In re J.T.

Filed 4/10/07 In re J.T. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

J. T. appeals from a dispositional order committing him to the California Department of the Youth Authority (CYA).^[1]Appellant contends that the juvenile court abused its discretion in committing him to the CYA because there was insufficient evidence that he would benefit from this commitment. He also contends that he posed no threat to public safety, and that the juvenile court committed him to the CYA to punish him. We affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant was 17 years old at the time of the probation violation underlying this appeal, which resulted in his commitment to the CYA. The instant violation was appellants 18th probation violation.

A. Wardship Petitions

Appellant began his three-year journey through the juvenile justice system at the age of 14, when the Alameda County District Attorneys Office filed a petition under Welfare and Institutions Code section 602^[2]in February 2003, alleging, as amended, that appellant committed two counts of automobile theft (Veh. Code,  10851), received stolen property (Pen. Code,  496), possessed a burglary tool (Pen. Code,  466), and drove without a license (Veh. Code,  12500, subd. (a).) Appellant admitted committing one count of automobile theft (Veh. Code,  10851) and driving without a license (Veh. Code,  12500, subd. (a)). He was adjudged a ward of the court ( 602) and placed on probation under the care of his mother. Appellants case plan identified him as having an individualized education program (IEP) due to a learning disability.

In May 2003, a second wardship petition ( 602) was filed, alleging that appellant committed automobile theft (Veh. Code,  10851) and drove without a license (Veh. Code,  12500, subd. (a)). Appellant admitted both allegations and was continued on probation.

In July 2003, a third wardship petition ( 602) was filed, alleging that appellant brandished a knife (Pen. Code,  417, subd. (a)(1)). The juvenile intake report discloses that the incident occurred following a fight between appellant and his brother at their residence. According to the report, appellant retrieved two knives from the kitchen and chased his brother in the dining room. Appellant admitted the allegations and was continued on probation.

A fourth wardship petition ( 602) was filed in November 2003, and as amended, alleged that appellant committed grand theft of a person (Pen. Code,  487, subd. (c)), and assault by means of force likely to produce great bodily injury (Pen. Code,  245, subd. (a)(1)). According to the juvenile intake report, appellant, along with four other suspects, stole a bicycle from a victim, after beating and kicking the victim. Appellant admitted both allegations. The juvenile court ordered appellant removed from his home and placed at Camp Sweeney.

B. Probation Violations

1. First Supplemental Petition

In January 2004, the probation department filed a supplemental petition ( 777a), alleging that appellant violated the terms of his probation by failing to follow Camp Sweeney staff instructions on two occasions. The juvenile intake report reveals that the first incident occurred on January 14, 2004, when appellant demanded to see the nurse while he was en route to school. According to the report, appellant became agitated and defiant when he was told that he could not immediately see the nurse. The report further states that appellant failed to follow the staffs instructions and stormed off to the nurses office without warning.

The juvenile intake report indicates that the second incident occurred the following day, on January 15, 2004, when appellant caused a disruption at the dining hall during lunch. According to the report, appellant yelled obscenities at a staff member and was totally out of control. Appellant was then removed from the dining hall. In a subsequent meeting with the camp director and other staff members, appellant once again became uncontrollable. According to the report, when the camp director decided that appellant needed to be transferred to juvenile hall, appellant became enraged, kicking and screaming, and fighting with adult male staff.

In February 2004, appellant admitted the allegations in the supplemental petition, and the juvenile court ordered appellant be detained at juvenile hall until a suitable foster home or group home was located. On February 26, 2004, appellant was placed in the Optimist Youth Home in Los Angeles County.

On June 4, 2004, appellants placement at the Optimist Youth Home was terminated, following several months of disruptive behavior. According to the detention order, appellant received daily incident reports for exhibiting defiant behavior, displaying disrespectful behavior towards staff and peers, and using excessive profanity. The detention order further states that appellant fled the custody of the transportation worker, while he was being transported back to juvenile hall. Appellant self-surrendered at juvenile hall on June 8, 2004.

On June 16, 2004, appellant was placed at the Northern California Boys to Men Group Home. The probation departments pre-permanency status review report, filed in July 2004, noted that appellant was making a satisfactory adjustment to the program, which included individual and group counseling, as well anger management classes. However, the program abruptly closed and appellant was placed in the U-Turn Group Home on September 8, 2004.

On November 16, 2004, appellants probation officer terminated his placement at the U-Turn Group Home due to appellants truancy from school. According to the detention order, appellant fled from the U-Turn Group Home before he could be transferred to juvenile hall. Appellant self-surrendered at juvenile hall on November 18, 2004.

2. Second Supplemental Petition

Appellant was placed in Marys Help group home on November 29, 2004. The probation departments permanency status review report, filed in January 2005, noted that appellant had made satisfactory progress at Marys Help and recommended that appellants placement be continued. However, on January 27, 2005, the probation department filed a second supplemental petition ( 777a), alleging that appellant violated the terms of his probation by leaving Marys Help without permission, and that his whereabouts were unknown. According to the probation departments offense summary report, appellant had become upset about an item missing from his room and destroyed a lamp and chair just before he ran away from Marys Help. Appellant was picked up by the Alameda County Sheriffs Department on February 3, 2005, after his mother informed the department of his whereabouts. Appellant admitted the violation and the juvenile court ordered another placement in a suitable foster home or group home.

3. Third Supplemental Petition and Initial Commitment to the CYA

In March 2005, the probation department recommended placement at Boys Republic, noting that appellant had not done well in small local placements [] and Boys Republic was a large well-structured behavior modification program located in Southern California that offer[ed] an on-site school. The juvenile court approved the placement on March 28, 2005. However, on March 30, 2005, the probation department filed a third supplemental petition ( 777a), alleging that appellant violated the terms of his probation by jumping out of a vehicle, on or about March 25, 2005, while he was being transported from Boys Republic to juvenile hall for a change in placement, and that appellants whereabouts were unknown.^[3]

Appellant was arrested by the Alameda County Sheriffs Department on April 16, 2005, on the basis of warrant issued by the juvenile court. On April 19, 2005, appellant admitted the probation violation and was detained at juvenile hall.

The dispositional hearing regarding the third supplemental petition ( 777a) was held on May 3, 2005. The juvenile court committed appellant to the CYA for the maximum term of three years four months. In so ruling the juvenile court rejected the contention that appellant deserved another chance, stating, Hes been to camp twice. Hes been to U-Turn, Northern California Boys to Men, Optimist, Marys Help, and Boys Republic. . . . I mean, its ridiculous. You give kids chance after chance after chance. Youre saying he deserves one more chance? Hes had about ten.

4. Rehearing and Mental Health Evaluation

On May 5, 2005, appellant filed an application for rehearing ( 252). Prior to ruling on the application, the juvenile court ordered appellant to undergo a mental health evaluation. The mental health evaluation report, which had been prepared by a psychology trainee of the guidance clinic, was filed on June 14, 2005, and recommended against CYA commitment (June 2005 report). The June 2005 report referenced a 2004 psychological evaluation,^[4]which determined that appellant fit the criteria of a seriously emotionally disturbed (SED) person. According to the prior psychological evaluation, appellant was a  depressed young man[,] whose depression appeared to be  pervasive and longstanding.  The June 2005 report stated that appellants depression was still evident [] and that he exhibited signs of intense anxiety related to repeated trauma. Appellants level of emotional disturbance was believed to significantly interfere with his ability to function in most environments. The June 2005 report recommended intense psychological treatment . . . .

The June 2005 report further stated that appellant was intellectually impaired and had severe learning and perceptual disorders. Prior intelligence testing revealed that appellant was borderline mentally retarded. A neurological evaluation was recommended to rule out the possibility of left hemispheric brain dysfunction. According to the June 2005 report, appellants intellectual impairment, together with his emotional disturbance, significantly impaired his ability to cope with emotionally arousing situations.

The June 2005 report concluded that appellants potential for violence was minimal, and that his delinquent behavior was attributable to mental and emotional disturbance. Appellants severe emotional and intellectual deficits [] contraindicated a CYA commitment. The June 2005 report recommended placement in a small, structured setting.

On June 22, 2005, the juvenile court set aside its previous CYA commitment order and ordered another placement.

5. Fourth Supplemental Petition

Appellant was placed at Aiming High Treatment Center (Aiming High) in San Bernardino County on July 27, 2005. On August 22, 2005, the probation department filed a fourth supplemental petition ( 777a), alleging that appellant violated the terms of his probation on August 18, 2005, by leaving Aiming High without permission and that his whereabouts were unknown. Appellant was arrested by the Alameda County Sheriffs Department on August 27, 2005, on the basis of a warrant issued by the juvenile court. Appellant admitted the violation, and the juvenile court ordered detention at juvenile hall pending another placement.

While appellant was detained at juvenile hall, a medication assessment was conducted by the guidance clinic on November 14, 2005. The staff psychiatrist who examined appellant opined that he suffered from moderate depression and recommended an antidepressant. In making this diagnosis, the psychiatrist noted that appellants risk of suicide was minimal and his homicidal potential was moderate.

In November and December 2005, a second court-ordered mental health evaluation was conducted. The report noted that appellant had been suicidal in 2003, following the death of his grandmother. The clinical psychologist who performed the evaluation assessed appellants intelligence and cognitive abilities. Appellants overall intelligence was in the range of borderline functioning. Appellant was also reported to have clinically significant deficits in the functional capacity known as executive functioning, which is a high-level cognitive function that involves creative and abstract thought. The December 2005 report opined that appellants problems in executive functioning would more likely be observable in unstructured rather than structured environments [] and [c]onsistent with this prediction, [appellant] ha[d] adjusted well to the structured environment of Juvenile Hall including the school environment.

6. Fifth Supplemental Petition and Second CYA Commitment

Appellant was placed at Upright Treatment Center (Upright) on January 18, 2006. On March 1, 2006, the probation department filed a fifth supplemental petition ( 777a), alleging that appellant violated the terms of his probation on February 21, 2006, by leaving Upright without permission and that his whereabouts were unknown. Appellant was arrested by the Alameda County Sheriffs Department on March 5, 2006, on the basis of a warrant issued by the juvenile court. Appellant admitted the violation and was detained at juvenile hall.

The probation departments dispositional report noted that appellants progress at Upright had been very unsatisfactory prior to AWOLing. According to the report, on one occasion when appellant was not allowed to use the telephone, he threatened Upright staff, stating,  Im going to smoke you if you dont let me use the phone.  The report further noted that appellant was under the influence of Ecstasy at the time of his arrest, that he struggled with police, and was charged with resisting arrest (Pen. Code,  148). The dispositional report stated that the probation officer had screened the case for possible CYA commitment, but formally recommended continuance of the existing dispositional order.

On May 18, 2006, the juvenile court ordered appellant to undergo a neuropsychological assessment. The assessment revealed that appellant demonstrated quantifiable and measurable improvement in his executive functioning. This improvement was partially attributed to antidepressant medication. According to the assessment, [a]t the time of the previous test administration, [appellant] was depressed and not taking any medication for his depression. At the present time, however, [appellant] has been maintained on the antidepressant Wellbutrin (100 mg) for at least the past three months. According to the [g]uidance [c]linical psychiatrist, [appellant] is doing well. 

The dispositional hearing was held on July 6, 2006. After hearing argument and considering the evidence, including the dispositional report and mental health evaluations, the juvenile court committed appellant to the CYA for a maximum term of confinement of 18 months. In so ruling, the juvenile court expressly determined that appellants mental and physical conditions and qualifications are such as to render it probable that he will benefit from the reformatory educational discipline or treatment provided by the [CYA]. ( 734.) After noting appellants IEP and educational records, the juvenile court determined that appellant was an individual with exceptional needs.

Appellant filed an application for rehearing, which the juvenile court denied on July 17, 2006. This timely appeal followed.

II.

DISCUSSION

Appellant contends that the juvenile court abused its discretion in committing him to the CYA because the record lacked evidence that he would benefit from a CYA commitment.

The juvenile court has broad discretion in determining the appropriate rehabilitative and punitive measures for offenders. ( 202; In re Asean D. (1993) 14 Cal.App.4th 467, 473; In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.) 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 Asean D., supra, 14 Cal.App.4th at p. 473; In re Michael D., supra, 188 Cal.App.3d at p. 1395.)

To determine whether substantial evidence supports a CYA commitment, we examine the record presented at the dispositional hearing in light of the purposes of the juvenile law. ( 202; In re Michael D., supra, 188 Cal.App.3d at p. 1395.) Since 1984, section 202 has required that courts commit delinquent minors in conformity with the interests of public safety and protection, [to] receive care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances. ( 202, subds. (b) & (e)(5); In re Lorenza M. (1989) 212 Cal.App.3d 49, 57; In re Michael D., supra, 188 Cal.App.3d at p. 1396.) Although the 1984 amendment places a greater emphasis on punishment and societal protection, rehabilitation remains a critical objective of juvenile law. (In re Teofilio A. (1989) 210 Cal.App.3d 571, 576; In re Michael D., supra, 188 Cal.App.3d at p. 1396.) To commit a minor to the CYA, the juvenile court must be fully satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefited by the reformatory educational discipline or other treatment provided by the [CYA]. ( 734.) Accordingly, the rehabilitative purposes of a CYA commitment are satisfied when there is 1) evidence in the record demonstrating probable benefit to the minor, and 2) evidence supporting a determination that less restrictive alternatives are ineffective or inappropriate. (In re Teofilio A., supra, 210 Cal.App.3d at p. 576; In re Michael D., supra, 188 Cal.App.3d at p. 1396.)

There is no rigid test for determining whether a commitment to the CYA would benefit a minor. (See, e.g., In re Martin L. (1986) 187 Cal.App.3d 534, 543-544.) Instead, the court must consider the individual circumstances in light of the potential reformative, educational, rehabilitative, treatment, and disciplinary benefits the CYA may provide to the minor. (See  202, 734; In re Gerardo B. (1989) 207 Cal.App.3d 1252, 1258-1259.) Factors include the minors age, the seriousness of the minors criminal conduct, the minors mental and physical needs, the minors prior record, the extent of the minors need for a controlled environment, the threat the minor poses to the community, and the efficacy of prior dispositions in rehabilitating the minor. (See  202, 734; In re Gerardo B., supra, 207 Cal.App.3d at pp. 1258-1259; In re Anthony M. (1981) 116 Cal.App.3d 491, 503-505; In re Jesse McM. (1980) 105 Cal.App.3d 187, 191-193.) In determining whether commitment to the CYA would be of benefit to the minor, the court may also consider punishment as a rehabilitative tool[;] however, a minor should not be committed to the CYA solely on retributive grounds. (In re Michael D., supra, 188 Cal.App.3d at p. 1396;  202, subd. (e)(5).) Rather, the juvenile court must focus on both the need for public protection and the best interests of the minor. ( 202; In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684.)

Here, appellant was nearly 18 years old when he was committed to the CYA. His criminal history included multiple automobile thefts, exhibiting a deadly weapon, grand theft of a person, and assault by means of force likely to produce bodily injury. Although appellants mental and emotional condition had been determined to be a cause of his delinquent behavior in the past, the June 2006 neuropsychological assessment revealed that appellant had demonstrated quantifiable and measurable improvement in his executive functioning. Additionally, according to the June 2006 assessment, the guidance clinical psychiatrist had reported that appellant was  doing well.  Despite the exemplary efforts by the probation department and juvenile court in locating appropriate placements for appellant, he repeatedly failed to reform while on probation. Additionally, his proclivity to fight with adult male staff at his initial placement at Camp Sweeney, his threat against the Upright staff, and his struggle with police officers while resisting arrest all involved potentially violent behavior, and his chronic elopement from lesser restrictive placements unquestionably demonstrates the need for a secure placement.

Noting that he has not committed a substantive offense since November 2003, appellant argues that the juvenile court erred in committing him to the CYA, where there are more criminally sophisticated offenders.^[5]While it is true that appellants offenses were not criminally sophisticated, they were not insignificant. In fact, appellants last offense in November 2003, in which he participated in a group beating of a victim, indicated that his offenses were becoming more violent. In any event, the nature of the offenses is but one factor for the juvenile court to consider in making its disposition. (In re Tyrone O. (1989) 209 Cal.App.3d 145, 152.) Nothing in the record suggests that the juvenile court improperly focused on appellants criminal history in committing him to the CYA.

Appellant further contends that there was no evidence that he posed a threat to public safety. However, as discussed, appellants threat to smoke the staff at Upright, his fight with the adult male staff at Camp Sweeney, and struggle with police while resisting arrest indicate that he was a potential danger to the community.

Appellant maintains that the CYA cannot meet his identified mental health and educational needs because recent reports indicate that the CYA has substandard facilities, personnel and programs. In support of this contention, appellant refers us to the consent degree and various reports emanating from Farrell v. Allen (Super. Ct. Alameda County, 2003, No. RG03079344), a taxpayer suit against the director of the CYA. However, the consent decree and reports were not before the juvenile court. Neither are they properly before this court. Appellant has not filed a request for judicial notice, or otherwise submitted the documents to this court. Rather, he refers us to Internet websites that contain links to the documents from which he quotes.

Nonetheless, the documents are familiar to this court. We note that they purport to document circumstances occurring at CYA significantly before the time when the commitment was made in this case. It has long been the general rule and understanding that an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration. (In re James V. (1979) 90 Cal.App.3d 300, 304[].) (In re Zeth S. (2003) 31 Cal.4th 396, 405.)

While detailing past inadequacies in some of the CYAs programs, the documents do not show that appellant will not benefit from any of the programs offered at the CYA. Even assuming that some of CYAs programs remain seriously deficient, the programs exist, wards participate in them, and some benefit from them. (See In re Tyrone O., supra, 209 Cal.App.3d at p. 153 [The trial court properly found that CYA, with its specialized institutions and rehabilitative programs tailored to the delinquents sophistication and need for security . . . , offered the promise of probable rehabilitative benefit to [the minor]].)

Appellant is not simply a nondelinquent or marginally delinquent child [citation] who presents primarily a placement problem [citation] . . . . (In re Tyrone O., supra, 209 Cal.App.3d at pp. 153-154.) In addition to being one who is difficult to place, appellant is deeply in need of help to overcome serious problems that have led to his repetitive and escalating delinquent behavior. This record makes abundantly clear that less restrictive programs have not worked for him. There is no evidence that the juvenile court improperly focused on punitive, rather than rehabilitative grounds for committing him to the CYA. Rather, the CYA offered the prospect of programs to address appellants needs in a more restrictive environment than had previously been attempted. The juvenile court did not abuse its discretion in concluding a CYA commitment would be of probable benefit to appellant.

III.

DISPOSITION

The judgment is affirmed.

_________________________

Ruvolo, P. J.

We concur:

_________________________

Reardon, J.

_________________________

Rivera, J.

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^[1] We note that effective July 1, 2005, the CYA was redesignated the Department of Corrections and Rehabilitation, Division of Juvenile Facilities. (Welf. & Inst. Code,  1710, subd. (a).) For convenience we will continue to refer to the juvenile justice division as the CYA.

^[2] All subsequent undesignated statutory references are to the Welfare and Institutions Code.

^[3] According to the record, appellant had been placed at Boys Republic for approximately two to five days. The record does not indicate the reason for the change in placement.

^[4] The 2004 psychological evaluation referred to in the June 2005 report is not included in the record on appeal.

^[5] Appellant directs our attention to inaccuracies contained in the probation departments 2006 dispositional report that he contends grossly exaggerated his criminal history and wrongly stated he had been involved in crimes of serious violence. We have examined the report, and to the extent it erroneously states that appellant committed violent acts of robbery, we note that this inaccuracy was brought to the juvenile courts attention at the dispositional hearing.