Filed 1/5/18 In re Jonathan 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 JONATHAN V., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

JONATHAN V.,

Defendant and Appellant.

F074227

(Super. Ct. No. 13CEJ600782-1V5)


OPINION

THE COURT*
APPEAL from an order of the Superior Court of Fresno County. Michael G. Idiart, Judge.
Candice L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Doris A. Calandra, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
In this appeal, Jonathan V. (Jonathan) contends that the juvenile court abused its discretion by committing him to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ). We affirm.
FACTS
In September 2013, Jonathan was 14 years old when he admitted the allegations in a juvenile wardship petition (Welf. & Inst. Code, § 602) charging him with receiving stolen property (i.e., a vehicle; Pen. Code, § 496d, subd. (a)), driving the wrong way while evading a peace officer (Veh. Code, § 2800.4), evading a peace officer (Veh. Code, § 2800.1, subd. (a)), and driving without a valid driver’s license (Veh. Code, § 12500, subd. (a)).
In October 2013, the juvenile court placed Jonathan in the deferred entry of judgment (DEJ) program.
In February 2014, the juvenile court terminated Jonathan’s DEJ program and adjudged him a ward of the court. The court placed Jonathan on probation and committed him to the Juvenile Justice Campus (JJC) for 30 days.
In July 2014, a supplemental petition (§ 777) was filed alleging Jonathan violated his probation by: (1) failing to obey his probation officer’s lawful directives; (2) failing to complete his substance abuse treatment program; (3) failing to abide by his electronic monitoring program; (4) failing to attend school; (5) failing to comply with his “Day Reporting Center Program”; and (6) testing positive for drugs on March 26, May 19, and July 14, 2014.
The same month, a subsequent petition (§ 602) was filed charging Jonathan with four counts of petty theft (Pen. Code, § 484, subd. (a)).
In August 2014, Jonathan admitted two of the petty theft counts in the subsequent petition, and the juvenile court found his admission constituted a violation of probation. After revoking and reinstating his probation, the court committed Jonathan to the JJC for 55 days.
In January 2015, a second subsequent petition (§ 602) was filed charging Jonathan with attempted first degree residential burglary (Pen. Code, §§ 459/460, subd. (a)), assault with a firearm (Pen. Code, § 245, subd. (a)(2)), making criminal threats (Pen. Code, § 422), and carrying a loaded firearm with intent to commit a felony (Pen. Code, § 25800, subd. (a).) The petition further alleged that Jonathan personally used a firearm in the commission of the crime of making criminal threats.
In February 2015, Jonathan admitted the charge of making criminal threats and the associated firearm use enhancement. The juvenile court found Jonathan in violation of his probation and ordered his probation revoked.
In March 2015, the court reinstated Jonathan’s probation and committed him to the New Horizons Program for 365 days.
In June 2015, a second supplemental petition (§ 777) was filed alleging that Jonathan violated probation by: (1) failing to obey his probation officer’s lawful directives; (2) failing to comply with the New Horizons Program from which clinical and counseling staff requested Jonathan’s removal; and (3) failing to refrain from associating with gang members.
The next day, Jonathan admitted he violated his probation as alleged in the second supplemental petition and the court ordered him detained pending disposition.
At a continued disposition hearing in October 2015, the juvenile court reinstated Jonathan’s probation and committed him to the JJC for 100 days.
On May 3, 2016, a third supplemental petition (§ 777) was filed alleging that Jonathan violated his probation by: (1) failing to refrain from associating with gang members; (2) failing to obey the lawful directives of his probation officer; and (3) submitting a positive drug test for marijuana.
On May 11, 2016, Jonathan admitted he violated his probation as alleged in the third supplemental petition.
On May 19, 2016, a fourth supplemental petition (§ 777) was filed alleging that Jonathan violated probation by failing to obey all laws. Specifically, it was alleged that evidence connected him to the commission of a residential burglary (Pen. Code, §§ 459/460, subd. (a)), during which a Smith & Wesson .357 revolver was taken from the master bedroom.
On May 31, 2016, Jonathan admitted he violated probation as alleged in the fourth supplemental petition. The probation department recommended that the juvenile court commit Jonathan to the DJJ. The court set the matter for a disposition hearing on June 14, 2016.
On June 14, 2016, the juvenile court ordered Jonathan’s counsel to provide the court with a statement of mitigation and continued the disposition hearing to June 30, 2016.
On June 30, 2016, the juvenile court continued the disposition hearing to July 8, 2016, at the request of Jonathan’s counsel.
On July 8, 2016, Jonathan’s counsel filed a statement in mitigation requesting that Jonathan undergo screening for commitment to the Substance Abuse Unit (SAU). Alternatively, counsel requested that Jonathan be returned to the New Horizons Program on the ground Jonathan was “now operating under an [Individualized Education Plan (IEP)] that is designed to help maximize [his] potential for success.”
At the July 8, 2016, continued disposition hearing, the juvenile court indicated that it had received and reviewed Jonathan’s statement in mitigation, as well as the probation department’s reports. The court acknowledged that Jonathan’s counsel was asking the court to “explore any and all other approaches, other than DJJ, and … would like Jonathan to be screened for placement in SAU.”
The juvenile court next asked the probation officer to address Jonathan’s requests. In response, the probation officer stated:
“Well, Your Honor, I think that the DJJ recommendation still remains appropriate. I think at this time we have to look at the services he’s been afforded thus far and that a lot of the issues that we’re talking about are delinquency related and, you know, revolves around [Jonathan] making poor choices. We’ve given him the most exhaustive local program, which is [the New Horizons Program], which encompassed a substance abuse component. However, [Jonathan] failed to take advantage of that program. I think at this point we have to look at, you know—if we give him a local commitment, it’s going to be more of similar type programs that he’s received. When we look at DJJ, we look at it not as a punitive approach, but services that are not offered locally. [Jonathan], in reviewing the report, DJJ was contacted and they reported that [Jonathan] would undergo a diagnostic to provide additional services at the state level that are not offered here. He would actually be eligible at one year for potential release, according to the category offender that he was noted to be. His jurisdictional age would be age 23. [¶] [Jonathan], you know, has a history with us, he’s on his fifth violation of probation. He’s gone through short term commitments, long term commitments, and we feel that the only viable option at this point is to look outside of the County of Fresno and explore the services offered by DJJ.”
After listening to the probation officer, the juvenile court stated its inclination was “to explore all alternatives before I make the ultimate decision” including “screening for placement of SAU.” The court then ordered the screening, which the prosecutor indicated could be done at “the next juvenile drug court” on July 20, 2016.
On August 15, 2016, the probation department filed a probation hearing report, noting that on July 20, 2016, Jonathan was screened for the SAU and Juvenile Drug Court programs and was “denied for both programs.” The report also described Jonathan’s recent negative behavior in custody as follows:
“On July 9, 2016, [Jonathan] was placed on a High Security Contract (HSC) for refusing to leave the class resulting in him being escorted out by security staff. On July 16, 2016, [Jonathan] was again placed on HSC, due to being involved in a fight. [Jonathan] lost points for talking during qui[e]t time, not following staff instructions, getting sent out of the classroom, and communicating with a minor in the day room from his room, threat[en]ing his peers, gang talking and disrupting the pod on the graveyard shift and destroying county property.”
The report further stated that it remained the probation officer’s recommendation that the court order Jonathan committed to the DJJ. In support of this recommendation, the report set forth the following conclusion:
“Jonathan …, 17 years, six months of age, is making his fifth appearance before the Court for disposition, and [h]is fourth for violations of probation. [Jonathan] admitted to [] violating probation by failing to obey lawful directives of [his probation officer], positive drug tests, and failing to obey all laws.
“Your officer does not find any factors or change in circumstance that would warrant anything less than the recommendation that was made in the violation of probation disposition report dated May 31, 2016. To the contrary, your officer believes that [Jonathan’s] conduct necessitates a commitment to the [DJJ] …. Your officer believes that without strict interventions [Jonathan] will continue to pose a threat to not only himself, but to the community as well.
“Again your officer has considered all local less restrictive options available and rejects them as being insufficient to hold [Jonathan] accountable, while also providing protection to the community in conjunction with affording [Jonathan] with the most probable benefit for rehabilitation.”
At the beginning of the August 15, 2016, continued disposition hearing, the probation officer advised the juvenile court the probation department’s report for the hearing needed to be corrected because it erroneously stated Jonathan “is not an individual with exceptional needs” for purposes of special education. The court suggested crossing out the words “is not” and the probation officer agreed this would achieve the necessary correction.
The probation officer next stated that the probation department continued to recommend commitment to the DJJ for Jonathan, explaining:
“He’s already been tried on formal probation at the New Horizons Program and was terminated from the program. [¶] Your Honor, we feel he’s exhausted all local less restrictive programs available in Fresno County. We screened this matter with the [DJJ], and they informed us that he would be eligible to participate in Victim Awareness Classes and Anger Management Program and Aggressive Intervention Training. He’d also be eligible to participate in high school—excuse me, in a substance abuse program, and a high school education program. We feel that [DJJ] is a program that would best fit his needs.”
In opposing the recommendation of a DJJ commitment, Jonathan’s counsel argued:
“The thing that I particularly want to make sure that the court considers is the fact that until very, very recently, Jonathan was rolling through his educational, you know, school, and things without the benefit of his diagnosis for [Attention Deficit Hyperactivity Disorder (ADHD)], without the diagnosis that led to him being given an IEP, so he’s really been going through with one hand tied behind his back .… And what I believe that he is hoping for is a straight commitment, something like a six-month straight commitment, and give him a little more opportunity to go back and see if he can succeed now that his educational needs are being addressed, that his mental health needs are being addressed in a slightly different manner. I get that the Court may find that that’s not suitable or not the right choice here, given the other behavior that is before the court. We think that he ought to have an opportunity—or an opportunity to get back through the New Horizons Program and complete that now that he is—his educational needs will be met.”
After listening to the arguments of counsel and statements by Jonathan and Jonathan’s mother, the juvenile court ordered Jonathan committed to the DJJ for a maximum period of confinement of seven years. In making its placement determination, the court made the following relevant comments:
“[W]hat I’m reading here is a continual defiance of authority. You’re talking during quiet time, you’re involved in a fight, you’re not following staff instructions, you’re getting sent out of the classroom, you’re threatening your peers, you’re gang talking, you’re disrupting the pod on the graveyard shift and destroying county property. And you’ve been kicked out of everything—or failed to complete virtually everything that you’ve been ordered to do. I think we’ve, frankly, exhausted everything here locally that we can do. The reason I sometimes allow continuances in these matters is just to see if you’ll straighten your act up while you’re here, start being polite, start doing what you’re told. And a lot of us have to do things we’re told and that we don’t necessarily like them. But you know, you—you keep screwing it up. How many chances can you be given? [¶] … [¶] All right. Jonathan, I feel that I’ve worked with you. I think you’ve been given every ample opportunity. They say they’re only going to keep you at DJJ for a year if you, guess what, behave yourself. So time will tell. [¶] So having considered all the—and I adopt the rationale provided by Probation in terms of outlining the chances that you’ve been given here at the local level. I find you’ve exhausted each and every one of them.”
DISCUSSION
I. Applicable Legal Principles
Our review of the juvenile court’s placement of Jonathan is guided by established standards. In determining placement in a juvenile delinquency case, the juvenile court focuses on the dual concerns of the best interests of the minor and the need to protect the public. (§ 202, subd. (b).) In arriving at a disposition, the court considers the probation officer’s report and any other relevant and material evidence that may be offered. (In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684.) The 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. (§ 725.5.) 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.)
“The decision of the juvenile court may be reversed on appeal only upon a showing that the court abused its discretion in committing a minor to [DJJ]. [Citations.] An appellate court will not lightly substitute its decision for that rendered by the juvenile court. We must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them. [Citations.] 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.” (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.)
II. Jonathan’s Commitment to the DJJ Was Not an Abuse of Discretion
Jonathan has failed to show his commitment to the DJJ was an abuse of the juvenile court’s discretion. Jonathan’s sole argument is that the court abused its discretion by “failing to reconsider placement at New Horizons Program, now that an IEP was in place.” Jonathan’s argument is not persuasive for a number of reasons.
First, there is no evidence the juvenile court did not consider Jonathan’s request to place him in the New Horizons Program. The probation officer, the prosecutor, and Jonathan’s counsel each addressed the issue of the appropriateness of returning Jonathan to the program at the time of the continued disposition hearing on August 15, 2016. The court was not required to address explicitly the issue in making its placement determination. However, in light of the arguments before it, it is reasonable to infer the court implicitly considered and rejected Jonathan’s argument that, in light of his new IEP, the court should give him another opportunity to participate in the New Horizons Program, despite his previous failure in the same program.
Second, Jonathan has not demonstrated the juvenile court abused its discretion in rejecting his placement request on the merits. A DJJ commitment is appropriate where the evidence demonstrates probable benefit to the minor, and that less restrictive alternatives have been ineffective, or are inappropriate. (In re Michael D., supra, 188 Cal.App.3d at p. 1396.) Here, there was ample evidence supporting the finding that Jonathan would probably benefit from a DJJ commitment and that less restrictive alternatives (including the New Horizons Program) had been ineffective and would be inappropriate.
Third, nothing in the record supports the premise implicit in Jonathan’s argument on appeal, namely, that his recent IEP, dated May 19, 2016, would alleviate the behavioral problems that resulted in his first failure to complete the New Horizons Program in June 2015, because the IEP addressed his ADHD diagnosis.
The IEP, which was attached to Jonathan’s statement of mitigation, contains the following statements concerning his ADHD diagnosis: “Jonathan’s ADHD is significantly impacting his ability to achieve academically”; “he has demonstrated a severe discrepancy between his intellectual ability and his achievement in the area of basic reading skills”; and “[this] discrepancy is due to a disorder in attention.” The IEP then sets forth a number of annual goals relating primarily to areas of education, training, and employment.
Jonathan points to no evidence directly connecting his ADHD diagnosis and its negative effects on his ability to achieve academically to the behaviors that resulted in New Horizons’ staff requesting his removal from the program in June 2015. Rather, the admitted allegations of the second supplemental petition (§ 777) reflect that Jonathan had “been involved in numerous alleged gang related incidents, possession of contraband and … overall non-compliance with the rules and regulations of [the New Horizons Program].” Moreover, despite being given “several opportunities to successfully complete the program ..., even after prior interventions, [including] being placed on three behavior contracts and having a Staffing/Intervention Meeting, [Jonathan] failed to progress in [the New Horizons Program].”
Nothing in the record suggests that returning Jonathan to the New Horizons Program, even with the new IEP in place, would be effective or appropriate, either for Jonathan’s rehabilitation or for the rehabilitation and safety of other minors with whom the program would bring him into contact. Instead, the record compels the opposite conclusion that the juvenile court properly exercised its discretion in declining to give Jonathan another opportunity at placement in the New Horizons Program and ordering his commitment to the DJJ.
DISPOSITION
The order is affirmed.