In re Joey V.

 

 

 

 

Filed 1/22/14  In re Joey V. CA5

 

 

 

                                                                                                                                                                 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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

 

 
>

In re JOEY V., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,   Plaintiff and Respondent,                         v. JOEY V.,   Defendant and Appellant.	F066481   (Super. Ct. No. 09CEJ601172-3)   >OPINION

THE COURThref="#_ftn1" name="_ftnref1" title="">^*

            APPEAL
from a judgment of the Superior Court of Fresno
County.  James A. Kelley, Jr., Judge.

            Arthur
L. Bowie, under appointment by the Court
of Appeal, for Defendant and Appellant.

            Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, Carlos A. Martinez and Jeffrey D. Firestone, Deputy Attorneys
General, for Plaintiff and Respondent.

 

>-ooOoo-

            At
a contested jurisdiction hearing, the juvenile
court found true an allegation that appellant, Joey V., a minor, committed
an assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1))href="#_ftn2" name="_ftnref2" title="">^[1] and declared the offense a
felony.  At the subsequent disposition
hearing, the court adjudged appellant a ward of the court, placed him under the
supervision of the probation officer until May 3, 2014, and ordered him
committed to the New Horizons program (New Horizons) for a period not to exceed
365 days.  

            On
appeal, appellant contends (1) the evidence was insufficient to support the
instant adjudication, and (2) the court abused its discretion in ordering
appellant committed to New Horizons.  We affirm.

FACTS

Petitioner’s Case

            Kimberly
Armstrong testified that on October 22, 2012 (October 22), she and appellant,
her son, got into an argument regarding appellant’s refusal to wash some dishes,
and Armstrong told appellant that she would not allow his girlfriend to visit
if he “continue[d] to act this way.”href="#_ftn3" name="_ftnref3" title="">^[2]  At that point, the argument “stopped,”
Armstrong went into the living room, and appellant went into another room “to
calm down.”  

            While
Armstrong was in the living room, appellant “came out,” holding a “little knife.”
 Appellant then went into the kitchen,
and said “I’m done” and “I’m tired of this.”  He “brought up other situations … about his
brother and his cousin” who had died two weeks previously in a car crash.  Appellant “took [these deaths] really hard.”  He pointed the knife at his throat, and both
he and Armstrong began crying and talking about things appellant “was href="http://www.sandiegohealthdirectory.com/">depressed about.”  Armstrong was standing in the living room,
approximately eight to ten feet away from appellant.  At this point, Armstrong’s husband, Joey
Sarabia called, and Armstrong answered the phone and “pushed talk.”  

            While
appellant was holding the knife, standing in the kitchen, he grabbed the
neckline of his shirt and ripped the shirt.  Thereafter, appellant “came to the living
room, and then he handed [Armstrong] the knife because [she] asked for it.”  Appellant “was giving [the knife] to
[Armstrong], but [it] was closed and everything,” and it “fell in the
couch.” 

            At
some point after appellant gave Armstrong the knife, Officer Mark Clifton and
Armstrong’s husband, who, Armstrong assumed had called the police, arrived,
followed “a minute or two” later by two other police officers, including
Officer Pearce.  

According to
Armstrong, appellant did not point the knife at her, “didn’t have it close to …
or near [her],” did not “come towards [her] with the knife,” and did not “swing
the knife at [her].”  Armstrong was not
in fear for her safety.  Appellant “would
never hurt [her].”  

            After
Armstrong testified, Selma Police Officer Lance Pearce testified to the
following:  On October 22, in responding
to a 911 call “involving [appellant] and … a knife,” he went to a residence and
made contact with Armstrong, who was standing on the porch.  Pearce asked where appellant was, at which
point appellant walked out the front door.  After determining appellant did not have a
knife, Pearce “secured him for officer safety,” and then spoke with Armstrong.  She was “[v]ery upset” and “[v]ery shaken
up.”  She told Pearce the following:  She and appellant “got into an argument”
about appellant not wanting to clean dishes and appellant’s girlfriend not
being allowed to come to the residence, at which time appellant “went into his
room” and said to Armstrong, while he was in his room, “Fuck you, dog.”  Then, as Armstrong was walking toward
appellant’s room “to confront him,” appellant “came out of the room … with the
knife.”  He was “swinging the knife back
and forth” and “yell[ing] at [Armstrong], … at which time she … got
scared.”  At that point, Armstrong
“retreated … to the kitchen where she then called the police department.”  While she was calling the police, appellant
“got upset” and “continued yelling that he wanted to die, at which time he was
upset and … swinging the knife around.”  While
he was yelling, “he cut off his shirt and his necklace that was around his
neck.”  He “threw [the knife] down … when
he heard the sirens.”  

            Armstrong
testified to the following:  She did not
tell Pearce appellant swung a knife at her and she did not call the
police.  Appellant did not say, “Fuck
you, dog.”  Pearce did not ask Armstrong
“what happened.”  He only asked her for
her name, telephone number and address, which href="http://www.sandiegohealthdirectory.com/">information Armstrong gave
him.  

Defense Case

            Joey
Sarabia testified to the following:  On
October 22, he telephoned Armstrong.  She
“put the phone down” and he heard her say, “Give me the knife.”  Appellant had had “suicidal issues at times”
and Sarabia, believing that appellant was “threatening himself with the knife”
and afraid appellant “was going to hurt himself,” called 911.  Appellant had never threatened Sarabia and he
had never seen appellant threaten Armstrong.  

Additional Factual Backgroundhref="#_ftn4" name="_ftnref4" title="">^[3]> 

            Appellant
was initially adjudged a ward of the juvenile court and placed on probation in
January 2010, following an adjudication of battery (§ 242.)  Appellant’s mother told a police officer that
appellant pushed her when she would not allow him to attend a high school
football game.  

            Appellant
was readjudged a ward under Welfare and Institutions Code section 777 and
continued on probation in June 2010, after he “left his residence despite being
directed to remain home by his parent”; in August 2010, after Armstrong
reported to a police officer that appellant threatened to kill her; in October
2010, after officers, responding to a report of a “disturbance between
[appellant] and a parent,” learned that appellant “became aggressive towards
[Armstrong] when she attempted to wake him up for school”; in January 2011,
after appellant “failed to keep an appointment with Families First and ACT”;
and in May 2011, after appellant “cut off his electronic monitor and left his
residence without permission.”  

            In
August 2011, appellant was adjudicated of a misdemeanor violation of section
308, subdivision (b) (possession of smoking paraphernalia by a minor), for
possessing a “smoking pipe device,” and in August 2011, he was adjudicated of
misdemeanor battery (§ 242), after he “pushed his mother in the chest after she
tried turning off the music [appellant] was listening to.”  Following each of these adjudications, appellant
was readjudged a ward and continued on probation.  Appellant’s probation was terminated in a
Welfare and Institutions Code section 777 proceeding in September 2012, after
appellant “failed to obey lawful directive of DPO due to not completing his community
service and failed to attend school as required by law.”  

            Appellant
“failed to complete … Behavioral Health Court, Electronic Monitoring, and
Community Service.” 

            Appellant’s
mother reported the following:  Appellant
has been diagnosed as suffering from “ADD/ADHD, Bi-polar, Schizophrenia, and
Depression”; he currently takes several psychotropic medications; he “has
attempted suicide or expressed suicidal ideation in the past”; and he “has been
hospitalized in regards to mental health issues on 4 previous occasions.”  

            Appellant
is a “special education student.”  He was
diagnosed with a learning disability when he was in the third grade.  Sarabia reported appellant “has a history of
poor attendance[] [and] refusing to attend school.”  School records indicate appellant has been
suspended in the past for, inter alia, “inappropriate sexual behavior,”
fighting and bullying another student.  

            At
the disposition hearing, the probation officer told the court she believed
appellant is “going to receive individual and mental health counseling during
the duration of this New Horizons program.” 
The court asked the officer, “is [it] your position” that “family counseling
and mental health counseling” is “included in New Horizons?”  The officer answered, “That’s right.”  

Procedural Background

            The
probation officer recommended in the RPO that appellant be committed to New
Horizons for a period not to exceed 365 days.

            At
the disposition hearing, appellant’s counsel “request[ed] that [appellant]
serve less time for this offense,” and argued that a commitment period of “six
or maybe even eight months” would be appropriate. 

DISCUSSION

Sufficiency of the Evidence  

            Appellant
contends the evidence was insufficient to support his adjudication of assault
with a deadly weapon, viz., a knife, on Armstrong.  We disagree.

In determining
whether the evidence is sufficient to support a finding in a juvenile court
proceeding, the reviewing court is bound by the same principles as to the
sufficiency and substantiality of the evidence which govern the review of
criminal convictions generally.  (>In re Roderick P. (1972) 7 Cal.3d 801,
809.)  Those principles include the
following:  â€œIn addressing a challenge to
the sufficiency of the evidence supporting a conviction, the reviewing court
must examine the whole record in the light most favorable to the judgment to
determine whether it discloses substantial evidence—evidence that is reasonable,
credible and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.  [Citation.]  The appellate court presumes in support of the
judgment the existence of every fact the trier could reasonably deduce from the
evidence….  ‘“If the circumstances reasonably
justify the trier of fact’s findings, the opinion of the reviewing court that
the circumstances might also reasonably be reconciled with a contrary finding
does not warrant a reversal of the judgment.”’”  (People
v. Kraft (2000) 23 Cal.4th 978, 1053.) 


“[A] reviewing
court resolves neither credibility issues nor evidentiary conflicts.  [Citation.] 
Resolution of conflicts and inconsistencies in the testimony is the
exclusive province of the trier of fact.” 
(People v. Young (2005) 34
Cal.4th 1149, 1181.)  “Conflicts
and even testimony which is subject to justifiable suspicion do not justify the
reversal of a judgment.”  (>People v. Cantrell (1992) 7 Cal.App.4th 523, 524.)

A conviction for
assault with a deadly weapon (§ 245, subd. (a)(1)) requires proof of the crime
of assault, plus proof that it was accomplished by the use of a deadly weapon.  An assault is “an unlawful attempt, coupled
with a present ability, to commit a violent injury on the person of another.”  (§ 240.) 
“The mens rea [for assault] is established upon proof the defendant
willfully committed an act that by its nature will probably and directly result
in injury to another, i.e., a battery.”  (People
v. Colantuono (1994) 7 Cal.4th 206, 214 (Colantuono).)  In addition,
“a defendant must ‘actually know[] those facts sufficient to establish that his
act by its nature will probably and directly result in physical force being
applied to another.’”  (>People v. Chance (2008) 44 Cal.4th 1164,
1169 (Chance).)

As appellant impliedly
concedes, under the principles of appellate review summarized above, we are not
compelled to accept as true Armstrong’s testimony and, indeed, we must presume
that events unfolded as, according to Pearce’s testimony, Armstrong said they
did when the officer spoke with her on October 22.  Appellant argues that even under that version
of events, the evidence was insufficient to establish he committed an assault.  Specifically, he first argues that there was
no evidence of the distance between Armstrong and appellant when appellant was
swinging the knife back and forth, and thus there was no evidence Armstrong was
ever “within the range of harm.” 
Therefore, he contends, the evidence was insufficient to establish (1)
that he committed an act that by its nature would directly and probably result
in the application of force to Armstrong, (2) that he had actual knowledge of
facts sufficient to establish that his actions would directly and probably
result in physical force being applied to Armstrong, and (3) that the knife, as
appellant used it, constituted a deadly weapon. 
The major legal premise of all these claims is that the act of “[s]winging
a knife around” can only constitute an assault if the purported victim was, at
the time of the act, “within a zone of harm.” 
As we explain below, this premise is false, and therefore these arguments
fail.  

As the
California Supreme Court has explained, “‘Holding up a fist in a menacing
manner, drawing a sword, or bayonet, presenting a gun at a person who is within
its range, have been held to constitute an assault.  So, any
other similar act, accompanied by such circumstances as denote an intention
existing at the time, coupled with a
present ability of using actual violence against the person of another,
will be considered an assault.’  [Citations.]” 
(Colantuono, >supra, 7 Cal.4th at p. 219, second italics
added.)

Here,
appellant’s act of swinging a knife through the air was similar to, and indeed,
even more threatening than, holding up a fist in a threatening manner or any of
the other acts cited by our Supreme Court in the passage quoted above.  Therefore, as indicated above, the remaining question
before us is whether the evidence was insufficient to establish the “present ability”
element of assault.  On this point, we
find instructive Chance, >supra, 44 Cal.4th 1164.

In that case,
the California Supreme Court, in discussing the “present ability” requirement
of section 240, stated:  “[I]t is a
defendant’s action enabling him to inflict a present injury that constitutes
the actus reus of assault.  There is no
requirement that the injury would necessarily occur as the very next step in
the sequence of events, or without any delay…. 
[A]ssault does not require a direct attempt at violence.  [Citation.] 
‘There need not be even a direct attempt at violence; but any indirect
preparation towards it, under the circumstances mentioned, such as drawing a
sword or bayonet, or even laying one’s hand upon his sword, would be
sufficient.’  [Citations.]  [¶]  â€¦ 
[W]hen a defendant equips and positions himself to carry out a battery,
he has the ‘present ability’ required by section 240 if he is capable of
inflicting injury on the given occasion, even if some steps remain to be taken,
and even if the victim or the surrounding circumstances thwart the infliction
of injury.”  (Chance, supra, 44 Cal.4th
at p. 1172.)  “‘The fact an intended
victim takes effective steps to avoid injury has never been held to negate this
“present ability.”’”  (>Id. at p. 1174.) 

In a similar
vein and much earlier, in People v. Yslas
(1865) 27 Cal. 630, our Supreme Court stated: 
“[W]here there is a clear intent to commit violence accompanied by acts
which if not interrupted will be followed by personal injury, the violence is
commenced and the assault is complete.” 
(Id. at p. 633.)  And, in the portion of the opinion fatal to
appellant’s “zone of harm” argument, the court further stated:  “It is not indispensable to the commission of
an assault that the assailant should be at any time within striking distance.  If he is advancing with intent to strike his
adversary and come sufficiently near to induce a man of ordinary firmness to
believe, in view of all the circumstances, that he will instantly receive a
blow unless he strike in self-defense or retreat, the assault is complete.  In such a case the attempt has been made
coupled with a present ability to commit a violent injury within the meaning of
the statute.”  (Id. at p. 634.)  Our Supreme
Court in Chance, supra, 44 Cal.4th at page 1174, summarized Yslas as follows:  “In >Yslas, the defendant approached within
seven or eight feet of the victim with a raised hatchet, but the victim escaped
injury by running to the next room and locking the door.  Yslas committed assault, even though he never
closed the distance between himself and the victim, or swung the hatchet.  (Yslas,
supra, 27 Cal. at pp. 631, 633–634.)”   

Appellant seeks
to distinguish Yslas on the ground
that, here, by Armstrong’s account as related by Officer Pearce, appellant was
swinging the knife and yelling as
Armstrong approached him; he did not advance on her with the knife in
hand.  This is a distinction without a
difference.  There is no suggestion in
the record that appellant acted in self-defense.  The juvenile court reasonably could conclude
(1) that appellant swung the knife as Armstrong approached, intending to strike
her, and Armstrong, in fear of being stabbed or slashed, retreated to the
kitchen, and (2) that appellant was aware of these facts.  Under the authorities cited above, regardless
of whether Armstrong was ever within what appellant calls the “zone of harm,” the
evidence supported the conclusion that appellant had the present ability to
commit, and did commit, an assault with a deadly weapon.

Appellant also
challenges the sufficiency of the evidence supporting his adjudication on the
grounds that, he asserts, there was no evidence of what Armstrong was afraid of
when she retreated to the kitchen, and no evidence appellant threw the knife,
yelled while swinging the blade, or “tried to stab or cut” Armstrong.  These points are without merit.

First, in fact
there was evidence appellant was yelling as he swung the knife.  Officer Pearce testified Armstrong told him appellant
“came out of the room … with the knife, at which time she was walking towards
the room to confront him and he was
swinging the knife back and forth and … yelled [sic] at her, … at which
time she then got scared.”  (Italics
added.)  Second, it is reasonably
inferable from this evidence that Armstrong was afraid of being cut by the
knife.  Finally, as demonstrated above,
under the circumstances of this case, it is of no moment that appellant did not
get close enough to “stab or cut” Armstrong. 
On this record, there was sufficient evidence presented to establish
appellant committed an assault with a deadly weapon.

Commitment to New Horizons

Appellant
contends the juvenile court abused its discretion in ordering him committed to
New Horizons. 

“A juvenile
court’s commitment order may be reversed on appeal only upon a showing the
court abused its discretion.”  (>In re Robert H. (2002) 96 Cal.App.4th
1317, 1329-1330; accord, In re Todd W.
(1979) 96 Cal.App.3d 408, 416.) 
Appellant contends the juvenile court abused its discretion in ordering a
commitment to New Horizons for up to one year. 
We disagree.

A commitment
to New Horizons requires
a two-part showing.  There must be
evidence demonstrating (1) such a commitment will be of benefit to the minor,
and (2) less restrictive alternatives are ineffective or inappropriate.  (Cf. In
re Teofilio A. (1989) 210 Cal.App.3d 571, 576 (Teofilio A.).href="#_ftn5"
name="_ftnref5" title="">^[4] 
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 (Asean D.).)

“‘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.^[href="#_ftn6" name="_ftnref6" title="">^[5]] 
[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, italics added; accord, 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”].) 

“‘[T]his interpretation by no means
loses sight of the “rehabilitative objectives” of the Juvenile Court Law.  [Citation.]  Because commitment to CYA cannot be based
solely on retribution grounds [citation], there must continue to be evidence
demonstrating (1) probable benefit to the minor and (2) that less restrictive
alternatives are ineffective or inappropriate.  However, these must be taken together with the
Legislature’s purposes in amending the Juvenile Court Law.’  [Citation.]” 
(In re Carl N. (2008) 160 Cal.App.4th 423, 433.)

Appellant
argues as follows:  The court “should
have” ordered “outpatient treatment or some less restrictive placement”; “there
was not substantial evidence that the goals of the juvenile delinquency system
were going to be met by removing [appellant] from the care and custody of his
parents and placing him in a locked facility”; and appellant had “successfully
completed his prior grant of probation on September 22, 2012,” and therefore
“the evidence demonstrated that lesser restrictive alternatives had been making
progress in rehabilitating [him].”  

As best we can determine,
appellant contends these factors establish that the evidence was insufficient to
prove that alternatives less restrictive than commitment to New Horizons would
be ineffective or inappropriate.  We
disagree.  At least two factors support the conclusion
that a disposition less restrictive than commitment to New Horizons for up to
one year would be both inappropriate—because any such disposition would not be
adequate to hold appellant accountable for his actions and/or provide for the
safety and protection of the public—and ineffective.  First, appellant stands adjudicated of a serious
offense.  (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, fn. 14 [in determining disposition of juvenile offender,
“gravity of the offense is always a consideration with other factors”]; Welf.
& Inst. Code, § 725.5 [factors to consider in determining appropriate
disposition include “the circumstances and gravity of
the offense committed by the minor”].) 
In addition, appellant has failed to reform despite numerous grants of
probation, which included attempts to rehabilitate appellant through means less
restrictive than confinement in New Horizons, including the electronic
monitoring program and community service, both of which appellant failed to
complete. 

As appellant indicates, after he
violated his probation in April 2012 by failing to complete his community
service and attend school, he apparently refrained from further violations for
several months and his probation was terminated in September 2012.  However, he committed the instant felony the
following month.  This record hardly
supports, much less compels, the conclusion that, as appellant claims, he was
“on the road to rehabilitative success,” and that therefore the court abused
its discretion in failing to order a disposition less restrictive than commitment
to New Horizons.  

Appellant also
contends the evidence was insufficient to establish that commitment to New
Horizons would be of probable benefit. 
Specifically, he argues, “there is no evidence in the record that [he]
would receive adequate services at the New Horizon[s] program to address his
educational, psychological or emotional needs.” 
This argument presents a much closer question. 

No doubt, as
appellant asserts, he is in serious need of mental health and educational
services.  And, as appellant points out,
the RPO is silent as to what services are provided at New Horizons that could
meet these needs, and provides no analysis as to how, or even if, appellant
might benefit from commitment to New Horizons.  However, notwithstanding the lack of
information in the RPO, the probation officer represented to the court at the
disposition hearing that “family counseling” and “mental health counseling”
were “included in New Horizons.”  This
evidence, coupled with the evidence of appellant’s mental health and
educational needs, provides support for the conclusion that a commitment to New
Horizons would be of probable benefit to appellant.

Moreover, appellant
stands adjudicated of a felony offense that involved violence, and that offense
was preceded by his commission of two misdemeanors, one of which also involved
violence, and multiple violations of probation. 
As indicated above, the Juvenile Court Law recognizes punishment as a
“rehabilitative tool.”  (>In re Lorenza M., supra, 212 Cal.App.3d at p. 53.) 
On this record, the juvenile court reasonably could have concluded
appellant was in need of the kind of “guidance” that comes with “punishment
that is consistent with the rehabilitative objectives of [the Juvenile Court
Law]” (Welf. & Inst. Code, § 202, subd. (b)) and that removing him
from the custody of his parents and confining him in New Horizons could provide
that guidance.  Thus, although the
question is a close one due to the paucity of information about New Horizons, we
conclude the evidence was sufficient to establish that the disposition in the
instant case would benefit appellant.

Appellant also
argues that the court improperly ordered appellant committed to New Horizons
“solely for the purpose of punishment and retribution.”  As best we can determine, appellant bases this
argument, in turn, on the claim that the following statement made by the court
at the disposition hearing constitutes inappropriate “classic criminal court sentencing
language”:  “I read and considered this >sentencing recommendation or this
disposition, I guess we call it, and I think it’s appropriate.”  (Italics added.)  There is no merit to this contention.

We recognize
that proceedings in juvenile court are not deemed criminal proceedings (Welf.
& Inst. Code, § 203).  The
terminology often used reflects this fact. 
Thus, for example, minors are “committed” to placements such as New
Horizons, not sentenced, as are adults, and juvenile courts make such
commitments at disposition, rather than sentencing, hearings.  However, here the court immediately corrected
itself and referred to its “disposition.” 
A single usage of the word “sentencing” does not compel the conclusion
that the juvenile court had lost sight of the rehabilitative objectives of the Juvenile
Court Law or the fundamental principle that a commitment cannot be based on
retribution grounds.

Finally,
appellant argues that the court abused its discretion in ordering commitment to
New Horizons because, he asserts, the court “failed to adequately consider” appellant’s
“psychological, emotional, and educational treatment needs.”  As best we can determine, appellant bases
this claim on the court’s failure to explicitly mention these needs, or
dispositional alternatives that might address these needs, in announcing its
disposition order.  This contention too
is without merit. 

In >In re Ricky H. (1981) 30 Cal.3d 176 (>Ricky H.), the minor, challenging his
commitment to CYA, argued “that the superior court did not give adequate
consideration to less restrictive placement alternatives.  Specifically, the social study lacked data
regarding specific alternative placements. 
The court failed to respond to counsel’s argument that the local youth
center would be a more appropriate placement. 
[The minor] assert[ed] that the court had a duty to actively inquire as
to the suitability of less restrictive placements â€¦.”  (Id.
at p. 182.)  Our Supreme Court rejected
this argument; the court stated, “It is true that the lack of such a statement
[of reasons for CYA commitment] makes appellate review of the superior court’s
exercise of discretion more difficult and uncertain [citation], but >the absence of inquiry does not establish
that the superior court failed to consider other placements.”  (Id.
at p. 184, italics added.)  Thus, as this
court stated in Teofilio A., >supra, 210 Cal.App.3d at page 577, the
court in Ricky H. noted that “if
there is evidence in the record to show a consideration of less restrictive
placements was before the court, the
fact the judge does not state on the record his consideration of those
alternatives and reasons for rejecting them will not result in a reversal.”  (Italics added.)

Here, at the
disposition hearing, appellant’s counsel argued for a commitment of less than
the one-year maximum recommended by the probation officer.  In addition, the RPO covers appellant’s
educational and mental health problems, and lists the various means used in the
attempt to rehabilitate appellant during his multiple grants of probation:  electronic monitoring, community service, and
Behavioral Health Court.  Thus, the
record shows that the juvenile court had before it information regarding less
restrictive dispositions and appellant’s various needs.  No more is required to establish the court
considered such matters.  (>Ricky H., supra, 30 Cal.3d at p. 184.) 


DISPOSITION

            The
judgment is affirmed.