In re Alex G.

Filed 6/20/07 In re Alex G. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Alex G. appeals from a dispositional order committing him to the Department of Corrections and Rehabilitation, Juvenile Justice (DJJ).[1] He contends that the juvenile court abused its discretion in ordering a DJJ commitment and that the matter must be remanded to permit the court to exercise its discretion pursuant to section 731, subdivision (b) in setting the maximum term of confinement. We affirm.

I. Factual Background

On September 26, 2005, a supplemental section 602 petition was filed charging defendant with two counts of misdemeanor battery on an officer (Pen. Code,  243, subd. (b)) and one count of misdemeanor battery upon another ward (Pen. Code,  242). The first two charged counts involved an incident at the juvenile hall where defendant resisted and attacked officers who were attempting to take him to a safety cell. The other count stemmed from defendants fighting with another ward. The petition further indicated that defendant committed three prior felonies and one misdemeanor.

On October 7, 2005, defendant admitted the two misdemeanor batteries on peace officers; the remaining misdemeanor count was dismissed with a Harvey[2] waiver. On October 21, 2005, the court granted the probation departments request to place defendant at the DJJ on an emergency basis because his behavior at the juvenile hall was unmanageable, generating approximately 30 incident reports.

On November 18, 2005, defendant petitioned for reconsideration of the courts emergency housing order. The court ordered that defendant be assessed for consideration of placement at a community treatment facility (CTF). On December 12, 2005, Napa County Mental Health filed its assessment regarding defendants possible placement in a CTF. The assessment concluded that defendants history and current behavior fell below the threshold requiring this level of care. The court denied defendants request for a CTF placement.

On February 1, 2006, the court committed defendant to the DJJ for the maximum period of confinement of six years and eight months. The court granted defendant custody credits of 654 days.

II. Discussion

A. DJJ Commitment

The commitment of a minor to the DJJ is reviewed for abuse of discretion. (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.) 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. (Ibid.) The juvenile court has not abused its discretion if its decision is based upon substantial evidence in the record that the commitment will be of probable benefit to the minor and that less restrictive alternatives would be ineffective or inappropriate. (Id. at p. 1396; In re Teofilio A. (1989) 210 Cal.App.3d 571, 576.)

In 1984, the Legislature replaced provisions of section 202, emphasizing different priorities for the juvenile justice system. (Compare Stats. 1983, ch. 1135,  1, pp. 4306-4307 with Stats. 1984, ch. 756,  2, pp. 2726-2727.) Under the current statute, public safety and protection may play a role in ordering a commitment to the DJJ. ( 202, subd. (b); In re Michael D., supra, 188 Cal.App.3d at p. 1396.) In determining whether commitment 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 DJJ solely on retributive grounds. (In re Michael D., at p. 1396; see  202, subd. (b).)

Here, over the course of several months between defendants admission of two counts of the supplemental petition and his dispositional hearing, the probation department sought to address defendants mental health and behavioral issues. First, following several incidents while defendant was housed in juvenile hall, including an assault on a staff member and an assault on another minor and other misconduct generating about 30 incident reports, the probation department requested emergency housing for defendant in the DJJ pursuant to section 1752.15.[3] Second, defendant was evaluated for mental health services. The Napa County Health and Human Services Department determined that defendants mental health issues did not require intensive treatment in an acute care psychiatric hospital, and that he required placement in a locked facility in order to ensure that he followed through with mental health treatment. Third, the court determined that defendant was ineligible for placement at a CTF because his history and current behavior fell below the threshold requiring the level of care provided by CTFs. Finally, the probation officers report for the dispositional hearing indicated defendants failures at a group home placement and Boys Ranch, his poor adjustment to juvenile hall, and his subsequent poor behavior following his temporary housing at DJJ including assaults on other wards, openly masturbating and other disruptive behavior. The probation officer recommended a DJJ placement noting that defendant was in need of a more structured, disciplined environment to address his conduct.

The record thus fully supports the juvenile courts decision to commit defendant to DJJ. Defendant failed at less restrictive placements and his present conduct made him unsuitable for alternative placements. And, his increasingly serious delinquent behavior supported the courts finding of probable benefit. (In re Jose R. (1983) 148 Cal.App.3d 55, 61.) Defendant argues that there was no evidence that he would benefit from a DJJ commitment. It has long been recognized, however, that the [DJJ], with its specialized institutions and rehabilitative programs tailored to the delinquents sophistication and need for security [citation], offered the promise of probable rehabilitative benefit to [the defendant]. (In re Tyrone O. (1989) 209 Cal.App.3d 145, 153.) The court did not abuse its discretion in finding that defendant would benefit from the programs offered by the DJJ.

Defendant also argues that the court ignored the evidence of defendants mental health issues. To the contrary, it was clear from the testimony at the dispositional hearing that defendant did not exhibit the kind of mental health issues that require placement in an acute psychiatric facility or a CTF, but rather that his issues centered on anger management. The court had before it the report of the Napa County Mental Health Department that based its findings on the evaluation by Dr. Pojman who assessed defendants mental health. While Dr. Pojman indicated in his report that defendant was in need of a psychiatric consultation, he did not recommend intensive treatment at an acute care psychiatric hospital. Further, the record established that defendant was not eligible for a CTF placement. Finally, defendants behavioral problems prevented his placement at less restrictive alternatives.

Defendant also points to documents concerning systemic problems with DJJ. He did not present these documents to the trial court. 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.) Nonetheless, the documents, are well known to this court. While detailing inadequacies in some of the DJJs programs, they do not purport to demonstrate that defendant will not benefit from any of the programs offered at the DJJ. In sum, the court did not abuse its discretion in committing defendant to the DJJ.

B. Section 731

Effective January 1, 2004, section 731, subdivision (b) was amended to provide that [a] minor committed to the [DJJ] also may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court, which may not exceed the maximum period of adult confinement as determined pursuant to this section. In In re Sean W. (2005) 127 Cal.App.4th 1177, 1183 (rev. denied June 22, 2005), Division Two of the First Appellate District held that section 731 gives the juvenile court discretion to fix a maximum commitment time in the DJJ that is less than the adult statutory maximum considering the individual circumstances of the minor before it for disposition. (See also In re Carlos E. (2005) 127 Cal.App.4th 1529, 1542.)

Defendant argues that the court failed to exercise its discretion pursuant to section 731, subdivision (b) and that the matter should be remanded to permit the court to do so. The dispositional hearing in this case was held on February 1, 2006, over seven months after the decision in In re Sean W. became final. We must presume that the juvenile court was aware of the law and correctly applied it. (Evid. Code,  664; People v. Coddington (2000) 23 Cal.4th 529, 644, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)

III. Disposition

The order is affirmed.

________________________

RIVERA, J.

We concur:

___________________________

REARDON, Acting P. J.

___________________________

SEPULVEDA, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line Lawyers.

[1] The DJJ was formerly known as the California Youth Authority. (See Welf. & Inst. Code, 1710, subd. (a).)

All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[2]People v. Harvey (1979) 25 Cal.3d 754.

[3] Section 1752.15 provides that the DJJ may be used on a temporary basis when the continued presence of the minor in the county juvenile facilities poses a significant risk of violence or escape.