In re Mario W.

Filed 8/24/07 In re Mario W. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Mario W. appeals a dispositional order of the Contra Costa County Juvenile Court, entered after he was established as a ward of that court pursuant to Welfare and Institutions Code section 602.^[1] He claims the court abused its discretion when it committed him to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ). We find no abuse of discretion and affirm.

Background

The prosecution initiated this delinquency proceeding in September 2002, when appellant was 14 years of age. ( 602, subd. (a); see  650, subd. (c).) The petition charged appellant with felony grand theft from the person of another. (Pen. Code,  487, subd. (c).). Appellant was placed in his mothers home with Juvenile Electronic Monitoring (JEM), pending the jurisdictional hearing. This arrangement was terminated in October 2002 after appellant left home supervision without permission. After a brief detention in the countys juvenile hall, he returned to home supervision later that month.

With his jurisdictional hearing pending, appellant continued his criminal activity. Thus, the prosecution filed a first amended petition in December 2002, adding a misdemeanor battery charge. (Pen. Code,  243.2, subd. (a).) A second amended petition, filed in February 2003, added a felony charge of possession of marijuana for sale. (Health & Saf. Code,  11359.)

The juvenile court, later in February 2003, established appellant as a ward after he pleaded no contest to the felony theft charge and no contest to a reduced misdemeanor charge of marijuana possession. (Health & Saf. Code,  11357, subd. (c).) The court dismissed the battery charge. The court placed appellant on probation, once again under the at-home JEM program.

Appellant committed a second home supervision violation in March 2003, cutting off his ankle monitor and disappearing. The court issued a bench warrant for his arrest. In early April 2003, appellant turned himself in and was returned to detention at juvenile hall pending a dispositional hearing.

The probation office (PO) prepared a report for the dispositional hearing noting an extensive prior history of criminal violations and delinquency proceedings. He was first placed on informal probation in 1997when he was nine years of agefollowing his strong arm robbery of another minor. He completed this probation successfully after six months. Formal delinquency proceedings were instituted in 2000 after appellant committed petty theft. The juvenile court placed him on probation in June of that year. After failing home supervision, he was placed on probation in a group home, the Family Life Center in Sonoma County. He failed this placement in January 2002 after engaging in a physical altercation with a peer and otherwise demonstrating threatening, aggressive behavior. The homes termination report suggested he might benefit from psychotropic medication, but his mother refused consent for such medication. The court then committed appellant to the Orin Allen Youth Rehabilitation Facility (OAYRF), a county ranch home. Appellant was removed from the OAYRF twice for aggressive, noncompliant behavior, and was eventually paroled to the countys Transition Center Program. After being expelled from this program for poor behavior, appellant was detained at juvenile hall until August 2002, when the court terminated the delinquency proceeding after he completed his term of confinement. This termination occurred one month before the initiation of this proceeding.

After a dispositional hearing held in late April 2003, the court directed that appellant be placed on probation in an approved home. At the end of May 2003 the PO placed appellant in the Aarons Boys Home, in San Luis Obispo County. Less than one month later, appellant left the home without permission in the company of several other youths, and broke into a trailer. San Luis Obispo County prosecutors filed a section 602 petition charging appellant with two counts of felony burglary. These charges were dismissed at the jurisdictional hearing after appellant admitted reduced charges of misdemeanor trespass and escape. Appellant was returned to detention at the Contra Costa County Juvenile Hall, and the matter was transferred to that countys juvenile court for disposition.

In August 2003 the court again placed appellant on probation, this time in New Horizons, a group home in Napa County. Appellant left this home without permission some two weeks later and the court issued a second bench warrant. While absent without leave from New Horizons, appellant allegedly participated in an automobile burglary in Napa County, although it appears that county never pursued the charge. Appellant was eventually arrested in Sacramento County in November 2003 for an alleged theft-related offense. There was no prosecution of this charge as well. Sacramento authorities returned appellant to the Contra Costa County Juvenile Hall for disposition on his violation of probation.

In December 2003, the court in this proceeding returned appellant to probation in a third group home placementQuality Group Homes in Fresno County. He left that home without permission in April 2004, and the court issued a third bench warrant. A PO report completed the following month noted appellant had accumulated numerous misconduct reports at the Quality Group Homes before leaving that facility, based on his defiant behavior, frequent use of profanity, fighting, and challenging peers and staff members.

Appellant telephoned his probation officer in August 2004, stating that he wanted to turn himself in on the outstanding warrant, but he failed to appear at the court hearing scheduled for this purpose. He telephoned the officer again in January 2005, stating that he was now living with a cousin in Berkeley. He refused to disclose the name and address of that relative.

Appellant remained absent without leave for some 16 months, until August 2005, when Pinole police officers arrested him in connection with a robbery. In a supplemental petition filed two days later, the prosecution charged appellant with one felony count of attempted second degree robbery (Pen. Code,  211, 212.5, subd. (c), 664), one felony count of second degree robbery (Pen. Code,  211, 212.5, subd. (c)), and two misdemeanor counts of unlawful use of a stolen access card (Pen. Code,  484g). Pursuant to a no contest plea, the court, in September 2005, sustained the count for attempted second degree robbery and one of the misdemeanor counts, and dismissed the remaining counts. In October 2005, the court once again placed appellant on probation and directed placement in a group home facility. Two months later the PO delivered appellant to his fourth group home placementBar-O-Boys Ranch in Del Norte County (Ranch).

The Ranch sent appellant to the Del Norte County Juvenile Hall in early January 2006 after he assaulted another ward and threatened staff. After returning briefly to the Ranch, he left without permission. The Ranch terminated his placement because he ran away, and also because he continued his threatening and noncompliant behavior. Shortly afterward the court issued a fourth bench warrant for his arrest.

Appellant was soon apprehended and returned to the Contra Costa County Juvenile Hall. In late January 2006, the court sustained an allegation of probation violation. After a dispositional hearing the following month, the court, for the fifth time, placed appellant on probation and directed placement in a group home. This timebecause appellant had declared himself to be gay in his previous placementthe PO arranged a placement in the Gay and Lesbian Adolescent Social Services (GLASS) group home in Alameda County. Appellant left this home without permission in March 2006, and the juvenile court issued its fifth bench warrant. At the end of that month, police arrested appellant in Sacramento County, and the prosecution there filed a section 602 petition alleging two counts of robbery, with enhancements for use of a B-B gun. (Pen. Code,  211.)

In June 2006, the Sacramento County Juvenile Court sustained one of the robbery counts and dismissed the other, together with the enhancements. Authorities then transferred appellant to the Contra Costa County Juvenile Hall pending disposition. The following month, the PO completed its dispositional report. This report described the robbery in Sacramento. Armed with a B-B gun, appellant had threatened to shoot an elderly woman unless she surrendered her purse. He grabbed the purse and pushed her to the ground with enough force to injure her hands and knees. When interviewed at juvenile hall, appellant denied the victims version of events, stating he had been at the scene with another male, known to him only as Rodney, and Rodney had committed the robbery. The report also summarized appellants prior historymuch as we have done above. In an analysis of appellants case, the report noted that his crimes were becoming increasingly violent, yet he continually refused to take responsibility for his crimes. He had denied responsibility for his most recent robbery offense, despite positive identification by the victim and two witnesses. He had furthermore failed five probationary placements, and was likely to run away if placed in another unlocked facility.

Additionally, the report noted that an intake consultant for the California Youth Authority (now the DJJ) had reviewed appellants case and had indicated that he was appropriate for a DJJ commitment, particularly given the seriousness of his most recent robbery offense. (See  707, subds. (b)(3) & (c).) The PO report stated that appellant was unsuitable for further placement in a group home, based on his adult status (he had become 18 years of age in June 2006), his increasingly violent crimes and behavior, his failure to reform despite five probationary placements, and the likelihood he would run away from any unlocked facility. The OAYRF had indicated it would not accept appellant a second time, because his needs exceeded the treatment that the facility could provide and, since the OAYRF was an unlocked facility, appellant, with his history of aggressive offenses, would pose a safety risk to the public. The report stated that the DJJ could provide appellant with counseling and educational programs . . . in a secure therapeutic setting, as well as a program of supervision . . . when he returns to the community. The report concluded by recommending that the court commit appellant to the DJJ.

At the conclusion of the dispositional hearing held September 19, 2006, the juvenile court followed the recommendation of the PO and committed appellant to the DJJ for a maximum term of six years four months, with custody credits for 547 days. The court imposed a restitution fine of $100 and a victim restitution fine of $792.36 for the victim of the Sacramento robbery, her husband, and the Sacramento Metropolitan Fire District for the emergency medical treatment it had provided to the victim. In making its ruling, the court stated that appellants mental and physical condition and qualification are such as to render it probable that [he] will be benefited by the reformatory educational discipline or other treatment provided by the DJJ. This appeal followed. ( 800, subd. (a).)

Discussion

Appellant contends the juvenile court abused its discretion in committing him to the DJJ. He relies primarily on Welfare and Institutions Code section 734, which provides that a juvenile court may not commit a ward to the DJJ unless the judge of the court is 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 [DJJ]. Appellant argues that he made a showing that he has specialized needs with respect to education and mental health, yet there was no substantial evidence showing it was probable he would benefit from the educational programs and mental health treatment provided by the DJJ. Appellant also claims he is an openly gay individual, and argues there was no evidence indicating he would be safe in a DJJ facility controlled by gang culture. The PO report, in his view, made only conclusionary statements that the DJJ would meet his needs, and the juvenile court was unaware of the true conditions that exist at DJJ. Appellant further adverts to evidence he presented, to the effect that the director of the GLASS group home was willing to have appellant placed there a second time, as long as the home and the PO could obtain from the licensing agency a waiver of the age limit for group home placement. He claims the juvenile court abused its discretion in that it ignored the availability of this less restrictive placement, which can better meet his special needs. This is particularly so, in appellants view, given the probation officers testimony that appellants behavior had improved during his most recent period of detention at juvenile hall.

The juvenile courts decision to commit a minor to the DJJ will be reversed only when an abuse of discretion is shown. (In re George M. (1993) 14 Cal.App.4th 376, 379 (George M.).) When findings are challenged, we examine the record to determine whether they are supported by substantial evidence, indulging all reasonable inferences to support the lower courts decision. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1330.) We do not consider evidence not admitted at the dispositional hearing, such as the reports of conditions at DJJ facilities that appellant has set out in his opening brief.

It is true that before the juvenile court may make a disposition of commitment to the DJJ there must be evidence demonstrating that there is a probable benefit to the minor from [the] commitment . . . and that less restrictive alternatives would be ineffective or inappropriate. (George M., supra 14 Cal.App.4th at p. 379.) Yet, the juvenile court must consider not only the best interests of the wardas provided in section 734but also the safety and protection of the public, as well as the goal of holding the ward accountable for his or her behavior. (See  202, subds. (a) & (b); In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684 (Jimmy P.).) Thus, the factors to be considered include the wards age, the circumstances and gravity of the offense, and the wards previous delinquent history. ( 725.5.) When deciding whether commitment to the DJJ is an appropriate level of physical confinement, it is especially important for the court to consider the wards past behavior and performance while a ward. (Jimmy P., supra, 50 Cal.App.4th at pp. 1684-1685; see  726, subd. (c).)

The juvenile court stated that appellant continued to deny responsibility for his offenses, and that it found credible the statements to the contrary made by the robbery victim and witnesses. It noted appellants offenses were becoming increasingly violent and occurred invariably after he ran away from placements over, and over, and over again. The court further noted appellants prior delinquency historybeginning at the age of nine years old and continuing to the present. The court found appellant, while a ward, had consistently failed all previous, less restrictive placements. The court concluded that appellants pattern of behavior was not likely to change until he began to take responsibility for his offenses, and that he accordingly posed too great a risk to public safety for another group home placement, despite the fact that the GLASS group home was willing to accept him.

The PO report submitted into evidence shows appellant has failed home supervision and five successive group home placements. It shows he has been a ward in this proceeding for four years, and has now reached an age that precludes his placement in a group home absent an age-limit waiver. It shows he has spent a considerable portion of this four-year period absent without leave, and during each period of absence has admittedly or allegedly committed increasingly serious offenses, which have culminated in a robbery in which he threatened and injured the victim and brandished a weapon. Under the statutory scheme these are all appropriate factors to consider in determining the appropriateness of a DJJ commitment. Given the persistent pattern of appellants past conduct while a ward, it was not unreasonable for the court to conclude that placements less restrictive than the DJJ were ineffective and inappropriate, even if there was evidence that a placement at the GLASS group home was available, and even if appellants trial counsel elicited testimony of recent improvements in his behavior while physically confined at juvenile hall.

The courts statements indicate it did not ignore, but duly considered, the evidence that appellant was gay and needed mental health treatment, and that it nevertheless concluded his commitment to the DJJ was appropriate. We are not persuaded that appellants sexual orientation necessarily precludes a DJJ commitment that is appropriate in all other respects. Nor do we think the juvenile court improperly concluded that appellant would receive adequate mental health treatment at the DJJ. The probation officer testified he had informed the DJJ intake counselor that appellant was taking psychotropic medication and the consultant had indicated to him that the DJJ would assess appellants mental health needs once he arrived and would provide appropriate treatment. There was no evidence that the DJJ cannot provide mental health treatment to appellants benefit, beyond a statement elicited from the probation officer that he had heard of some controversy regarding the DJJ mental health program. Should the DJJ not provide appellant with treatment consistent with section 734, he is not without a remedy, but may on that ground request a hearing to set aside or modify the order of commitment. ( 779.)

With regard to appellants educational needs, we note that appellants trial counsel elicited from the probation officer an admission that, given his age and paucity of high school credits, appellant would likely be unable to obtain a high school diploma or its equivalent during his DJJ commitment. Nevertheless, there was evidence that appellant would be able to earn high school credits until he reached the age of 19 years old, and it is reasonable to infer he would benefit to that extent. While the DJJ must formulate a graduation plan for wards such as appellant, it is not required to ensure that such wards obtain a diploma or equivalency certificate before they are paroled or released from the DJJ. (See  1120.1, subds. (b) & (c).) In any event, the PO report indicates that appellant told his probation officer that he [did] not want to earn a high school diploma or its equivalent, but wanted to pursue a career in modeling or acting. We observe further that the DJJ has a statutory duty to focus its educational programs on value-based character education, emphasizing [a] curriculum leading to a crime-free lifestyle. ( 1120.1, subd. (a).) Given the evidence of appellants history of criminal activity, it is reasonable to infer that value-based character education is decidedly to his benefit.

We conclude the juvenile court acted well within its discretion when it committed appellant to the DJJ, and also find substantial evidence to support that courts finding made in accordance with section 734, that it was probable appellant would benefit from the DJJs reformatory educational discipline or other treatment.

Disposition

The judgment is affirmed.

______________________

Marchiano, P.J.

We concur:

______________________

Stein, J.

______________________

Swager, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

^[1]Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.