In re Joseph M.

Filed 4/30/07 In re Joseph M. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Margaret A. Powers, Judge. Affirmed.

Brent Riggs, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Eric A. Swenson, Deputy Attorney General, for Plaintiff and Respondent.

Appellant Joseph M. (appellant) alleges that the juvenile court abused its discretion by committing him to the Division of Juvenile Justice, formerly known as the California Youth Authority (DJJ or CYA).^[1] We disagree and will affirm.

Facts and procedural history

On April 26, 2004, appellant was arrested in Hesperia, in San Bernardino County, and charged with receiving stolen property and possessing a controlled substance. (Pen. Code, 496, subd. (a); Health & Saf. Code, 11377, subd. (a).)^[2] On April 29 appellant admitted receiving a travel trailer he knew was stolen. The court dismissed the drug charge and ordered him detained in Juvenile Hall pending a disposition report. Disposition was set for May 13.

Appellant told the probation officer that he had been using drugs -- marijuana and methamphetamine -- for about five years, that he had stolen at least 10 cars, and that he had an I dont give a fuck attitude. When he was involved in crimes he had no intention of holding back and would participate in as much crime as he could get involved in. However, he was now ready to straighten up his life and quit his criminal behavior.

Appellants aunt said that he had been turned over to her when he was three days old and that the whereabouts of his parents was unknown.^[3] He did not like school: he had not been attending regularly for about two years; he had been expelled from Ranchero Middle School for having a bag of marijuana; he had been enrolled in two Options For Youth programs but had been dropped from both for lack of attendance. In the three months prior to the current crime, things had gotten really bad. Appellant had become extremely mouthy and did whatever he wanted without fear of consequences. Appellants aunt had absolutely no control over his behavior. She wanted a probation officer to help her watch him every day, help him get off drugs, make sure he returned to school, and ensure that he stopped associating with bad people.

From various collateral reports, the probation officer gleaned a record of appellants criminal history. In June 2000 he had been arrested on a felony charge of sale of a controlled substance, but had been convicted of only misdemeanor possession. (Health & Saf. Code, 11352, subd. (a) & 11377, subd. (a).) He had served a one year term of probation from January 2001 to January 2002 without incurring any violations. Two weeks prior to the current charges, he had been cited for possession of marijuana. At the time of the probation interview, he was awaiting a hearing on burglary (Pen. Code, 459) charges stemming from a January 1, 2004, incident in which he had broken into the Beaumont Unified School District bus yard and stolen a Toyota Camry. At juvenile hall, he had had a difficult time. He had trouble following unit structure and often times showed a dont care attitude.

By appellants own admission, his criminal history was far more extensive than indicated by the current offense. Because of the depth of his involvement in the criminal community the probation officer did not believe his statements that he wanted to change his lifestyle. The report recommended that appellant remain in custody for a total custody time of 49 days, until June 12, 2004, and then be placed on the intensive supervision provided by the SUCCESS Program, in the custody of his aunt, but with a zero tolerance approach. In addition, appellant should be referred to the BRIDGES juvenile work program. At the hearing on May 13, the court followed the recommendations in the probation report and ordered appellant detained in Juvenile Hall until June 12.

On June 24, in an initial hearing in the Riverside County case, appellant admitted stealing the Toyota Camry from the Beaumont Unified School District bus yard (Veh. Code, 10851, subd. (a)) and the burglary charge was dismissed. Because his legal residence was in Hesperia, the matter was transferred to San Bernardino County for disposition.

A probation department memo filed July 26 reported that appellant had been doing well in the SUCCESS program and in the custody of his aunt since his June release from Juvenile Hall. He had enrolled in the Options For Youth Home Study Program and the Bridges Community Service Program. His aunt was trying to supervise him constantly, taking him to work with her when he was not in school, keeping him occupied, and watching over him all day. The memo noted that appellant had admitted using marijuana and violating his curfew on July 4 and had received a citation for vandalism on July 5, but recommended that he receive no further consequence for the Riverside County car theft other than paying $6,222.92 in restitution to the school district. At the review hearing, also on July 21, the court indicated it had read the probation memo and continued appellants probation, but did not order the recommended restitution.

On August 12 appellant was formally charged with a number of probation violations: using marijuana, leaving home without permission, violating curfew, skipping school, and vandalizing his room in his aunts home with an axe. During the axe incident, which had occurred on August 10, appellant also threatened to beat up his aunt. On August 26 he admitted the vandalism and threats, and the court found he had violated two terms of his probation. On September 17 appellant was placed in the Regional Youth Educational Facility (RYEF). The placement was chosen to meet his needs for a secure setting, close supervision, basic education, and individual counseling to deal with issues of impulse control, anger management, substance abuse, and criminal behavior. By his own report and that of the probation officer, appellant seemed to do well at RYEF for a number of months. On March 22, 2005, he was released to the custody of his aunt.

Less than three months later, on June 8, appellant was arrested and sent back to Juvenile Hall after he was found sitting behind a bank in Hesperia with a loaded gun in his waistband and a brief case containing an additional 25 rounds of ammunition, a Halloween mask, and paperwork for a stolen car. On June 28 appellant admitted to being a minor in possession of a firearm (Pen. Code, 12101, subd. (a)(1)). In exchange the district attorney agreed not to file an assault with a deadly weapon charge (Pen. Code, 245, subd. (a)(1)).

On July 12 the probation department filed another disposition report. The report listed the various services appellant had been provided in the past, including, among other things: formal probation, juvenile traffic court, intensive supervision in the SUCCESS program, anger management, gang awareness, and Families in Control classes, drug and alcohol counseling, community services, and a referral to a community-based organization. Most of these services were again being recommended as likely to help him return home. At the hearing on the same date, the court indicated it had read and considered the report and, at the request of appellant and defense counsel, ordered appellant screened for another community placement, Lodge Makers, near his home in Hesperia. The court asked appellant what he thought would happen when it ran out of placements. I go to YA, sir. I dont want that to happen, replied appellant. I dont want that to happen either . . .  []  . . .  []  . . . so try to make this work . . . , said the court. Yes, sir, appellant answered.

Appellant was placed at Lodge Makers on July 26, but ran away the same day. He remained at large until August 5 when he rolled a stolen Ford Expedition sport utility vehicle at the end of a high-speed chase by police. On August 8 appellant admitted stealing the sport utility vehicle. (Veh. Code, 10851, subd. (a), a felony.) A probation report filed September 9 recommended he be placed at DJJ where consultant Joe Antenucci said he would have victim awareness classes and individual counseling, and would be in an informal substance abuse program. Because of his age, the focus would be on his education. Expected time of confinement was one year, but DJJ would have jurisdiction over him until he turned 21.

At the dispositional hearing on September 9 the matter was set for contest. The court ordered appellant transferred from Juvenile Hall to DJJ for a 90-day diagnostic evaluation. The evaluation, written on December 13 and filed with the court on December 19, reported the conclusions of an interdisciplinary team who had studied his case. The report included the results of a psychological evaluation performed by staff psychologist Michael Du Bow and an evaluation by casework specialist Ollie James.

Du Bow diagnosed appellant as having normal intelligence but a moderately severe conduct disorder, and as being addicted to methamphetamine, marijuana, and alcohol. Appellant told James that he had begun using these substances when he was 11 years old and had been selling drugs on and off since he was 12. Both consultants concluded that appellant required extensive drug treatment and should be placed in a secure and highly structured setting where he could receive educational services and counseling and get treatment for his drug addiction. In view of his having failed two community placements and having rejected all efforts to assist him . . . to get help for his drug addiction and make changes in his attitude and behavior the staffing team at DJJ recommended that he be committed there.

At the request of appellants counsel he was also examined by psychologist Dr. Edward Ryan. Like Du Bow, Dr. Ryan concluded that appellant was of normal intelligence and had a conduct disorder and substance abuse problem. Unlike Du Bow, Dr. Ryan believed appellant also had a learning disorder. Dr. Ryan agreed that appellant needed a placement that would make it quite difficult for him to abscond . . .  but recommended a vocational-track educational program and drug abuse treatment. Choices included Rites of Passage, VisionQuest, or CYA. If CYA were chosen, the psychologist felt, the prospect of his spending much of his life [in] prison is relatively high.

Contested disposition proceedings were held on February 6 and 7, 2006. Dr. Ryan testified to the results of his examination and gave his opinion that despite appellants having been in possession of a loaded gun, his danger to the community was low. His poor school performance had generated a downward cycle of anger and depression. This, in turn, led to substance abuse and to association with older drug-addicted teens. Dr. Ryan did not see that appellant had a serious anger management problem or that he posed a significant danger to the community. Dr. Ryan repeated his recommendation that appellant be placed at VisionQuest or in northern Nevada in the Rights of Passage program. At the close of testimony, Defense counsel argued extensively that appellant should not be sent to DJJ.

The juvenile court indicated that it had considered the various probation reports, Dr. Ryans report, and his testimony. Appellants crimes were increasing in seriousness; his most recent crime had involved a loaded gun and the court was concerned about the safety and protection of the public. Appellant also had an alcohol and drug abuse problem; he had failed previous rehabilitation attempts; he had been tried in and had failed prior disposition placements and had exhausted local programs available to the court. VisionQuest, the court pointed out, was another name for one of the Lodge Makers placements from which appellant had most recently run away. The court did not believe placing appellant at a remote place like Rights of Passage would solve his running away problem. Appellant was a person who lacked impulse control and who acted without regard to consequences. He would likely act first and think later about how he was going to get home from a remote area, and he needed a locked placement. He also needed a closed setting with substantial counseling directed toward modification of his behavior. The court had weighed and considered less restrictive alternatives and had rejected them as inappropriate. It was fully satisfied that his mental and physical condition . . . [was] such as to render it probable that [he would] benefit [from] the reformatory, educational, discipline and other treatment provided by [CYA] and it committed him for five years.

Discussion

A. Standard of Review:

We review a [CYA] commitment decision only for abuse of discretion and indulge all reasonable inferences to support the decision of the juvenile court. (In re Asean D. (1993) 14 Cal.App.4th 467, 473; In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) There is no abuse of discretion where the commitment is supported by substantial evidence on the record. (In re Kevin F. (1989) 213 Cal.App.3d 178, 186; In re Tyrone O. (1989) 209 Cal.App.3d 145, 151.)

B. CYA/DJJ Commitment:

In determining placement in a juvenile delinquency case, the court focuses on the dual concerns of the best interests of the minor and the need to protect the public. In arriving at a disposition, the court considers the probation officers report and any other relevant and material evidence that may be offered. (Welf. & Inst. Code, 202 subd. (d); In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684.) The court may consider a commitment to CYA without first having tried less restrictive placements. (In re Asean D., supra, 14 Cal.App.4th at p. 473.) Finally, 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. [Citation.] (Ibid.) 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.] (In re Angela M., supra, 111 Cal.App.4th at p. 1396.)

The record here contains more than sufficient evidence to support the courts commitment decision. It demonstrates the ineffectiveness of several less restrictive alternatives which the courts and the probation department had tried; it outlines the probable benefit to appellant from the programs offered at DJJ; and it indicates a safety benefit to the public from his placement in a locked facility.

All the placement alternatives the court tried for appellant had been ineffective. He had been placed on informal probation in the custody of his aunt, but she could not control him. He did whatever he wanted without fear of consequences. He had been placed on formal probation, to no avail. He had received services from juvenile traffic court; he had had intensive supervision in the SUCCESS program; he had been given anger management, gang awareness, and Families in Control classes, drug and alcohol counseling, and referrals to community-based organizations like BRIDGES. He had completed six months in RYEF, but less than three months after his release he had re-offended. As a last chance and at his own request, he had been placed in a facility near his home but had run away within hours.

Appellants own expert, Dr. Ryan, as well as DJJ staff psychologist Du Bow and caseworker James, agreed on the essential points of appellants diagnosis and needs. He had a conduct disorder and a serious substance abuse problem. He was at risk of running away and needed to be closely supervised. He would benefit from a highly structured setting. He needed substance abuse treatment and counseling and an educational program. These were precisely the strengths of the DJJ program as described by consultant Antenucci and reiterated by the court.

Finally, there is no doubt that society needed to be protected from appellant and that the court was correct in considering this factor. Appellant had taken an axe to his room, had threatened to beat up the elderly aunt who had cared for him since birth, and had most recently been found with paraphernalia for a bank robbery in his possession and a loaded gun on his person. The court did not abuse its discretion in concluding that in his own interests and for the protection of society, DJJ was the best place for appellant.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

HOLLENHORST

J.

KING

J.

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^[1] We will use the acronyms interchangeably throughout this opinion.

^[2] The Reporters Transcript filed March 15, 2006, containing transcripts of hearings on April 29, May 13, August 13, and August 26, 2004; hearings of June 28, July 12, August 8-9, September 9, and September 21, 2005; and hearings of February 6-7, 2006, will be designated 1RT in this opinion. The Reporters Transcript filed July 14, 2006, containing transcripts of hearings on September 14, October 14 and November 3, 2004; and hearings of March 11, April 11, and May 2, 2005, will be 2RT. The transcript of the single hearing of June 24, 2004, will be 3RT.

^[3] This aunt, Louise Morales, whose own birth date was February 2, 1939, had cared for appellant almost from birth. She is variously referred to throughout the record as his aunt, his mother, his guardian, and even his grandmother. We will refer to her as appellants aunt.