In re Jessica O.

Filed 8/28/07 In re Jessica O. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Jessica O. appeals from the juvenile courts dispositional order committing her to the California Youth Authority.[1] She challenges the commitment order on various grounds, including the absence of evidence of probable benefit to her and the consideration of improper factors. The minor also challenges the courts refusal to order a diagnostic assessment.

We find no abuse of discretion, either in the juvenile courts decision to commit the minor to the California Youth Authority, or in its refusal to order a diagnostic evaluation. We therefore affirm the dispositional order.

DISCUSSION

At the outset, to establish the proper framework for our review, we summarize the governing statutory scheme. Against that framework, we describe the procedural history of this case. We then analyze the specific issues raised by the minor here.

Statutory Background

Juvenile delinquency proceedings are governed by the Welfare and Institutions Code, starting with section 602. (Further unspecified statutory references are to that code.)

Among the statutes express purposes are the protection and safety of the public and each minor under the jurisdiction of the juvenile court. ( 202.) Thus, a fundamental premise of delinquency adjudication is concern for both the best interests of the minor and public protection. (In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684.)

As a general rule, juvenile delinquency proceedings are bifurcated, commencing with a jurisdictional phase and concluding with a disposition order. (In re Eddie M. (2003) 31 Cal.4th 480, 487.)

Jurisdiction; Section 602

Section 602 extends juvenile court jurisdiction to persons who are under 18 years of age when they violate any law defining crime. (In re Eddie M., supra, 31 Cal.4th at p. 486.) A section 602 proceeding begins when the prosecutor files a petition stating the nature of the alleged offenses. (Id. at p. 487.) At the jurisdictional phase, the juvenile court decides whether the petition concerns a person described in section 602. (Ibid.)

Once there has been a judicial determination that the minor committed penal offenses, section 602 applies and the juvenile court has dispositional jurisdiction over the juvenile offender. (In re Eddie M., supra, 31 Cal.4th at p. 486.) At that point, the court is required to hear evidence on the question of the proper disposition to be made of the minor. ( 706.)

Disposition; Section 706

In determining the appropriate disposition for a delinquent minor, the overriding concerns are public protection and the minors best interests. (In re Eddie M., supra, 31 Cal.4th at p. 488; In re Jimmy P., supra, 50 Cal.App.4th at p. 1684.) Minors under juvenile court jurisdiction as a consequence of delinquent conduct shall, in conformity with the interests of public safety and protection, 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. This guidance may include punishment that is consistent with the rehabilitative objectives of the statute. ( 202, subd. (b).)

At the disposition hearing, the court is required to receive in evidence the social study of the minor made by the probation officer. ( 706.) The court also must receive any other relevant and material evidence that may be offered including that proffered by the child, parent, or guardian. ( 706; Cal. Rules of Court, rule 5.785 (b).)

In order to effectuate the policies of the juvenile law, the court should consider the broadest range of information in determining how best to rehabilitate a minor and afford him adequate care. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329, quoting In re Jimmy P., supra, 50 Cal.App.4th at p. 1684.) By statute, specific factors affecting disposition include (1) the age of the minor, (2) the circumstances and gravity of the offense committed by the minor, and (3) the minors previous delinquent history. ( 725.5.) In addition, the court may order that the probation officer obtain the services of such psychiatrists, psychologists, physicians and surgeons, dentists, optometrists, audiologists, or other clinical experts as may be required to assist in determining the appropriate treatment of the minor. ( 741; see In re L. L. (1974) 39 Cal.App.3d 205, 215.) Furthermore, as appropriate, the court may continue the hearing and order a 90-day observation and diagnosis of the minor at the California Youth Authority. ( 704.)

Thejuvenile court has various dispositional alternatives, including supervised or unsupervised probation. (In re Kazuo G. (1994) 22 Cal.App.4th 1, 8.) Persons placed on juvenile probation for a criminal offense adjudicated under section 602 may, or may not, also be made wards of the court. A wardship declaration is required if a section 602 criminal probationer is removed from the physical custody of a parent or guardian. (In re Eddie M., supra, 31 Cal.4th at p. 488.) For section 602 wards, an additional alternative to probation is commitment to a county home, ranch, or camp. (Ibid.) The range of alternatives is limited only by the resourcefulness and creativity of defense counsel and the probation department. (In re Devin J. (1984) 155 Cal.App.3d 1096, 1100, fn. omitted.)

In contrast to unsupervised probation, the other end of the dispositional spectrum is commitment to the California Youth Authority (now called the Division of Juvenile Justice or DJJ), which represents the most restrictive placement available to the juvenile court. (In re Eddie M., supra, 31 Cal.4th at p. 488.) If the court determines that such a commitment is appropriate, it 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 Youth Authority. ( 734; see, e.g., In re Eddie M., supra, 31 Cal.4th at p. 488.)

Length of Confinement; Sections 726 and 731

The term of a wards confinement is circumscribed by the corresponding adult sentence for the offense that brought or continued the minor under the jurisdiction of the juvenile court. ( 726, subd. (c).) A minor thus may not be held in physical confinement for longer than the maximum term of imprisonment for an adult convicted of the same crime. (Ibid.) The statute thus seeks to prevent any unconstitutional disparity between the maximum confinements of juveniles and adults for the same offenses. (In re Eddie M., supra, 31 Cal.4th at p. 488.) Furthermore, a juvenile probation violation cannot increase the maximum period of confinement for the crime previously adjudicated under section 602. (Id. at p. 506, italics omitted.) Subject to the foregoing limits, the juvenile court has discretion to set a minors maximum term of confinement at the California Youth Authority. ( 731, subd. (b).)

Modification; Section 777

Juvenile court orders may be modified as the judge deems meet and proper. ( 775.) The juvenile court judge thus has discretion to modify dispositional orders that have not succeeded in rehabilitating the affected minors. (See 777-779; In re Eddie M., supra, 31 Cal.4th at p. 489.)

Under section 777, a probation officer may petition the court for a change in the wards disposition. (Cf. 778 [modification on request of parent, child, or other interested person]; 779 [modification on courts own motion].) Section 777 has long allowed the juvenile court to modify disposition by ordering a more restrictive placement for a person previously found to have committed a criminal offense under section 602. (In re Eddie M., supra, 31 Cal.4th at p. 489.) Among other things, the statute may be used to address a minors probation violations. Section 777 thus recognizes executive discretion to seek a dispositional change for a criminal juvenile probationer who violates probation, regardless of the actual criminal nature of the violation alleged. (In re Eddie M., supra, 31 Cal.4th at pp. 486.)

Generally speaking, juvenile courts follow section 777 procedures by: (1) hearing evidence as to the efficacy of the prior disposition, (2) considering independently on the whole record whether the prior dispositional order had entirely failed, and (3) determining if a more restrictive level of confinement was necessary to the minors rehabilitation. (In re Jorge Q. (1997) 54 Cal.App.4th 223, 236.) After hearing evidence, the court must reassess the disposition in light of the then prevailing circumstances. (Id. at p. 233.)

Factual and Procedural Background

With that framework in mind, we describe the factual and procedural history of this case.

2004 Offenses and Court Orders

On December 1, 2004, the Santa Cruz County District Attorneys office filed a section 602 petition against Jessica O. (the minor). Following arraignment the next day, the juvenile court ordered the minor detained at juvenile hall.

The petition arose from an incident in which the minor and another girl attacked a fellow student on the grounds of Santa Cruz High School. The minor stabbed the victim three times with a knife. The petition charged her with one felony count of assault with a deadly weapon. (Pen. Code, 245, subd. (a)(1).) The petition also contained the special allegation that the minor had personally inflicted great bodily injury on the victim. (Pen. Code, 12022.7, subd. (a).)

At the time of the offense, the minor was 13 years old and a dependent child. (See  300 et seq.) Because of her dependency status, the court ordered a joint protocol report. (See 241.1.) That report was submitted in late December 2004 by the Santa Cruz County Human Resources Agency, on behalf of the Department of Family and Childrens Services and the Juvenile Probation Department. The report described the involvement of the minors family in the dependency system, saying: The family has a long CPS history, dating back to 1990, including two prior dependencies in Santa Clara County (08/92-10/93 and 07/97-7/99) and two in Santa Cruz County (08/00-03/03 and 04/04-present). The Agency investigated at least ten referrals, involving Jessica and her two older sisters, alleging physical abuse, general neglect, emotional abuse and sexual abuse. The Agency substantiated three of the allegations including the one of sexual abuse . The report included this assessment: Jessica has been the victim of much abuse in her life and has now begun to victimize others. The report also noted two prior referrals, the first when the minor was 12 years old, for possession of marijuana on school grounds, and another the following year, for battery on her older half-sister Sonia. The report closed with the joint recommendation of the two affected departments childrens services and juvenile probation that the minor would be best served by proceeding under section 602.

On December 29, 2004, the minor admitted both the offense and the special allegation asserted in the petition. At the disposition hearing held the following month, the juvenile court declared the minor a ward of the court. The minor was detained at juvenile hall pending a suitable 24-hour placement. She was ordered not to leave placement without permission of the Probation Officer.

2005 Offenses, Probation Violations, and Court Orders

On January 24, 2005, the minor was placed at the Above the Line group home, but she absconded the same day. The District Attorneys office filed a petition under section 777, alleging the minors flight as a probation violation.

The minor remained at large until mid-February, when she was arrested after taking an acquaintances vehicle without permission. Two days later, an amended petition was filed under sections 602 and 777. The section 602 allegations charged the minor with felony vehicle theft. (Pen. Code, 10851, subd. (a).) The section 777 allegations reasserted the minors violation of probation for leaving her placement.

On February 24, 2005, the minor admitted the allegations of the combined 602/ 777 petition. In preparation for the disposition hearing, the probation department filed a supplemental report, describing the most recent incident and expressing concern about the seriousness of the minors original offense and the fact that she reoffended so soon after her January 2005 disposition hearing. The report recommended that she be continued as a ward of the court for 24 hour placement with the hope of local placement to ensure family participation in her program, and case plan goals.

On March 10, 2005, the court conducted a disposition hearing. The minute order states: Escalation of behavior indicates more restrictive placement. Placement at ranch camp was ordered. By formal order entered two weeks later, the minors placement was identified as the Muriel Wright Ranch Camp in Santa Clara County.

In July 2005, the minor absconded from her placement at the ranch camp. A petition was filed under section 777 alleging a probation violation, and a bench warrant was issued.

In August 2005, the minor was arrested on charges of shoplifting, public intoxication, presenting false identification, and resisting arrest. An amended petition was filed under sections 602 and 777, charging the minor with four misdemeanor counts corresponding to the arrest charges. The petition also asserted that the minor violated probation, by running away from her placement and by breaking the law.

In September 2005, the minor admitted counts 1, 3, and 4 of the petition; count 2, for public intoxication, was dismissed. The court found that the minor had violated probation as a result of leaving her placement and failing to obey all laws. The minor was ordered back to ranch camp.

In early October 2005, the minor was terminated from her placement at the Muriel Wright Ranch Camp due to her negative attitude and refusal to comply with the program rules and expectations. The minors placement termination prompted another section 777 petition. In a memorandum to the juvenile court, the probation department made the highly unusual recommendation that the minor then just 14 years old be given a lengthy court commitment at juvenile hall.

In mid-October 2005, the minor admitted a probation violation based on her termination from ranch camp. She remained at juvenile hall. At a hearing held the following month, she was ordered to serve 180 days there.

In a November 2005 order, the court called for a progress report in 60 days. Juvenile hall staff submitted a report in January 2006. The most consistent observation of Jessicas behavior, that report noted, is her inability to accept responsibility for her actions. The probation department also submitted a report at about the same time. It stated that the minor had incurred 11 incident reports, most of them for not responding to redirection from staff and/or her escalation of a situation. According to the probation report, she did not avail herself of support and options offered by staff, and she remained on the lowest behavioral level, level one. There were some positive developments though, including participation in community service, requests for unit work, completion of an anger management course, and school attendance. The probation report closed by saying: Both the minors progress as well as the readiness of her family will be considered at the completion of her Court commitment to determine the most suitable placement for her.

2006 Offenses, Probation Violations, and Court Orders

In March 2006, a petition for modification was filed under section 777, which stated that the minor had completed her time at juvenile hall and was eligible for release. The petition further asserted: Her behavior in juvenile hall has ranged from poor to moderate. Though she has been in the hall for almost six months she has not made it past level 1 due to consistent behavioral issues, generally related to not following staff directives or continuing to escalate situations. The petition requested that the minor be continued as a ward of the court in the home of her older half-sister Sonia, who was her legal guardian, with electronic monitoring for 30 days.

The court granted the petition, releasing the minor to her sisters home with electronic monitoring and family preservation services. The minor was placed on electronic monitoring on April 1, 2006.

On April 9, 2006, the probation department was notified that the minor had cut off the ankle monitor and left the home of her guardian. Her whereabouts were unknown. A bench warrant issued.

On April 26, 2006, the minor was arrested for presenting false identification and for possession of drug paraphernalia. A combined 602/777 petition was filed, alleging two misdemeanor offenses from the arrest plus a probation violation for removing her electronic monitor and absconding.

Following a hearing on April 27th, the minor was detained in juvenile hall. Upon her return from court that day, the minor attacked a juvenile hall staff person, pushing her against a door jamb and causing minor injuries. An amended petition was filed in May 2006, which added a third misdemeanor count for battery on the staff person.

In May 2006, the minor admitted counts 1 and 3 of the 602 petition; count 2, for possession of drug paraphernalia, was dismissed. The minor also admitted a probation violation as alleged in the 777 petition. The court advised the minor: Your maximum sentence now is 11 years, ten months. That means you can be locked up that long in the California Youth Authority. The matter was continued to the following month for disposition.

June 2006 Probation Reports

In an extensive report prepared in June 2006 for the disposition hearing, the probation department observed that the minor has been unable to demonstrate to probation and the Court that she can follow through on her commitments and agreements, namely remaining law abiding and not acting out violently toward others. Without evidence that the minor can comply with simple directives and expectations in a highly structured setting such as juvenile hall, accompanied with her escalating behavior and drug use there are no local placements that would be appropriate for her. The reports author was moved by the family history of the minor as well as her sisters who have tried to support the minor, each other, and themselves against challenging odds. Nevertheless, the report stated, it is not beneficial to excuse or minimize her escalated behavior based on these factors. In that same vein, the report stated: Probation has considered the minors sad history and although it is clearly a contributing factor to her current behavior, the minor has been offered chances to change her behavior, work with people who have grown to love and care for her and yet she remains resistant to that support. Probation feels that if not placed in a long term, secure program, the minor will continue to be a risk to herself and others due to her anger, impulsivity, lack of empathy and remorse as well as her escalating drug use. The report recommended placement at Excelsior Youth Center in Aurora, Colorado, if the minor was accepted into the program there following a scheduled interview.

Shortly after that report was prepared, the minor was the subject of two incident reports from juvenile hall that evidenced her intent to abscond from the proposed placement in Colorado. According to the first report, dated June 26, 2006, the minor had written a letter containing information about running from placement when she gets there. According to the second report, made the next day, the minor also received a letter from a cousin in Arizona, encouraging her to leave the Colorado placement and offering contact information, bus fare, a place to live, and help with employment in Arizona.

The probation department submitted an updated report, in which it addressed the minors apparent plan to abscond from the Colorado program if placed there. That report states: After the letters came to light, probation questioned if the recommendation for 24-hour placement at Excelsior was still appropriate. After considering that question, the probation department concluded that the minor should still be offered the chance to take advantage of the services and treatment Excelsior has to offer. Moreover, both the admissions director and the chief psychologist at Excelsior stated that they recognize the flight risk that the minor poses and understand her reluctance to participate in their program. Even so, they still wanted an opportunity to work with the minor. Furthermore, they had a semi-secure unit where the minor could be housed at least until she can make a commitment to the program or become acclimated. It was not a locked facility, however. The probation department advised the court that it would seek approval for an out-of-state placement recommendation from the countys multi-disciplinary team on Thursday, July 6th. Accordingly, the probation department asked that disposition be continued at least until July 7th.

July 2006 Disposition Hearing

The court conducted the continued disposition hearing on July 7, 2006. At the outset of the hearing, the probation department informed the court that the multi-disciplinary team had approved the proposed placement at Excelsior Youth Center in Aurora, Colorado, and that probation was still recommending that placement despite the flight risk.

The prosecutor took issue with the probation departments recommendation and stated that the minor should go to CYA. She offered three main arguments: that the minor did not take the court seriously; that the minor had shown no interest in rehabilitation; and that sending the minor out of state to a program that shes not going [to] stay in is very expensive.

The minors counsel argued in favor of the recommended placement in Colorado. He described the minors family history and noted an observation in the probation departments report suggesting that she might suffer from reactive detachment disorder. Addressing the possibility of Youth Authority commitment, the minors counsel mentioned the various reports that had come out of litigation challenging conditions at the CYA.[2] He also pointed out that Youth Authority officials were actually going to cease providing a facility for the girls and were going to find a private placement facility. He suggested that a CYA commitment would be even more expensive than the Colorado program. On the question of probable benefit to the minor, he observed that this type of program in Colorado could provide the minor with assistance for her anger management, substance abuse, and family issues. The minors stepfather then spoke briefly, and the minor did so as well.

Following the parties presentations, the juvenile court judge addressed the minor, saying youre one of the toughest cases Ive ever had to deal with. One of the toughest decisions Ive ever had to make. The judge acknowledged: I know your life has not been easy. Youve been influenced by all the bad things that have happened to you in your life. And had you had a better family life, you probably wouldnt be here. But you also have made some bad decisions and youve been given every opportunity to turn it around. Among those opportunities, the judge mentioned family counseling through the dependency system, continuation school with smaller classes, placement at a group home after her 2004 knife attack on a fellow student, placement at a ranch camp, and commitment to juvenile hall instead of CYA. The judge continued: And I talked to you last week, and Im real clear with you. This is your last opportunity. Youve got to convince the program to take you. You have to convince me that its a good idea. And what do you do? You write this letter saying, Yeah, Im going to run as soon as I get there. Ive got this plan. Im going to run. [] Its not just talk because youve done it before. The judge then stated I have no faith that youll stay in any program unless youre forced to stay there. He concluded: The least restrictive program placement for you is CYA. The only chance you have is to be forced to stay someplace and forced to go through some sort of counseling. [] Im not impressed with CYA. Im not looking at that as a program. Im well aware of all the problems that are there but youve left me with no choice. [] I do find that you theres probability youll benefit from that program. Thats the only one we have left. [] It is the least restrictive program.

The court thus committed the minor to the California Youth Authority/Division of Juvenile Justice for a maximum period of six years. The minors counsel then asked the court to consider ordering a 90-day observation period at CYA. The court instead ordered the probation department to submit monthly progress reports and to visit the minor every 60 days.

This timely appeal followed. ( 800.)

Issues on Appeal

Asserting that the juvenile court abused its discretion, the minor makes two principal assignments of error. First, the minor contends that the juvenile court erred in committing her to CYA/DJJ, arguing (a) that the court did not seriously consider less restrictive alternatives, (b) that there was no evidence of probable benefit to her from the commitment, and (c) that the commitment order rests on improper factors, including financial considerations and retributive motives. Second, the minor challenges the courts refusal to order a diagnostic evaluation.

Respondent disputes both contentions. It thus argues that the court did not abuse its discretion in making the dispositional choice, and it also defends the courts refusal to order a diagnostic assessment.

Analysis

We address the issues in turn. As to each, we review the juvenile courts decision for an abuse of discretion. (See, e.g., In re Robert H., supra, 96 Cal.App.4th at pp. 1329-1330 [dispositional order]; In re Norman H. (1976) 64 Cal.App.3d 997, 1003-1004 [diagnostic assessment].) We do not consider evidence of any events or developments that took place after the challenged decisions, which were made in July 2006. (See, e.g., In re Zeth S. (2003)31 Cal.4th 396, 405, 413.)

1. Commitment to the California Youth Authority

In reviewing the dispositional order, we indulge all reasonable inferences in favor of the juvenile courts decision. (In re Robert H., supra, 96 Cal.App.4th at p. 1330.) We examine the evidence presented at the disposition hearing in light of the purposes of the Juvenile Court Law. (In re Michael R. (1977) 73 Cal.App.3d 327, 333.) But as an appellate court, we do not determine what we believe would be the most appropriate placement for a minor. This is the duty of the trial court, whose determination we reverse only if it has acted beyond the scope of reason. (In re Khamphouy S. (1993) 12 Cal.App.4th 1130, 1135.)

a. Consideration of Less Restrictive Alternatives

In her challenge to the commitment order, the minor first contends that the juvenile court failed to seriously consider[] a less restrictive alternative placement for her. Reviewing the record with proper deference to the juvenile court, we reject that contention.

Before making a CYA commitment, a juvenile court need not expressly discuss and reject each possible alternative placement. (In re Ricky H. (1981) 30 Cal.3d 176, 184; In re John H. (1978) 21 Cal.3d 18, 24-25; In re Jose R. (1983) 148 Cal.App.3d 55, 59.) Even on a silent record, a reviewing court cannot assume that the superior court judge, who presided over the dispositional hearing and heard appellants counsels arguments, gave them no consideration or completely failed to evaluate appellants suitability for the Youth Authority. (In re Ricky H., at pp. 183-184.)

And in this case, the record is not silent. The juvenile court judge here plainly gave the Colorado program serious consideration, as evidenced by his statement to the minor that he needed to be convinced that placing her there was a good idea given her history of flight from prior placements. Escape from a less secure facility is a valid consideration in choosing a minors placement. (In re Ricky H., supra, 30 Cal.3d at p. 184; In re Jose R., supra, 148 Cal.App.3d at p. 61.) Nor does the judges statement that CYA commitment was the only remaining dispositional choice indicate a failure to consider other alternatives. Taken in context, that statement merely reflects the judges view that no alternatives were suitable for this minor. (See In re Samuel B. (1986) 184 Cal.App.3d 1100, 1104.) If two programs are found appropriate and one is found unavailable for whatever reasons, the court should not be hindered in view of the situation before it from choosing the perhaps less desirable program. (In re Gerardo B. (1989) 207 Cal.App.3d 1252, 1258.)

In sum, it is clear that other alternative placement options were explored and considered. (In re Samuel B., supra, 184 Cal.App.3d at p. 1104.) We therefore reject the minors contrary assertion here.

b. Benefit to the Minor

As both parties agree, the juvenile court must find that CYA would likely benefit the ward . (In re Eddie M., supra, 31 Cal.4th at p. 488; see 734.)[3]

Here, the minor argues, the record contains no evidence of probable benefit. She cites the deplorable conditions at CYA as revealed in the Farrell litigation in arguing that there simply was no available evidence of probable benefit. She also asserts that the information about possible closure of DJJ facilities for girls reinforced the argument that DJJ was not well equipped to handle female offenders or serve their reformatory needs . In the minors view, given the multitude of problems at the institution, it would be difficult in almost any case to find a probable benefit of sending a juvenile to the Youth Authority. And in her particular case, the minor asserts, this absence of probable benefit was amplified when contrasted with the highly structured program in Colorado that had more than adequate staffing and programs to address her rehabilitative goals.

Respondent disagrees. It cites long-standing judicial recognition that the California Youth Authority has many programs designed to benefit wards by addressing their psychological, emotional, and educational needs. (See, e.g., In re Tyrone O. (1989) 209 Cal.App.3d 145, 153 [CYA, with its specialized institutions and rehabilitative programs tailored to the delinquents sophistication and need for security offered the promise of probable rehabilitative benefit].) As our high court has stated: The Youth Authority Act is intended to benefit the public by providing youthful offenders with rehabilitative programs such as education, vocational training, work furloughs, and supervised parole. (People v. Pride (1992) 3 Cal.4th 195, 256.) Moreover, respondent observes: The rehabilitative value in a CYA commitment lies not only in the programs offered, but in the punishment inherent in such a commitment. (See 202, 734.) Examined through that prism, respondent contends, the record provides an adequate basis for the courts dispositional choice of a CYA commitment.

We agree with respondents view of the evidence. Contrary to appellants contention, we believe the record in this case supports a determination of probable benefit and discloses that the court was fully satisfied that the commitment would be of probable benefit to the minor. (In re Jose R., supra, 148 Cal.App.3d at p. 59, quoting  734.)

In reaching that conclusion, we are cognizant of the dismal conditions at CYA/DJJ. Sadly, that institution has been troubled for decades, as reflected in this statement from a 1978 case: The statutory scheme contemplates a Youth Authority very different from todays reality. The Youth Authority was initially established to benefit youngsters of tender years who would benefit from the educational, rehabilitative, and other helpful efforts. In fact, todays Youth Authority is reserved for the most severely delinquent youths [citation], many of whom reach the Youth Authority through the criminal courts rather than through the juvenile courts. The legislative ideal of rehabilitation has never been a reality, and it is far less so today than yesteryear. (In re Gregory S. (1978) 85 Cal.App.3d 206, 214, conc. opn. of Reynoso, J.)

Now, of course, the situation is even more grim, a fact starkly reflected in the institutions March 2006 Safety and Welfare Plan. As that plan recognizes, the current system is broken. Among the cited problems are these: An adult corrections mentality with an adult/juvenile mix; Frequent lockdowns to manage violence with subsequent program reductions; Hours on end when many youths have nothing to do; Vocational classrooms that are idle or running at half speed; and Abysmal achievement despite enormous outlays for education. The plan thus observes: Everything needs to be fixed. It also recognizes: Even the best of systems cannot save everyone. Currently, DJJ is saving almost no one. In the same vein, the plan states: Not many youth have the chance of leaving Californias juvenile correctional facilities with their lives turned around and no doubt some leave worse than when they arrived. The document incorporates recommendations for moving forward and implementing the sweeping reform needed. Among other things, as relevant here, the plan calls for hiring consultants to assist with gender specific programs for girls, and soliciting interest by local providers to move girls from the Ventura facility to local facilities and programs operated by others. In discussing the goal of improving outcomes for youth, the document states: DJJ is to be commended for identifying the components and approaches needed to provide high quality screening, evaluation, treatment, and transition services for the youth committed to its care. While the plan thus offers reason for some optimism about the institutions future, it leaves little doubt that present conditions there are bleak.

Despite the current limitations on treatment available to wards in DJJ facilities, the record in this case nevertheless supports a determination of probable benefit to the minor. For one thing, it appears that the minor will likely be well-served by curtailment of her ability to abscond from placement. (In re James H. (1985) 165 Cal.App.3d 911, 923 [minor who was prone to escape, abuse drugs and alcohol, and had other behavior problems needed a closed setting]; In re Abdul Y. (1982) 130 Cal.App.3d 847, 869 [where first-time offender had a history of aggressive behavior, incarceration in a lockup facility was necessary to promote rehabilitation and protect society]; In re Clarence B. (1974) 37 Cal.App.3d 676, 683 [given the minors prior placement failures and his delinquent history, the court quite properly concluded that [he] would benefit by the CYA]; cf., In re Michael R., supra, 73 Cal.App.3d at p. 335 [CYA commitment for first-time offender was an abuse of discretion where minor had neither been tried nor failed in any alternative dispositions].) A more secure confinement will allow the minor to participate in whatever programs are available and will help prevent her recidivism.

On this record, we conclude, the juvenile court did not abuse its discretion in finding probable benefit to the minor from commitment at CYA.

c. Factors in the Courts Decision

In her final set of challenges to the commitment order, the minor contends that the juvenile court relied on improper factors in making its dispositional choice. She asserts that the court acted retributively. She further asserts that the court was influenced by inappropriate financial considerations and that its decision exhibits a misunderstanding of both the facts and the law. We reject all of the minors assertions.

First, concerning retribution, we agree with the minors general observation that juvenile proceedings remain primarily rehabilitative, and punishment in the form of retribution is disallowed. (See In re Eddie M., supra, 31 Cal.4th at p. 507; 202, subds. (b), (e).) The term retribution, as it is used in section 202, is not defined by the statute. It is reasonably clear, however, that a condition which is imposed simply as revenge for the juveniles offense, would be invalid under the statute. (In re Josh W. (1997) 55 Cal.App.4th 1, 8.) Whatever the precise statutory meaning of retribution, however, we do not agree with the minor that the court based its dispositional choice in this case on impermissible retributive considerations.

The minor unpersuasively ascribes a retributive motive to the court because it relied on her placement failures and on the seriousness of her initial offense. Both are appropriate considerations, however. As to the first, placement history is a proper factor in making a dispositional choice. (In re Clarence B., supra, 37 Cal.App.3d at p. 683.) The court thus may take into account any previous escape from a less secure facility and the concomitant need for a locked facility. (In re Jose R., supra, 148 Cal.App.3d at p. 61.) The fact that the juvenile court considered these placement issues here does not suggest that it acted with a retributive motive. As to the second cited factor, the nature of the minors offense, it too is relevant. We acknowledge that a serious offense is not a ground, in and of itself, for Youth Authority commitment [citation], but the gravity of the offense is always a consideration with other factors. (In re Samuel B., supra, 184 Cal.App.3d at pp. 1103-1104; see 725.5.) In this case, the record clearly indicates that the Youth Authority commitment was predicated on factors other than a desire to punish appellant because of the seriousness of the offenses. (In re Samuel B., at p. 1104.) In a similar vein, we find no support in the record for the minors contention that the court failed to consider the set of circumstances which triggered [her] most recent probation violation and placement failure. To the contrary, those circumstances are set forth in some detail in the June 2006 probation report, which was read and considered by the Court. In sum, neither the courts consideration of the minors placement failures nor its references to her offenses and probation violations suggests a retributive motive.

Next, we consider the minors assertion that impermissible economic factors entered into the courts dispositional choice. The statutory scheme contemplates that the court will consider relevant and material evidence at the dispositional hearing. ( 706.) For purposes of our analysis here, we shall assume that the relative cost of a given placement is not an appropriate consideration in determining disposition. We shall also assume that the argument is not forfeited for failure to raise it below. (Cf., In re S. S. (1995) 37 Cal.App.4th 543, 548.) Even aided by those assumptions, however, the minors argument must fall. On this record, we find no evidence that the court considered the economic impact of its decision. As respondent points out, although costs were mentioned during argument at the dispositional hearing, there is no indication that the court relied on that as a factor in the disposition. The court said nothing about the cost of commitment at all, much less the cost of Excelsior versus the cost of DJJ .

Faced with the courts silence on the subject of costs, we necessarily reject the minors claim of error. (See In re Robert H., supra, 96 Cal.App.4th at p. 1330 [all reasonable inferences are indulged to affirm the juvenile courts dispositional choice].) In the absence of any indication to the contrary we presume, as we must, that a judicial duty is regularly performed. (People v. Visciotti (1992) 2 Cal.4th 1, 49.)

Lastly, we address the minors final attack on the commitment order, which rests on her assertion that the juvenile court misapprehended both the evidence and the governing law in this case. More specifically, the minor contends that the court improperly viewed family services provided during dependency proceedings as opportunities that she disregarded.

The contention lacks merit. It is true that the court briefly mentioned the familys failure to participate in counseling offered through the dependency system. But most of the courts comments on the subject of lost opportunities concerned later choices by the minor, where she flouted chances for rehabilitation once in the delinquency system. The court thus focused the bulk of its discussion on such events as the minors flight from various placements and her chance for a less restrictive commitment in 2005 (juvenile hall instead of CYA). Read in context, the courts statements reflect its objective of holding the minor accountable for her own conduct while a ward, conduct that includes assaults, vehicle theft, drug abuse, and flight from court-ordered placements. As the court told the minor: You have to take responsibility for what youve done. Holding minors accountable for their behavior is a proper objective of disposition. ( 202, subd. (b); cf., In re S. S., supra, 37 Cal.App.4th at p. 550 [restitution order was a proper means of holding minor accountable].) The court acted properly in doing so here.

To sum up, we reject all of the minors claims concerning the juvenile courts dispositional decision. We thus conclude that the court did not abuse its discretion in committing her to CYA/DJJ.

2. Refusal to Order Diagnostic Evaluation

The minor also asserts that the juvenile court erred in denying her request for a 90-day diagnostic evaluation at CYA. (See 704.)[4] That request was made near the end of the July 2006 dispositional hearing, after the court had announced its decision to order placement at the Youth Authority. On appeal, the minor argues that her delinquent conduct on its own amply demonstrates a need for a diagnostic examination, particularly in terms of her inept, self-sabotaging means of coping with anger.

In deciding whether to order a diagnostic assessment, the juvenile court first must assess whether it has sufficient information about the minor, thereby obviating the need for further study. (Cf., In re Norman H., supra, 64 Cal.App.3d at p. 1004 [where a psychologist and a medical doctor had previously examined the minor, the court had sufficient information to render a CYA diagnostic assessment unnecessary].) The controlling factor then is whether the court believed such a study would be in the best interest of the minor. (Ibid.)

Here, the juvenile court had amassed a substantial body of information about the minor, starting with the December 2004 report, prepared pursuant to section 241.1, which included a summary of the minors history as a dependent child. The court indicated that it had reviewed that history.

There were numerous reports from the probation department, including an initial 16-page report prepared in January 2005, plus a seven-page supplemental report prepared in March 2005. Thereafter, the probation department prepared a 15-page supplemental report in June 2006, just before the disposition hearing, updated with a four-page memorandum after the minors plan to escape from the proposed Colorado placement came to light. In June 2006, the probation department also prepared and submitted a 12-page case plan for the minor. Apart from these documents, the probation department also provided periodic memoranda to the court via inter-office correspondence sent in February 2005, August 2005, October 2005, January 2006, and April 2006.

The court also had other information before it, such as juvenile hall incident reports and summaries. It had letters from the minor and family members. And it had two brief evaluations from professionals, one a drug assessment prepared in January 2005 and the other a memorandum from a childrens mental health worker at juvenile hall prepared in January 2006.

In this case, the juvenile court apparently did not feel any further study was necessary or in the best interest of the minor. (In re Norman H., supra, 64 Cal.App.3d at p. 1004.)

In assessing the courts implicit determination, we indulge all reasonable inferences to support its decision. (In re Khamphouy S., supra, 12 Cal.App.4th at p. 1135.) Applying that deferential standard, we find enough evidence in the record to support the courts belief that further study was unnecessary and that it would not serve the minors best interest.

The courts decision is further bolstered by a colloquy that took place near the end of the disposition hearing. Having made the request for a diagnostic evaluation under section 704, the minors counsel added: There are also other ways of course to recall the sentence based on performance at CYA. The court responded by saying that it would order probation to maintain contact with the minor. It ordered monthly memos to the Court as well as visits every 60 days. The court explained that it wanted updates to the Court as to her progress, her placement, what programs are being offered to her and her participation in all of that. Addressing the minor directly, the judge said: So that gives me an opportunity, Jessica, at some point to recall you if youre not given the programs at CYA theyre supposed to give you. Ill take a look at that. The judge stressed that he wanted to be sure the State follows through with what theyre supposed to do as well.

Given the extensive information before the juvenile court concerning the minor, and in light of its extra precautions for monitoring the minors well-being and progress at the Youth Authority, we cannot agree that the courts refusal to order a formal diagnostic evaluation is an abuse of discretion. We therefore reject the minors challenge to that decision.

Summary of Conclusions

(1) The juvenile court did not abuse its discretion in selecting CYA/DJJ commitment as its dispositional choice for the minor. The court considered alternative placements and relied on appropriate considerations, and the record contains substantial evidence that the minor will probably benefit from the commitment.

(2) The record contains sufficient evidence to support the courts belief that a formal diagnostic assessment at the Youth Authority was unnecessary.

DISPOSITION

We affirm the July 2006 order committing the minor to the California Youth Authority.

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McAdams, J.

WE CONCUR:

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Bamattre-Manoukian, Acting P.J.

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Duffy, J.

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[1] In 2005, the California Youth Authority was subsumed within the restructured Department of Corrections and Rehabilitation and renamed. (See Gov. Code, 12838, 12838.5.) Commencing July 1, 2005, any reference to the Department of the Youth Authority in this or any other code refers to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities. (Welf. & Inst. Code, 1710, subd. (a); see also, id., 1703, subd.(c); Pen. Code, 6001; cf., Cal. Rules of Court, rule 5.805, which refers to the renamed institution as the Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ).) In this case, we use the terms Division of Juvenile Facilities, Division of Juvenile Justice, and DJJ interchangeably with California Youth Authority, Youth Authority, and CYA.

[2] The referenced litigation is Farrell v. Hickman (Alameda County Case No. RGO3079344). Pursuant to a consent decree in that case, the CYA/DJJ agreed to adopt and implement a series of remedial plans. Among them is the Safety and Welfare Plan Implementing Reform in California, dated March 31, 2006. At the minors request, we have taken judicial notice of the Safety and Welfare Plan. (See Evid. Code, 452, subd. (c); Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1749-1750 [court may take judicial notice of the records and files of a state administrative board].)

[3] Section 734 provides: No ward of the juvenile court shall be committed to the Youth Authority 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 Youth Authority.

[4] In pertinent part, section 704 provides as follows: If the court has determined that a minor is a person described by Section 602, and such minor is otherwise eligible for commitment to the Youth Authority, the court, if it concludes that a disposition of the case in the best interest of the minor requires such observation and diagnosis as can be made at a diagnostic and treatment center of the Youth Authority, may continue the hearing and order that such minor be placed temporarily in such a center for a period not to exceed 90 days, with the further provision in such order that the Director of the Youth Authority report to the court its diagnosis and recommendations concerning the minor within the 90-day period. ( 704, subd. (a).)