Filed
10/17/13 In re Jordan S. CA5
NOT TO BE PUBLISHED IN
THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
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purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
FIFTH APPELLATE DISTRICT
>
In re JORDAN S., a Person Coming Under the Juvenile Court Law. | |
THE PEOPLE, Plaintiff and Respondent, v. JORDAN S., Defendant and Appellant. | F066256 (Super. Ct. No. 512219) |
THE
COURT
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APPEAL from a judgment of the
Superior Court of
County. Nan Cohan Jacobs, 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, Eric L. Christoffersen and John G. McLean, Deputy
Attorneys General, for Plaintiff and Respondent.
The court continued appellant, Jordan S., as a
ward of the court after Jordan admitted allegations in a
Code, § 777) that he violated his probation.
On appeal, Jordan contends the court abused its discretion when it
committed him to the Division of Juvenile Justice (DJJ). We affirm.
FACTS
On March 23, 2010, Jordan, who was
then 14 years old, walked up behind a female acquaintance and grabbed her
breasts. The girl told Jordan not to do
that again. When Jordan began saying
things to her, the girl slapped him.
Jordan threw a soda at the girl and she slapped him again. Jordan then spit on the girl and punched the
wall.
On May 18, 2010, at approximately
3:00 p.m., Jordan and other juveniles argued with Robert Aguilar over Jordan
harassing one of Aguilar’s sons. During
the argument Jordan kicked the side and door of Aguilar’s minivan and scratched
it with a knife. When Monica Budd and
Beth Roland intervened, Jordan kicked Budd’s car several times and threw a
knife at it. Roland told Jordan she was
going to call the police and Jordan grabbed her cell phone and broke it in
half.
On June 24, 2010, at approximately
3:00 p.m., Jordan struck a juvenile on the head with a skateboard. When the victim fell, Jordan continued to
punch him. During the attack the victim
sustained a “closed head injury,†a black eye, bruising on the nose, and
abrasions to the back of his head.
On July 13, 2010, the district
attorney filed a first amended petition charging Jordan with misdemeanor
243.4, subd. (e)(1)), felony assault with a deadly weapon (count 2/Pen. Code, §
245, subd. (a)(1)), and misdemeanor vandalism (count 3/Pen. Code, §594, subd.
(b)(2)(A)).
Jordan subsequently admitted
committing these offenses. On September
15, 2010, the court declared Jordan a ward of the court and committed him to
juvenile hall for 120 days with credit for 84 days served.
On February 24, 2011, the court
continued Jordan as a ward of the court after he admitted violating his
probation by failing to attend school and testing positive for marijuana on
three occasions. The court committed
Jordan to juvenile hall for 14 days with credit for 2 days.
On March 7, 2011, at approximately
11:55 a.m., Jordan and two gang members approached three high school students
and asked them if they “banged.†When
one replied he did not, Jordan and the two gang members struck him in the face. An officer who spoke to the victim noticed
that his nose was bruised, swollen, and bleeding, and appeared to be
broken. Based on information provided by
the victim, officers located and detained Jordan and two other males. The victim was transported to the location
and positively identified Jordan as one of the males who assaulted him.
On March 9, 2011, the district
attorney filed a petition charging Jordan with assault by force likely to
produce great bodily injury (count 1/Pen. Code, § 245, subd. (a)(1)).
On April 15, 2011, following
Jordan’s admission of the assault offense, the court committed Jordan to
juvenile hall for 240 days with credit for 40 days served.
On October 19, 2011, Jordan admitted
violating his probation by failing to maintain good school attendance,
participate in counseling, and abide by his curfew. Jordan was also associating with Norteño gang
members and he admitted to a police officer that he was a “West Side Gangster
Crip.†The court committed Jordan to
juvenile hall for 120 days with credit for 3 days.
On January 24, 2012, Jordan was
suspended five days from school for throwing a pencil at his teacher.
On February 2, 2012, Jordan tested
positive for marijuana. He also had six
days of unverified or unexcused absences from school in February 2012.
On March 14, 2012, the prosecutor
filed an amended supplemental petition
alleging Jordan violated his probation by failing to obey all laws, regularly
attend school, and refrain from using alcohol and/or drugs.
On March 19, 2012, Jordan admitted
the allegations in the petition.
Jordan’s
Probation Report
Jordan’s probation report indicates
his mother failed to appear for a scheduled interview with Jordan’s probation
officer or to contact the officer to reschedule. It also noted that Jordan had been a ward of
the court for 18 and a half months and during that time he appeared before the
court four times on probation violations and new law violations. He had also been in and out of juvenile hall
five times, spent 12 months in custody, and each time he was released from
custody Jordan soon resumed his delinquent behavior. Jordan also failed to attend school
consistently, to attend counseling at all, and he continued to test positive
for marijuana and associate with known gang members and “prior
co-responsibles.†During an interview
with the probation department, Jordan admitted smoking marijuana every other
day and that he was a member of a local gang.
Additionally, Jordan had been
involved in numerous incidents in juvenile hall. On May 17, 2011, he received 24 hours of room
rest for assaulting another juvenile because the juvenile “snitched†on
Jordan’s friend. On June 8, 2011, he
received five hours of room rest for noncompliant and disrespectful
behavior. On June 14, 2011, he received
24 hours of room rest for punching a juvenile standing in a line because “the
voices in his head told him to.†On June
21, 2011, he received 24 hours of room rest for challenging a rival gang member
to fight and exchanging negative comments with him. On July 1, 2011, Jordan received seven hours
of room rest for challenging another juvenile to fight. On July 13, 2011, he received negative point
reflections for noncompliant and disrespectful behavior. On October 23, 2011, Jordan received 24 hours
of room rest for calling another juvenile a derogatory name and punching him in
the mouth. In that incident staff had to
pepper spray Jordan in order to get him to comply with their commands. On December 21, 2011, Jordan received 24
hours of room rest for repeatedly punching another minor in the head and face
and he had to be physically separated and restrained to end the assault. On March 26, 2012, Jordan received 24 hours
room rest for inappropriate language and for threatening staff.
The report also noted that Jordan
failed to attend an assessment counseling appointment on February 17, 2011, and
an eight-week Cognitive Behavioral Therapy Group that began on September 6,
2011. In the latter part of 2011 Jordan
and his mother cancelled several appointments with a case worker from Juvenile
Justice Behavioral Health and this resulted in the worker “closing†Jordan from
services.
On March 23, 2012, Jordan’s
probation officer contacted the DJJ and was informed that if committed there,
an assessment would be made to determine Jordan’s individualized needs. He would also be referred to the Impact
Program, which is designed to counsel and educate juveniles who are gang
affiliated, to the Counter Point Program, and to aggression intervention
training. Jordan would also be
encouraged to work towards obtaining his high school diploma or GED. The report recommended a commitment to the
DJJ.
On November 1, 2012, at a contested
dispositional hearing, defense counsel submitted
indicated that while living in Missouri, Jordan was sexually abused at 18
months of age and removed from his mother’s custody. They also disclosed that his mother’s
boyfriend regularly physically abused Jordan and his mother. Additionally, Probation Officer Brian Ousby
testified that he was very familiar with the programs at the DJJ and that it
offered a therapeutic program that addressed several issues of importance to
Jordan including sexual abuse and child abuse.
Ousby further testified that there were no long-term programs at
juvenile hall and that Jordan’s assaultive conduct made it difficult, albeit
not impossible, to place him in a group home.
However, Ousby was concerned that in a group home Jordan would continue
his assaultive conduct, that this would threaten the safety of staff and other
wards at the home, and that Jordan would be a disruptive influence in such a
setting.
After hearing argument, the court
deferred its decision to the following day so it could review medical records
submitted by defense counsel and the current and prior probation reports. The following day the court committed Jordan
to the DJJ for a maximum term of confinement of five years six months. In so doing, the court found that Jordan
would benefit from the services available at the DJJ, including those that
would address his sexual abuse and domestic violence victimization, his
substance abuse, and his mental health issues.
The court also found that a group home commitment would be inappropriate
because it provided a less structured setting than juvenile hall and Jordan had
not been able to control his behavior at the hall. In so finding, the court cited Jordan’s
inability to follow rules at juvenile hall, his numerous incidents of violence
against other minors, and his disrespect and defiance of staff. The court also concluded from Jordan’s dismal
behavior at the hall and his history of violence that other less restrictive
alternatives would be inappropriate or ineffective and that public safety
required placement in a more secure setting than a group home.
DISCUSSION
Jordan contends his commitment to
the DJJ serves no other purpose than punishment. He further contends the court made findings
based primarily on Jordan’s failure to take advantage of services offered to
him and his failure to stay in one location long enough to give him any
services except when he was in custody.
However, according to Jordan, his failure to participate in treatment
was due to the extremely poor supervision by his mother and not on his failure
to cooperate. Additionally, Jordan cites
the Juvenile Placement Manual prepared by the Center on Juvenile and Criminal
Justice to contend there were at least three high level group home placements
that work with juvenile gang members with assault-related adjudications and
histories of acting out in juvenile hall where the court could have placed
him. Jordan also contends the record
does not contain any evidence he would receive the services the court said he
would at the DJJ. Thus, according to
Jordan, his commitment to the DJJ must be reversed because less restrictive
alternatives to a DJJ commitment were available and there was absolutely no
evidence presented that he would benefit from being committed there. We will reject these contentions.
A. Standard of Review
A juvenile court’s
commitment decision may be reversed on appeal only upon a showing the juvenile
court abused its discretion. (In re
Todd W. (1979) 96 Cal.App.3d 408, 416.)
In evaluating the record, we apply the substantial evidence test. (In re Teofilio A. (1989) 210
Cal.App.3d 571, 579.) The reviewing
court indulges all reasonable inferences in support of the juvenile court’s
decision. (In re Asean D. (1993)
14 Cal.App.4th 467, 473.) A DJJ
commitment must conform to the general purpose of the juvenile court law. (Welf. & Inst. Code, § 202; In re Todd
W., supra, 96 Cal.App.3d at p. 417.)
Legislation enacted in 1984 recognized punishment as a rehabilitation
tool and shifted the “emphasis from a primarily less restrictive alternative
approach oriented towards the benefit of the minor to the express ‘protection
and safety of the public’ [citations], where care, treatment, and guidance
shall conform to the interests of public safety and protection.†(In re Michael D. (1987) 188
Cal.App.3d 1392, 1396.) The disposition
also must evidence probable benefit to the minor and that less restrictive
alternatives would be ineffective or inappropriate. (Welf. & Inst. Code, § 202, subd. (e); In
re Teofilio A., supra, 210 Cal.App.3d at p. 576.)
A juvenile court is not required to
attempt less restrictive alternatives before ordering a specific
commitment. (In re Asean D., supra,
14 Cal.App.4th at p. 473.) “[I]f 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.†(In
re Teofilio A., supra, 210 Cal.App.3d at p. 577.)
B. Analysis
Applying these principles, we
conclude the juvenile court acted within its discretion by committing Jordan to
the DJJ. Jordan needed long-term,
intensive treatment to deal with his assaultive conduct, anger management
issues, gang behavior, failure to attend school, and other issues arising from
having been a victim of domestic and sexual abuse. However, his extensive history of assaultive
behavior and his failure to attend school and to comply with court orders and probation
directives to submit to treatment required that he be placed in a secure
placement where he could receive the counseling and treatment he needed. These circumstances, particularly his
assaultive conduct, support the court’s finding that a commitment to a group
home would be inappropriate because it was not secure enough and it would put
staff and other wards at risk, as well as disrupt the treatment other wards
received there. The court could also
reasonably find that a commitment to juvenile hall would be inappropriate
because it did not have any long-term programs and Jordan’s numerous
commitments there had been ineffective in reforming him.
Moreover, the juvenile court law now
recognizes the rehabilitative effect of punishment and a concern for the safety
of the community. (Welf. & Inst.
Code, § 202.) Jordan’s assaultive
conduct remained unabated even in a secure juvenile hall setting where he spent
more than a year in custody. Thus, the
court could reasonably conclude from the failure of past placements, the danger
Jordan posed to the community, and the need to hold Jordan accountable, that
any placement short of a DJJ commitment would be ineffective or inappropriate.
Further, Probation Officer Ousby
testified that he was informed by an intake officer at the DJJ that if Jordan
were committed there, an assessment of his individual needs would be conducted
and Jordan would then be referred to programs that addressed his gang
affiliation and aggression. Jordan would
also be encouraged to work toward earning his high school diploma or GED. Ousby also testified that the DJJ offers a
therapeutic treatment program for
sexually
abused children that addressed several issues of importance to Jordan including
sexual abuse and domestic abuse. Additionally, the court could reasonably find
that Jordan would benefit from the structure and discipline inherent in a
commitment to the DJJ, as well as the vocational and educational programs, and
other counseling and therapeutic programs available there. (Cf. In
re Tyrone O. (1989) 209 Cal.App.3d 145, 153 [juvenile court properly found
that the DJJ, with its specialized institutions and rehabilitative programs
tailored to a delinquent’s sophistication and need for security, probably would
benefit minor].) Thus, the record also
supports the juvenile court’s finding that Jordan would benefit from a
commitment to the DJJ.
Jordan cites three group homes that
purportedly serve youth from Stanislaus County who have a history of violence,
gang affiliation, and mental disorders as examples of less restrictive
placements that would have been appropriate for him. According to Jordan, these group homes are
listed in the 2008/2009 edition of the Juvenile Placement Manual that is
published by the Center on Juvenile and Criminal Justice. However, this manual was not introduced into
evidence in the juvenile court. Thus,
this claim is not properly before us because it relies on evidence outside the
record. (People v. Seaton (2001) 26 Cal.4th 598, 634.) In any event, the court found that a group
home placement would be inappropriate for the reasons previously discussed and
this finding is amply supported by the evidence.
Further, Jordan’s assertion that the
record does not contain any evidence that he would benefit from a commitment to
the DJJ ignores the previously discussed evidence that Jordan would probably
benefit from a DJJ commitment.
Accordingly, we conclude that the court did not abuse its discretion
when it committed Jordan to the DJJ.
DISPOSITION
The judgment is affirmed.
J., and Franson, J.
