In re A.H.

Filed 8/29/07 In re A.H. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

A.H. appeals an order of the juvenile court committing him to the California Youth Authority (CYA)^[1]for a maximum term of six years six months based on offenses found true in multiple sustained juvenile wardship petitions. (Welf. & Inst. Code, 602, 777.) His most recent offenses include assault by means of force likely to produce great bodily injury (Pen. Code^[2],  245, subd. (a)(1)), battery on school, park or hospital property ( 243.2, subd. (a)), and escape from a juvenile facility (Welf. & Inst. Code,  871, subd. (a)). His past offenses include battery and grand theft of person. ( 487, subd. (c).) He contends the court abused its discretion in committing him to CYA, and that the commitment violates his federal due process rights. We affirm.

FACTS AND PROCEDURAL HISTORY

Appellant was born in September 1988. On March 30, 2002, the police caught him "tagging" in Guadalupe. On May 3, 2002, a wardship petition was filed pursuant to Welfare and Institutions Code section 602 alleging that appellant had committed trespass on railroad property ( 369i), vandalism ( 594, subd. (b)(2)(A)), and unlawful possession of vandalism tools ( 594.2, subd. (a)). On June 5, 2002, he admitted the trespass, was declared a ward of the court, and was placed on probation in his parents' custody with specified terms, including that he abide by a curfew of 10:00 p.m. and not associate with gang members. The remaining allegations were dismissed. On November 12, 2002, appellant's wardship was terminated because his family had moved to Arizona.

On November 29, 2003, appellant struck a man in the face with his fist, brandished a screwdriver, and attempted to remove his necklace and bracelet. On December 2, 2003, a subsequent petition was filed alleging that appellant had committed two counts of second degree robbery and that both were serious felonies ( 211, 1192.7, subd. (c)(19)). On December 16, 2003, it was further alleged that appellant had committed misdemeanor grand theft of person ( 487, subd. (c)). Appellant subsequently admitted the grand theft allegation, and the remaining allegations were dismissed. He was placed on probation and sent to Tri-Counties Boot Camp for a maximum of one year.

On February 1, 2004, appellant repeatedly struck fellow ward Rudolpho G. in the face and spit on him after he accidentally stepped on the heel of appellant's shoe. Appellant also struck a staff member who tried to restrain him. In a subsequent petition filed on February 2, 2004, it was alleged that appellant had unlawfully used force or violence against Rudolpho G. ( 242). A notice of probation violation was also filed. On February 3, appellant admitted the assault allegation and it was found true. The probation violation allegation was dismissed. Appellant was ordered continued as a ward and was returned to camp.

On February 22, 2004, appellant struck another Santa Barbara Juvenile Hall detainee in the head and torso with his fist. On April 14, 2004, a subsequent petition was filed alleging that appellant had committed misdemeanor battery. Appellant admitted the allegation on April 28, 2004, and the petition was sustained. He was continued as a ward of the court and was ordered to serve seven days in juvenile hall and thereafter return to camp for up to six months.

On January 22, 2005, the police contacted appellant while he was with six known gang members after 10:00 p.m., in violation of the terms of his probation.

Appellant was arrested and transported to juvenile hall the following night for breaking his curfew again. A plastic baggie containing 15 pieces of broken sparkplug was removed from his pocket. On January 25, 2005, a subsequent petition was filed alleging possession of burglary tools ( 466). A separate notice of probation violation was also filed alleging that appellant had associated with known gang members, violated curfew, and possessed burglary tools. On January 26, appellant admitted possessing the burglary tools and that allegation was found true. The probation violation allegations were dismissed. The court ordered appellant detained in juvenile hall for 14 days and to adhere to a 9:00 p.m. curfew.

On February 2, 2005, appellant was contacted away from home after 9:00 p.m., in violation of his curfew. He also violated his probation by refusing to submit to an alcohol screening test. A notice of probation violation was filed on February 4, but it was subsequently dismissed. Appellant was ordered to serve 21 days in juvenile hall.

At approximately 9:15 p.m. on February 19, 2005, Alejandro Ruiz approached two police officers and told them that three men had attacked him. Ruiz was bleeding, and his right eye was swollen. When appellant appeared in the doorway of a nearby residence, Ruiz identified him as one of the assailants. Appellant failed to comply with the officers' repeated demands to get on the ground, so a Tazer gun was used to subdue him. On March 8, 2005, a subsequent petition was filed alleging that appellant had committed felony assault by means of force ( 245, subd. (a)(1)). Appellant thereafter admitted the allegation, and the petition was found true. The court ordered appellant detained in juvenile hall pending transportation to the Los Prietos Boys Camp for a commitment of 180 days.

On June 18, 2005, appellant and four other wards escaped from Los Prietos Boys Camp. He was subsequently apprehended. On June 24 and 29, probation violation notices were filed. In a subsequent petition filed on June 28, 2005, it was alleged that appellant had escaped from a juvenile facility, in violation of Welfare and Institutions Code section 871, subdivision (a). On June 30, 2005, appellant admitted the escape allegation, and it was accordingly found true. The probation violation allegations were dismissed. Appellant was ordered detained in juvenile hall for 30 days pending his return to camp.

On August 2, 2005, appellant approached fellow detainee Jesus M. and hit him with a closed fist 10 to 15 times. After Jesus fell to the ground, appellant repeatedly "stomped" on his head and body. Appellant also repeatedly hit a teacher who intervened. On August 3, 2005, a subsequent petition was filed alleging that appellant had committed misdemeanor battery on school property ( 243.2, subd. (a)), and felony battery against a school employee ( 243.6). Appellant admitted the misdemeanor battery allegation on August 10, and it was found true. The felony battery count was dismissed. He was ordered to serve 45 days in juvenile hall and then returned to camp.

On November 27, 2005, appellant was playing softball at Los Prietos Boys Camp when another ward, Kenneth H., ran into him during a play at second base. After the game was over, appellant picked up a bat and swung it at Kenneth. The first swing missed, so appellant swung the bat again and hit Kenneth in the leg. A subsequent petition was filed on November 29, 2005, alleging that appellant had committed felony assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1)). Appellant admitted the allegation the following day, and the petition was sustained.

Prior to the disposition hearing, the probation department filed a report recommending that appellant be committed to CYA. While placement in a group home facility was considered, all of the potential placements had rejected appellant due to his history of violence and gang activity. The report noted that appellant had demonstrated no remorse for his actions, and concluded that he is a danger to the safety of other wards, staff, and the community. It was also noted that appellant had been a member of the Guadalupe gang since he was 11 years old, and had not expressed any desire to leave the gang. Appellant also told his probation officer that he would continue to participate in assaultive behavior if he knew he would not get caught.

At the disposition hearing, appellant offered the testimony and report of Dr. Beiley, a retained psychiatrist, who opined among other things that appellant suffered from intermittent explosive disorder which rendered him unable to control his anger. The doctor recommended that appellant be committed to a psychiatric facility for cognitive behavioral therapy and medication. Appellant also argued that he was not properly "screened" for alternative placements because none of the facilities that rejected him had the benefit of Dr. Beiley's report.

Following the dispositional hearing, the court found appellant had been unsuccessful on probation, that his mental and physical condition and qualifications rendered it probable that he would benefit from a CYA placement, and that less restrictive placements had been attempted or considered without success. The court reasoned: "We don't have the intermittent explosive diagnosis behavior. There was reflection before this last incident happened. [] Backing it up, . . . we had [appellant] participating in a group attack . . . on a street vendor. It was gang-related . . . . We have him gang-entrenched with a Guadalupe gang. []  . . . Now, I don't make a decision based upon a lack of options, but I have to look at the entire picture. And protection of the public is a consideration. . . . [] It just bothers me to send anybody to the Youth Authority. It's not my first choice on anything, for anyone. But the fact is, that he will be housed there. The public is going to be relatively safe. His mental condition and background is such that he can benefit from being locked up there. []  And I don't have any alternatives. . . . [] Even if there were, I think, then I'd be struggling with it.

. . . Is the placement willing to take him just because they are willing to take anybody? Or did they really consider this and feel that is the best mix for [him]? [] . . . But here I have nothing being proposed to me, other than probation saying, 'Look, we've screened him and everyone has rejected him.' And I need to protect the public. We need to go ahead and let him learn that you can't go around hitting people." Accordingly, the court ordered appellant committed to CYA for a maximum term of confinement of six years six months, with 605 days credit for time served.

DISCUSSION

Appellant contends the juvenile court abused its discretion in committing him to CYA because (1) alternative placements were not sufficiently considered; and (2) the evidence is insufficient to establish that he will benefit from the commitment. We disagree.

In reviewing CYA commitment decisions for an abuse of discretion, we "indulg[e] all reasonable inferences to support the juvenile court's decision. [Citations.] Nonetheless, there must be evidence in the record demonstrating both a probable benefit to the minor by a CYA commitment and the inappropriateness or ineffectiveness of less restrictive alternatives. [Citations.] A CYA commitment may be considered, however, without previous resort to less restrictive placements. [Citations.]" (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) Findings made in connection with a CYA commitment order will be affirmed on appeal if supported by substantial evidence. (In re Ricky H. (1981) 30 Cal.3d 176, 184.)

The court was well within its discretion in committing appellant to CYA. Contrary to appellant's claim, the court expressly considered the availability of alternative placements, and concluded that none were available. The probation officer had "strongly considered" appellant's placement in a group home, but all of the available placements had rejected him due to his history of violence and gang affiliation. Although appellant notes that none of the potential placements had the benefit of Dr. Beiley's report, the court concluded that the report could actually "hurt" appellant. Appellant's reliance on the report hinges on Dr. Beiley's diagnosis of intermittent explosive disorder as the cause of his behavior, a condition which the doctor indicated can be treated with medication and appropriate therapy. In his report, however, the doctor conceded that the majority of appellant's history of violence had nothing to do with that disorder, but was rather motivated by his gang association and his perceived need "to maintain respect and not appear 'lame.'" The record also indicates that the potential placements had rejected appellant as a result of those behaviors. Moreover, the doctor provided no support for his statement that appellant would not be evaluated for mental illness, given medication for any diagnosed illness, or receive the necessary monitoring and treatment at CYA. The applicable regulations provide for such services. (Cal. Code Regs., tit. 15, 4611.)

The record also belies appellant's contention that his CYA commitment will provide no probable benefit to him because the facility "is in a state of crisis and is not able to provide wards with adequate programs to address their needs." Although a consent decree filed in another case in 2004 indicates that CYA has acknowledged the institutional problems of which appellant complains (Farrell v. Allen (RG03079344)), that decree, as well as subsequent documents filed in that matter, indicate that extensive ongoing efforts are being made to rectify the problems under judicial oversight.^[3] To the extent appellant advocates a moratorium on all CYA placements during this transition period, the materials upon which he relies are insufficient to support such a drastic measure. On the contrary, the consent decree expressly prohibits CYA from accepting wards for which it cannot provide adequate facilities or treatment. Appellant fails to present any evidence demonstrating that it is impossible for him to derive any benefit from a CYA commitment as a result of the conceded deficiencies.

Appellant also contends that his CYA commitment violates his due process rights because the documents for which he sought judicial notice fatally undermine the finding that he will probably benefit from the commitment. Appellant did not raise this claim below, so it is waived. (People v. Smithey (1999) 20 Cal.4th 936, 995.) In any event, the claim lacks merit for the reasons we have already stated.

The judgment (CYA commitment order) is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Arthur A. Garcia, Judge

Superior Court County of Santa Barbara

______________________________

Susan B. Gans-Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven E. Mercer, Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

^[1] CYA is now known as the Division of Juvenile Justice (DJJ). The parties refer to DJJ as CYA. In the interests of clarity, we do the same.

^[2] Further statutory references are to the Penal Code, unless otherwise noted.

^[3] Pursuant to appellant's request, the juvenile court judicially noticed the consent decree. That document is included in the record on appeal. Appellant now requests that we take judicial notice of a January 31, 2005, stipulation, a January 9, 2005, order, and special master reports filed on April 6, 2006, and August 4, 2006, all of which were prepared in Farrell v. Allen in response to the consent decree. According to appellant, we must judicially notice those records pursuant to Evidence Code section 459, subdivision (a)(2). He is incorrect. While that statute provides that we are required to judicially notice documents that were actually noticed in the trial court, it does not compel us to notice matters that were not offered below. We review the trial court's order to determine whether it constitutes an abuse of discretion, and it cannot be said that the court abused its discretion by failing to consider evidence that was not before it. For the same reason, we do not consider documents that were filed after the order on appeal was rendered. (In re Marriage of Folb (1975) 53 Cal.App.3d 862, 877, disapproved on other grounds in In re Marriage of Fonstein (1976) 17 Cal.3d 738, 749, fn. 5 [reviewing courts generally disregard matters that occur after entry of judgment under review].) Accordingly, appellant's request for judicial notice is denied.