In re Daniel N.

Filed 7/19/07 In re Daniel N. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Daniel N. appeals a March 6, 2006, dispositional order, claiming lack of probable benefit in committing him to the Department of Corrections and Rehabilitions Division of Juvenile Facilities (DJF) (formerly CYA) (see Gov. Code,  12838, 12838.5; Welf. & Inst. Code,  1710). The commitment follows prior wardship and, here, a negotiated admission to one felony count of aggravated assault (Pen. Code,  245, subd. (a)(1)) charged in a new petition (Welf. & Inst. Code,  602).^[1] We find no abuse of discretion, and we affirm.

I. THE BACKGROUND

A. The Current Offense

Daniel was on juvenile probation in San Mateo County at the time of the current incident. The probation was for aggravated assault with a gang enhancement. On January 11, 2006, a probation violation petition was filed, alleging that Daniel had absconded from his mothers home on or about January 4, following a positive test for cocaine. A warrant had issued for his arrest.

The new petition arose out of an assault by Daniel and two companions on A.M., around 11:00 p.m. on January 12, 2006. A.M. was getting off a bus at Mission Street and Geneva Avenue, in San Francisco, when he saw the them standing at the corner. They approached as he passed, and Daniel asked,  Who do you claim? Are you Norteo? A.M. told Daniel, I dont claim anything, I just work, but they followed as A.M. tried to walk away. Daniel then said, Give me your fuckin money or Ill kick your ass! A.M. told him he did not have any money on him and kept on walking, but Daniel demanded, Give me your fuckin shoes then! Three of them cornered him and pushed him to the ground and started punching him in the face and kicking his face and back. A friend of A.M.s tried to help. A.M. ran, but his assailants ran after him. A.M. then spotted a patrol car and flagged it down. He pointed officers to a car where Daniel was trying to hide, and Daniel was found hiding under it, and was arrested. Officers saw the companions run off but were unable to apprehend them.

Daniel was charged in San Francisco with street gang participation (count 1; Pen. Code,  186.22, subd. (a)), attempted second degree robbery to further a criminal street gang (count 2; Pen. Code,  212.5, subd. (c), 664, 186.22, subd. (b)(1)(A) & (B)), assault with force likely to produce great bodily injury, also with the gang enhancement (count 3; Pen. Code,  245, subd. (a)(1)), 186.22, subd. (b)(1)(A)), and battery with intent to further a criminal street gang (count 4; Pen. Code,  186.22, subd. (d), 242). In a negotiated resolution, Daniel admitted the count 3 assault without the gang enhancement, had all other counts dismissed with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754) allowing their use for restitution only, and was advised exposure to an aggregate maximum confinement term (for this and other matters) of nine years. Learning that Daniel resided in Daly City, the court transferred the case for disposition, and San Mateo County accepted the transfer.

B. The Prior Juvenile History

The current incident occurred when Daniel was age 15 and seven months, but his wardship history had begun over two years earlier, when a San Mateo petition charged him with public intoxication and other offenses arising out of an October 2003 battery in a movie theater. The victim asked Daniel and his friends to keep quiet because they were noisy and talking loudly during the show. Daniel and his friends kept yelling Eastside. Then, as the victim was leaving, he was punched in the face by Daniel after one of the friends asked the victim if he had a problem. Police arrested Daniel, who was drunk, apparently on E&J Brandy and Bacardi 151. Daniel said he did it because the victim disrespected him. A misdemeanor battery charge was sustained, and a disposition in San Francisco resulted in his out-of-home placement at Walden House for six months, followed by continued wardship as placed in his mothers home. Probation was terminated in September 2004.

Daniel was next charged in January 2005, again for battering, but this time also robbing, a young male victim in San Francisco. A.P. reported that as he walked down Russia Street after 9:30 p.m. on January 12, carrying a briefcase, a boy he passed said, Give me $2.00. A.P. agreed to give it to him, but the boy said, No, give me all your money. When A.P. resisted, the boy whistled loudly, and three cohorts emerged from a van. Each took turns hitting A.P., who was also kicked twice in the legs. The boys took his CD player and $85.00 in cash before leaving. Two eyewitnesses, one of whom watched the assailants until police came, gave a similar account of Daniel and two others surrounding the victim, pushing him around, and rifling through his pockets and a backpack, before the victim yelled, Thats all the money I have, grabbed his backpack and ran off. Arriving officers arrested the three youths and found a large felt tipped marker on the ground plus fresh red graffiti of Norte and symbols believed to indicate the 31st Street gang. At the station, all three arrestees volunteered that they were members in the Norte 31st Street gang. When an officer commented that all three youths wore red, one said: Thats our color man. 31st Norteo; My name is Spider, 31st Street man. Daniel added, Yeah, 31st Norteo man, they call me Shorty. The victim was brought to the station and identified all three as his assailants.

The January 2005 charges, filed in San Francisco, resulted in Daniel admitting one count of aggravated assault, with a gang enhancement (Pen. Code,  245, subd. (a)(1), 186.22, subd. (b)(1)(A)), a dismissal of six related counts, and a maximum confinement term of eight years. After a transfer in to San Mateo County, Daniel was committed to a program at Camp Glenwood, which he entered in April of that year. His behavior there was satisfactory, and he completed a drug and alcohol program, other coursework, and a transition plan. He was released from the residential portion of the program in October and placed into the camps furlough program.

As noted above, on January 11, 2006, notice of probation violation was filed, alleging that Daniel tested positive for cocaine while in the furlough program and, rather than self-surrender as directed, absconded. But for that development and the new charges from the incident on January 12, Daniel would have had a termination hearing that month.

B. The Commitment to DJF

A report for the March 6, 2006, commitment hearing recommended commitment to DJF and gave augmenting social data. Daniels father had left the family early in his life, but his mother had for the last two years been living with a man she called her husband and who was the father of one of two half-siblings. Following the residential portion of Camp Glenwood, Daniel had initially achieved good attendance at Jefferson High School, but no passing grades, and then was suspended for a week in January 2006 for involvement in a fight. His behavior since release on furlough was poor, and he no longer attended school. He had been tested for, but denied, status as a special education student, but his mother felt that he should be retested.

The report quoted parts of a psychological evaluation done a year earlier by a clinical psychologist, Kristina Kurpinsky, Ph.D., before Daniels camp commitment. Kurpinsky had noted that Daniel had past success on probation but inevitably became caught up in negative peer influences. She found continued evidence of ADHD (Attention Deficit Hyperactivity Disorder) (a prior diagnosis by others) and noted Daniels inattentiveness, impulsiveness, and lack of focus or interest in work in an academic setting. She had felt it imperative that he have a medication evaluation to stabilize symptoms and noted a recent refusal to take psychiatric medication because it made him feel weird.  Kurpinsky felt that Daniel needed substance abuse treatment, therapy, and structured activities where he could socialize with peers in pro-social ways.

The hearing report concluded that Daniel had reverted back into the lifestyle and criminal involvement that had led to wardship. Apparently, [his] ability to obey laws and be a productive member of society at this time is questionable as the current offense was violent and callous and predatory in nature. The Minor is well aware of his current situation and offers no good explanation for his actions. His new offense was not only inexcusable, but contain[ed] all the elements of the criminal gang lifestyle. The offense involved great violence, bodily harm, and displayed a high degree of cruelty toward the victim, an attack on a vulnerable victim for no other reason than to participate with others and promote his Norteo street gang affiliation. Also, at the time of this offense, Daniel had a warrant out for his arrest and a prior sustained offense for assault with great bodily injury with gang enhancements. He showed an unwillingness to change and, more importantly, criminal behavior that seemed to be escalating. His presence in the community posed a serious threat to the welfare and safety of others. However, because this is a young man who is still impressionable, it is hope[d] that after fulfilling his obligation to the Court and society, he will remember the positive strokes he received when doing well and may long for a better life than the Norteo gang or the criminal justice system has to offer.

DJF, the report concluded, would hold [Daniel] accountable for his criminal behavior, address [his] anger/violence issues, address his chemical abuse problem, [and] provide him with the educational opportunities he needs to be successful. [DJF] will also provide [him] with an understanding of the impact his behavior has made on his family and victims. The seriousness of the current offense, coupled with [his] prior history, makes a commitment to [DJF] appropriate. The author later clarified that he was aware that no gang enhancement had been admitted in this case.

At the hearing, Daniel admitted the pending probation violation of absconding, and a behavior report from juvenile hall described Daniel as compliant, mature, respectful to staff and peers, participating in all programs, and not causing any major problems. Daniels counsel argued for a further program short of DJF, stating that Daniel was told that there was room for him in an 18-month program at Walden House for which he was eligible. Daniels mother stated (unsworn) that she felt he would do well in a program and that the program he was in [before] was not a long enough time. Counsel for the agency noted that, even after Camp Glenwood and Walden House, Daniel was attacking others: He attacked an innocent person on the street where that person is taken to the ground and punched and kicked in the face. Even when the victim attempts to leave[,] the minors companions chase after him. But for a police officer being in the area[,] who knows what kind of injuries the victim would have sustained. I think the minor is an extreme danger to the community.

The court chose DJF, commenting that Daniel had not done well on the outside. The court acknowledged a very good Hall report and that Daniel had apparently done okay while he was at Camp Glenwood, but noted that his performance at the camp and Walden House ha[d]nt changed his behavior once he gets out of a program. And here clearly the assault was unprovoked and unwarranted and vicious and appears to be gang related. The victim could have been very seriously hurt if not killed if this continued. Daniels mother interjected at that point that the victim had a companion who came up and stabbed [Daniel], but the court, having already noted that it was Daniels own behavior that precipitated it, reiterated that this victim could have gotten killed. The court found that Daniel has been given chances, and he poses a serious threat to the safety of others. It ordered DJF commitment, exercising its discretion to set a maximum confinement term of three years (less 297 days credit).

II. DISCUSSION

We review the commitment decision for abuse of discretion and indulge all reasonable inferences in favor of the decision. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396; In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.) Before 1984, the purpose of juvenile law was rehabilitation and treatment, not punishment. (In re Aline D. (1975) 14 Cal.3d 557, 567.) However, 1984 amendments to juvenile law instituted an increased emphasis on punishment as a tool of rehabilitation, as well as concern for safety of the public. (In re Asean D. (1993) 14 Cal.App.4th 467, 473;  202.) Still, [b]ecause commitment to [DJF] cannot be based solely on retribution grounds ( 202, subd. (e)(5)), there must continue to be evidence demonstrating (1) probable benefit to the minor and (2) that less restrictive alternatives are ineffective or inappropriate. (In re Michael D., supra, 188 Cal.App.3d at p. 1396; In re Angela M., supra, 111 Cal.App.4th at p. 1396;  734.) DJF commitment may be made without prior resort to less restrictive placements. (In re Eddie M. (2003) 31 Cal.4th 480, 507; In re Angela M., supra, at p. 1396.)

Faced with a record showing undiminished criminality after multiple less restrictive out-of-home alternatives were tried, Daniel resorts to an argument that no substantial evidence supports probable benefit from DJF. We disagree and find no abuse of discretion.

We reject, first, Daniels reliance on materials not presented below. He relies in part on a record augmentation that brings up the entire 10-page psychological evaluation by Kurpinski, a document that is from the San Francisco case files and presented at this San Mateo County hearing only insofar as a few paragraphs were quoted in the hearing report.  [A]n 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 Zeth S. (2003) 31 Cal.4th 396, 405, quoting In re James V. (1979) 90 Cal.App.3d 300, 304; In re Brittany H. (1988) 198 Cal.App.3d 533, 554). Thus, a party cannot challenge a lower courts ruling and then augment the record with information not presented to (or withheld from) the lower court. (People v. Brown (1993) 6 Cal.4th 322, 332.) Augmentation does not function to supplement the record with materials not before the trial court. [Citations.] (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3) We must also disregard statements of matters in the briefs that are not properly in the record. (Weller v. Chavarria (1965) 233 Cal.App.2d 234, 246.) Our allowance of the augmentation, of course, did not alter those principles. (Cf. Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1 [judicial notice].)

The same principles require us to ignore Daniels profuse citations to facts behind the record drawn from websites that he cites in an effort to discredit, across the board, DJFs programs and effectiveness. He cites litigation-related documents showing reports on some aspects of CYA (now DJF), an ensuing consent decree outlining remedial measures, a later progress assessment, and a general on-line description of how wards are assigned to programs once committed. Not one of these matters was presented below, where they could have been explored and debated, and they are accordingly beyond any consideration here.

Trying to circumvent that problem, Daniel argues that any juvenile court judge would have been aware of these publicly available materials, or if not, could not have intelligently exercised discretion without such knowledge. No apt authority is cited, however, to overcome the reason for ignoring matters not before a lower court, namely, that we leave factual matters to trial courts and, on appeal, decide purely legal questions. (In re Zeth S., supra, 31 Cal.4th at p. 405.) The matters on these websites surely do not establish as a matter of law that DJF has no rehabilitative value, or even that problems identified in the litigation remained the same as far as serving this particular wards needs. The place to raise these arguments was below, and our inquiry here is only whether substantial evidence in the record before the trial court supports probable benefit.

Nor could we consider facts on those websites through judicial notice. We may, when appropriate, take judicial notice of the existence of public documents or public acts, but not for the truth of matters stated in the material. (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063-1064; accord Starkman v. Mann Theatres Corp. (1991) 227 Cal.App.3d 1491, 1501, fn. 5.)

As for Daniels assertion that the court was presumably aware of those materials, we know of no such authority. We do presume, however, that the court knew and applied correct statutory and case law when it made its decision (People v. Coddington (2000) 23 Cal.4th 529, 644; Ross v. Superior Court (1977) 19 Cal.3d 899, 913-914), and Daniel fails to rebut that presumption. He relies on the courts remarks about public safety and the seriousness of this crime. He claims the comments show that the courts primary concern was punishment rather than his rehabilitative needs, but his undifferentiating use of the word punishment glosses over the distinction that, under settled current law, making a ward accountable through sanctions, specifically including commitment to DJF, is generally deemed to be rehabilitative. ( 202, subds. (b), (d)-(e).) The qualification is that retribution is not deemed rehabilitative punishment (id., subd. (e)(5)).

The court here did articulate concern for public safety, past failure to reform, and the need to be held accountable, but this does not show that the aim was retribution. The court was following a report that stressed Daniels unwillingness to change, yet expressed hope that a still impressionable Daniel would remember the positive strokes he received when doing well, long for a better life than the Norteo gang or the criminal justice system has to offer, and let him understand the impact his behavior has made on his family and victims. The record fails to rebut the presumption that the court properly weighed Daniels best interests and chose DJF for rehabilitation and not retribution. (Cf. In re Rick H. (1981) 30 Cal.3d 176, 183-184 [cannot assume, from silence, that a juvenile court failed to consider matters argued to it].)

Daniel faults references by the court and report to gang-related activity and its concommitant dangers, noting that he did not admit the gang enhancement on the assault count and that his Harvey waiver as to dismissed counts allowed factual use only for restitution. However, he seems to overlook that his prior crimes were gang related and, as to his current offense, that a court does not need a Harvey waiver to rely on facts that are transactionally related to an admitted offense. (People v. Cortez (1980) 103 Cal.App.3d 491, 496.) The gang aspects of his current offense are obviously transactionally related. The assault began with gang challenges:  Who do you claim? Are you Norteo? Then, when the victim denied any affiliation, Daniel and his companions kicked and punched him for no apparent reason short of gang motivation. The court implicitly and reasonably inferred as much.

Daniel faults the courts references to the seriousness of the offense and that the victim could have been killed, but those, too, were reasonable inferences from the facts. Daniel cites lack of evidence as to what injuries the victim sustained, but we do not see the court as focused on actual injury, just potential injury. The court said that the victim could have been very seriously hurt if not killed if this continued (italics added). This was a logical conclusion, since the attack was unprovoked, predatory and bluntly brutal, with three people kicking and punching a downed victim; the victim was then chased after he managed to rise and flee, with further attack seemingly averted only by the quick arrival of police. Daniel characterizes himself as one who does well in a program and, when outside, is more of a follower than a leader in his criminal behavior. If this is true, however, it is small comfort to his victims and no less of a risk to the public at large. If the record shows him apt to follow convention and rules while in a program, it also shows him apt to follow peers in acts of violence as soon as he is released. He is not a passive participant in those criminal acts.

Daniel criticizes the hearing report as providing mere generalized observations about DJFs services and, thus, as failing to give his case particularized consideration which underlies the entire juvenile court system. His quote is from In re Joe A. (1986) 183 Cal.App.3d 11, 29, which had to do with a jurisdictional finding of failure to reform ( 777), not a description of DJF services. In any event, we see no fatal deficiency. The report stated, albeit generally, that DJF would address Daniels anger-violence issues, address his chemical abuse problem, give him the educational opportunities he needs to be successful, and give him insight into the impact that his behavior had on his family and victims. As for Daniels concern that the court had no guarantee that any particular program would be available, we presume that the court was aware of this safeguard: The [DJF] shall accept a person committed to it . . . if it believes that the person can be materially benefited by its reformatory and educational discipline, and if it has adequate facilities, staff, and programs to provide that care. A person . . . shall not be transported to any facility under the jurisdiction of the [DJF] until the director thereof has notified the committing court of the place to which that person is to be transported and the time at which he or she can be received. ( 736, subd. (a).)

Finally, Daniel laments exposure to a pervasive gang culture and a risk that he will tragically become more criminalized as a result of a DJF commitment. He tries to show this from website material not properly before us, but also cites concern along those lines expressed in case law of which the trial court was presumably aware. Such concern is over the  commingling of unsophisticated, mildly delinquent minors with the more criminally oriented groups of delinquents committed to [CYA], thereby converting them to trained and sophisticated criminals. [Citation.] (In re Teofilio A. (1989) 210 Cal.App.3d 571, 577.) In that case, however, CYA had been ordered for a ward with no criminal record, no aggressive or assaultive conduct, and no threatening of anyonehe had made a single drug sale. (Id. at p. 578.) The case before us is a far cry.

No abuse of discretion is shown in the commitment to DJF.

III. CONCLUSION

The judgment is affirmed.

_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

_________________________

Haerle, J.

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^[1] All unspecified section references are to the Welfare and Institutions Code.