bear Creek Academy.

In February 2007, while still on electronic monitoring through Bear Creek Academy, police arrested Augustine for associating with a known ward of the juvenile court. The juvenile court dismissed without prejudice a violation of probation charge and again ordered Augustine to complete the Bear Creek Academy. However, Bear Creek Academy terminated Augustine from the program for a second time in July 2007. Although Augustine had been performing satisfactorily while participating in the custodial portion of the program, he began violating the rules when he became eligible for weekend home furloughs. In February 2007, Augustine admitted ingesting methamphetamine while on a weekend home pass. In March 2007, Augustine admitted consuming alcohol while away from custody. He also engaged in repeated electronic monitoring violations and returned one weekend with a new gang-related tattoo. In May 2007, after having received permission to attend a fair with his mother, Augustine evaded a police officer who observed him at the fair with a validated street gang member. Notwithstanding warnings and sanctions from Probation and the Bear Creek Academy, Augustine repeatedly found himself associated with known gang members on numerous occasions.

On July 19, 2007, Probation filed a supplemental petition alleging Augustine failed to comply with and complete the Bear Creek Academy (count 1), associated with a known ward of the court (count 2), associated with known gang members on multiple dates (counts 3-10), and failed to make restitution payments on three accounts (counts 11-13). Also on July 19, 2007, the district attorneys office filed a petition alleging Augustine willfully obstructed a police officer, a misdemeanor ( 148, subd. (a)(1)), and that he violated probation by not obeying the law. Augustine admitted the allegations of both petitions, and after continuing the dispositional hearing to allow probation to investigate less-restrictive commitment options, the juvenile court ordered Augustine to the DJJ under a 10-year 3-month maximum period of physical confinement.

DISCUSSION

Augustine contends the juvenile court abused its discretion in committing him to the DJJ because the record lacks substantial evidence of probable benefit from the placement or that less restrictive alternatives would be ineffective or inappropriate. As an appellate court, we review a commitment decision for abuse of discretion, indulging all reasonable inferences to support the juvenile courts decision. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) A juvenile court abuses its discretion when the commitment does not conform to the general purpose of the juvenile court law. (In re Todd W. (1979) 96 Cal.App.3d 408, 417.) That purpose is to protect the safety of the public and minor, preserve and strengthen family ties when possible, and remove a minor from parental custody only when necessary. (Welf. & Inst. Code, 202, subd. (a).)

In selecting an appropriate disposition, the juvenile court must consider the age of the minor, the circumstances and gravity of the offense, the previous delinquent history, and other relevant and material evidence. (Welf. & Inst. Code, 725.5.) While the DJJ is considered a final treatment resource, there is no absolute rule that a DJJ commitment may only be ordered if less restrictive placements have been attempted. (In re Asean D. (1993) 14 Cal.App.4th 467, 473; In re Teofilio A. (1989) 210 Cal.App.3d 571, 576; In re Ricky H. (1981) 30 Cal.3d 176, 183.) The juvenile court is not required to discuss specifically each of these factors in making its decision, and it is sufficient if the record reflects that they were, in fact, considered. (In re John F. (1983) 150 Cal.App.3d 182, 185.) A DJJ commitment, even if imposed as an initial disposition, is not an abuse of discretion where the record demonstrates both a probable benefit to the minor and the inappropriateness or ineffectiveness of less restrictive alternatives. (In re Angela M., supra, 111 Cal.App.4th at p. 1396; In re Pedro M. (2000) 81 Cal.App.4th 550, 555-556.)

Here, the juvenile court did not abuse its discretion when it committed Augustine to the DJJ. Overwhelming evidence supports the courts decision Augustine would likely benefit from a DJJ commitment, less restrictive alternatives would be inappropriate and ineffective, and the placement was in the best interests of both Augustine and public safety.

At an August 15, 2007, dispositional hearing, the juvenile court acknowledged it had read and considered Augustines probation report and recommendations. In recommending the juvenile court place Augustine at the DJJ, the evaluating probation officer noted Augustine was making his fifth appearance before the court in the previous 24 months. The report explained that all local rehabilitation measures had been exhausted and that Augustine possessed a violent nature with a pattern of manipulation, non-compliance, and an unwavering allegiance to his criminal street gang. The report also emphasized that Augustine had been given the benefit of two referrals to the Bear Creek Academy and failed to even remotely utilize the tools offered to him in either of his long term commitments. After extensive counseling and sanctions, the Bear Creek Academy repeatedly returned Augustine to the custodial portion of the program for failing to comply with the electronic monitoring rules and continuing to associate with gang members, as well as for consuming methamphetamine and alcohol while on leave from the program. Given Augustines failure to reform, the probation officer concluded it was imperative the minor receive the message his behavior is unacceptable, he be held accountable, and the innocent members of our community should be able to rest knowing they are out of the minors path of victimization.

Describing Augustine as a family member because he was in court so often, the juvenile court observed that he performed well when in custody but repeated his pattern of delinquency when released into the community. The court explained it did not want to send him to the DJJ, especially for having recently only committed a misdemeanor, but was unsure other options would be appropriate given his repeated failure to rehabilitate when released from custody. Accordingly, the court asked the probation officer to again screen Augustine for a camp facility that would accept him. The juvenile court warned, however, that if hes not acceptable then I would commit him to the Department of Juvenile Justice.

In a Probation memorandum prepared for the subsequent dispositional hearing on August 24, 2007, Augustines probation officer reported that he completed another referral to the Bear Creek Academy and was advised by its director that Augustine was not a suitable candidate due to his prior failures with the program. The probation officer explained the Bear Creek Academy was the functional equivalent of a more traditional boot camp facility that the county previously contracted with by meeting the same programming and funding requirements. After hearing arguments from the prosecution, defense counsel, and the probation officer, the juvenile court reasoned:

Augustine, I think you probably have a lot of good things going for you. I believe you previously had a suspended [DJJ] commitment. You have a 245(a)(1), 707(b) offense. You also have a gang enhancement on that. And you have a whole bunch of other little type things including a lot of VOPs, violations of your wardship. Your rap sheet here is several pages. The substantive offenses are not all that many but I think that rap sheet, the length of it ought to just demonstrate the fact that we have tried everything that we have. I grant you that Merced County does not have all of the services that larger counties have.

We tried you twice, we put you twice at the Bear Creek Academy long-term program and that is our camp. Its funded as a camp. The services there are the equivalent to or more than what a camp has. The only thing is it is here locally and its not out in the farmland or in the forest.

So we have tried local, all local services and I firmly believe that you are not appropriate for a group home because of the 707(b), the 245(a)(1) offense.

I am sympathetic to the comments that [defense counsel] makes, Augustine, and I was sympathetic I guess a long time on those because I thought that you probably were not someone that we couldnt rehabilitate locally. I was proven wrong because every time you got out you found your way back in because you violated things. And, Augustine, you knew what you had to do, what you could do and what you couldnt do and evidently you did well while you were in the program, while you were in custody, and then as soon as you got out you started violating and that is why youre back here.

Augustine, I believe that Court has done everything it can to find that appropriate option that is less than the Division of Juvenile Justice and I feel very badly when I am backed into some option that I really dont want to do.

I think its necessary for the protection of the public for you to get services, Augustine. We have tried you in the two long-term programs. I dont think putting you in a short-term program would help you a bit. I think there is some other services you need and I dont know what they are, Augustine. [] []

I really dislike sending you [to the DJJ] but I just dont see any other option at this point. I have to look at your rehabilitation and I have to look at the protection of the public and I dont have any history, any track record where once you are released that you are going to stay out of trouble. You seem to be right back with the gang people.

In contrast to In re Teofilio A., supra, 210 Cal.App.3d at p. 577, where neither the juvenile court nor the probation officer considered alternatives to placing the minor with the DJJ, here both the court and Probation expressly considered less restrictive alternatives on several occasions. Although Augustine argues the juvenile courts reluctance to impose a DJJ commitment demonstrates it was not fully satisfied he would likely benefit from the placement, as required under Welfare and Institutions Code section 734, we view the juvenile courts concern as a careful analysis of Augustines history and the relevant facts rather than adopting a robotic conclusion to place Augustine at the DJJ. Given Augustines lengthy history of delinquency and violence, his failure to reform under less restrictive dispositions, and his refusal to abandon his criminal street gang allegiance, substantial evidence supports the juvenile courts thoughtful and reasoned decision to place him at the DJJ.

DISPOSITION

The judgment is affirmed.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

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

^[1] The DJJ was formerly known as the California Youth Authority (CYA). (Gov. Code, 12838, 12838.5.)

^[2] All further statutory references are to the Penal Code, unless otherwise indicated.