In re Moses M.

Filed 10/30/07 In re Moses M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Moses M. is in the custody of the Division of Juvenile Facilities (DJF)^[1]for an aggregate term of 18 months (see Welf. & Inst. Code,  602, subd. (a)), which the juvenile court imposed on him for a current offense of misdemeanor battery (Pen. Code, 242, 243, subd. (a)), aggravated by prior sustained offenses of misdemeanor battery, attempted first degree burglary, second degree burglary, robbery, vandalism, and trespassing (see Welf. & Inst. Code,  726). The court also found that Moses M. had violated his probation (see id.,  777). He appeals from the commitment order (id.,  800, subd. (a)), claiming that it amounts to an abuse of discretion. We disagree and will affirm the order.

FACTUAL BACKGROUND

Moses M.s involvement with Californias juvenile system began no later than age nine and a half, when he was removed from his home under the dependency laws because of his mothers substance abuse, mental health problems, physical abuse, and neglect, and his fathers sexual abuse of him and inability to care for him. He spent a year in a shelter facility and then was placed in a group home. Shortly after age 10 he was arrested and adjudged to have committed second degree robbery, vehicle theft, and resisting a peace officer in the performance of the officers duties. When he was 12 years old, he returned to his mothers home. He remained in the dependency system until age 14, when the juvenile court committed him to a juvenile ranch program under the delinquency laws for committing the prior offenses described in the previous paragraph.

Various evaluations revealed aspects of Moses M.s mental health problems. His intelligence was only slightly below average, but he suffered from a learning disability and was placed in an individualized education program. Although he did well at one private school, he did poorly in mainstream academic settings. He was often rebellious.

Still a dependent of the juvenile court, Moses M. was placed on informal supervised probation on December 5, 2002, following allegations that he had committed battery and resisted arrest. He failed to comply with his probation conditions and committed new offenses, including the misconduct that figured in aggravation in the commitment order under review here. Jurisdiction was transferred to the delinquency court, and he was sent to a ranch program. He successfully completed the program but was returned to the ranch three times for violating probation after completing the program.

In March of 2005, Moses M. was adjudged to have possessed hashish for sale and also to have resisted arrest. He successfully completed a term of commitment in juvenile hall and a period on an electronic monitoring program, but then he drove while intoxicated, unlawfully left the scene of an accident, interfered with a peace officers performance of the officers duties, and committed false imprisonment. He was sent to the Alternative Placement Academy but absconded from it. Thereafter he was arrested on allegations of possessing a controlled substance, being under the influence of a controlled substance, providing false information to a peace officer, and unlawfully removing his electronic monitor.

In August of 2005 a forensic psychological evaluation concluded that Moses M. suffered from attention deficithyperactivity disorder, abuse of multiple substances, a disruptive-behavior disorder, and depression. Moses M. was unhappy and would create problems to sabotage himself. He needed structure, psychotherapy, drug and alcoholism treatment, and possibly psychotropic medication. He was uncooperative in utilizing programs that might allow him to avoid a DJF commitment. It was decided to place him at his uncles home in Soledad, California. On December 14, 2005, the juvenile court ordered him committed to juvenile hall but with release to his uncles home once the uncle was ready to take him.

On or about April 23, 2006, Moses M. left his uncles home to visit his mother in San Jose without informing his probation officer. On April 27, 2006, in San Jose, Moses M. committed his current offense: he ran up behind a 58-year-old woman, pushed her to the ground, and kicked her. She suffered minor injuries to her fingers, wrist, face, and chest. Witnesses told the police that Moses M. was extremely drunk, which responding police officers confirmed. Moses M. admitted to the probation officer that he was drunk on the day the attack occurred but denied knowing he attacked the victim; he stated that he did not recall the incident. He explained that he had gone to San Jose to visit his mother during spring break and lacked a return ride to his placement at his uncles home.

Notwithstanding Moses M.s exculpatory statement to his probation officer, on May 16, 2006, Moses M. formally admitted to the juvenile court that he had committed a battery and violated his probation.

The probation report written for the contested disposition hearing recommended committing Moses M. to DJF. The report described Moses M.s probation performance as poor. He has been the recipient of various rehabilitation programs . . . , including[] Informal Supervision, house arrest, Juvenile Hall, the Juvenile Rehabilitation Facilities [i.e., the ranch program], the Alternative Placement Academy, CYA Alternatives Screening, and out of county placement with relatives. [H]e has failed to successfully complete any of them, with the exception of the Juvenile Rehabilitation Facilities Program. He has demonstrated he can conduct himself accordingly in a highly structured environment, such as Juvenile Hall, or the ranch[;] however, he has not learned the skills or acquired the tools necessary to demonstrate the same compliance with even a moderate level of freedom.

Moses M.s probation officer testified at the disposition hearing that Moses M. was on medication because of his mental health impairments. He also suffered from drug and alcohol abuse problems; approximately his last five petitions involved the use of drugs or alcohol. He did not qualify for DJF alternative programs; moreover, he had a history of absconding from noncustodial programs.

Bob ONeil, an intake consultant and the community in-court liaison with DJF, testified on the states behalf. He was formerly a CYA employee responsible for determining whether a minor met the criteria for admission into the CYA. He stated that DJF programs were in flux, in progress and that program elements . . . are either undergoing revision or just beginning implementation. Overall, DJF was undergoing major reform in the delivery of services. DJF had striven to reduce violence and violence in the DJF system had diminished. DJF had rehabilitative services for Moses M. if he would take advantage of them. On cross-examination, ONeil acknowledged that needed reforms were unfinished and there were waiting lists to enter one rehabilitative program. Nevertheless, the institution to which ONeil believed Moses M. would be sent, DeWitt-Nelson, had in place services relevant to at least some of Moses M.s needs. ONeil specifically mentioned DeWitt-Nelsons drug and alcohol treatment program.

Moses M. presented evidence that he had been housed at the county jail (i.e., in an adult facility) pending the dispositional hearing and was doing well in a substance abuse program there. He would prefer to be sent back to jail as a commitment placement. A witness and his counsel also suggested placement at the Salvation Armys six-month residential treatment program. During the parties deliberations on disposition, however, Moses M.s probation officer opined that the Salvation Army program would not provide sufficient structure.

In committing Moses M. to the DJF, the juvenile court recited at length its view of his circumstances:

I compliment you on how well you have done. I agree that you have begun your change. However, I am very interested in making sure the change is longstanding and will be life long. My concern is protecting the public. My concern is holding you accountable as well as making sure that you have made the changes so, when you return to the public, the public is safe. Thats basically what my concern is. I am very surprised when I came here that my number one concern is not the protection of the minor but, according to the Legislature, is protection of [the] public.

I compliment you on how well you are doing. It shows you are growing up, that you do have the capability to change, and you are interested in change. However, I think right now the California Youth Authority is the best place for you. . . . I think you need a long-term sustained program. I am hoping the California Youth Authority will come to the conclusion that you need to get into treatment right away and you will make it.

I believe if you apply the less[o]ns that you have learned and the programs you have been involved in, doing the programs at the California Youth Authority will not tax you, will not be hard for you to do extremely well in. Why? Because you have started here and you have got a secure, good foundation for you to show yourself and the others you deal with that you know what you are doing, that you know that you have to make changes; you have started the changes and you will continue them.

Moses M. replied on his own behalf to the juvenile courts comments. Y.A. [is] not a place where you really rehabilitate yourself. Its more of a place where you fight to survive. If I want to keep my clothes on, I keep my food, then I fight. [] You guys say I get 18 months. By the time I am . . . out of intake . . . I have to choose sides. I am not a gang member. I am none of that. . . . [] I have a really bad alcohol problem. . . . When I wake up, I regret it, but its too late. What can I say? I am really sorry for it. Moses M. argued that he would do better in an adult jail setting, but the juvenile court ruled that to sentence him to such a facility would amount to an illegal sentence. The court stated, I trust that they have made the changes appropriate [for your circumstances and] that you will get the treatment that you need. If not, your attorney has the ability to bring it back before me for a review.

DISCUSSION

I. Legal Background

A minor can be adjudged a ward of the juvenile court for committing a crime. (Welf. & Inst. Code, 602, 725, subd. (b).) The juvenile court has a wide range of options available for placing its wards, including unsupervised probation, return to the home under the supervision of a probation officer, a community care facility (id., 727, subd. (a)), a juvenile home, ranch, camp, or forestry camp or the county juvenile hall (id., 730, subd. (a)), or the Division of Juvenile Facilities (id., 731, subd. (a)(4)).

In determining disposition, the juvenile court shall consider, in addition to other relevant and material evidence, (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. (Welf. & Inst. Code, 725.5.) The court must keep in mind the laws multiple goals, partially expressed in Welfare and Institutions Code section 202, subdivision (b). Minors under the jurisdiction of the juvenile court 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 this chapter. If a minor has been removed from the custody of his or her parents, family preservation and family reunification are appropriate goals for the juvenile court to consider when determining the disposition of a minor under the jurisdiction of the juvenile court as a consequence of delinquent conduct when those goals are consistent with his or her best interests and the best interests of the public. The statute also states:  Punishment, for the purposes of this chapter, does not include retribution. (Id.,  202, subd. (e)(5) 2d par.)

Under [Welfare and Institutions Code] section 202, juvenile proceedings are primarily rehabilitative (id., subd. (b)), and punishment in the form of retribution is disallowed (id., subd. (e)). Within these bounds, the court has broad discretion to choose probation and/or various forms of custodial confinement in order to hold juveniles accountable for their behavior, and to protect the public. (Id., subd. (e).) . . . Given these aims, and absent any contrary provision, juvenile placements need not follow any particular order under [Welfare and Institutions Code] section 602 and section 777, including from the least to the most restrictive. [Citations.] Nor does the court necessarily abuse its discretion by ordering the most restrictive placement before other options have been tried. (In re Eddie M. (2003) 31 Cal.4th 480, 507; cf. In re Angela M. (2003) 111 Cal.App.4th 1392, 1396 [Because commitment to CYA cannot be based solely on retribution grounds [citation], there must . . . be evidence demonstrating (1) probable benefit to the minor and (2) that less restrictive alternatives are ineffective or inappropriate.]; In re Michael D. (1987) 188 Cal.App.3d 1392, 1396 [same].)

II. Propriety of The DJF Commitment

Moses M. argues that the juvenile court abused its discretion in committing him to the DJF because (1) the court mistakenly focused solely on the need to promote the publics safety rather than on Moses M.s need to be rehabilitated, and (2) the evidence did not support a DJF commitment.

A. Giving Primacy toEnsuringPublic Safety

1. Standard of Review

 The decision of the juvenile court may be reversed on appeal only upon a showing that the court abused its discretion in committing a minor to CYA. [Citations.] An appellate court will not lightly substitute its decision for that rendered by the juvenile court. We must indulge all reasonable inferences to support the decision . . . and will not disturb its findings when there is substantial evidence to support them. [Citations.] [Citation.] (In re Tyrone O. (1989) 209 Cal.App.3d 145, 151.)

Our deference is not, however, boundless. As relevant here, an abuse of discretion arises if the trial court based its decision on . . . [citation] . . . an incorrect legal standard. (People v. Knoller (2007) 41 Cal.4th 139, 156 [speaking of the granting of a new trial motion].) Moses M. argues that the juvenile court misapplied the legal standard set forth in Welfare and Institutions Code section 202, subdivision (b), in ordering his commitment.

To the extent that a reviewing court is evaluating whether a lower court applied an incorrect legal standard, it is usually addressing a question that is purely or primarily legal. In such a situation, we would review the courts ruling independently. (See People v. Kennedy (2005) 36 Cal.4th 595, 608 [stating the general rule that the abuse of discretion standard applies to questions of pure fact, and . . . the independent review standard applies to questions of pure law]; People v. Marshall (1997) 15 Cal.4th 1, 24 (per curiam) [issue . . . could be treated as primarily a question of law, subject to de novo review].) In this case, however, the issue Moses M. raises is not purely or primarily legal, but is a mixed question of law and fact that involves not a constitutional question but the proper application of Welfare and Institutions Code section 202, subdivision (b), as a matter of state law, given his history of delinquency. Accordingly, [i]n considering the issue, we will defer to the [juvenile] courts resolution of the historical facts by viewing the evidence in a light most favorable to the [commitment order]. In determining whether the facts thus established are minimally sufficient to meet the statutory standard, we must exercise our independent judgment. (In re Ryan D. (2002) 100 Cal.App.4th 854, 862.)

2. Discussion

The juvenile court did not apply an incorrect legal standard. The current version of Welfare and Institutions Code section 202, subdivision (b) states in part that the courts must be guided by public safety: Minors under the jurisdiction of the juvenile court 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 this chapter. (Italics added.) The courts comment that the Legislature had made protecting the public its number one concern is supported by the foregoing language. Under the mandate of Welfare and Institutions Code section 202, [i]n evaluating the courts exercise of discretion in committing a minor to CYA, we now do so with punishment, public safety, and protection in mind. (In re Luisa Z. (2000) 78 Cal.App.4th 978, 987-988.) The new language . . . emphasized different priorities for the juvenile justice system. [Citation.] The new provisions recognized punishment as a rehabilitative tool. [Citation.] Section 202 also shifted its emphasis from a primarily less restrictive alternative approach oriented towards the benefit of the minor to the express protection and safety of the public [citations], where care, treatment, and guidance shall conform to the interests of public safety and protection. [Citation.] [] Thus, it is clear that the Legislature intended to place greater emphasis on punishment for rehabilitative purposes and on a restrictive commitment as a means of protecting the public safety. (In re Michael D., supra, 188 Cal.App.3d at p. 1396.)

Thus, the juvenile court acted according to law, attempting to ensure that the public would be protected from Moses M.s violent behavior while keeping in mind his circumstances and striving to place him in a setting that, according to the testimony the court had heard, was more likely to benefit him than the possible alternatives. Moses M.s claim is without merit.

B. Evidence Supporting Commitment to DJF

Moses M.s next claim is that the juvenile court abused its discretion in committing him to DJF. He asserts that DJF cannot adequately address his behavioral, substance abuse, or mental health problems.

1. Standard of Review

This claim rests on an argument that the juvenile court erred in evaluating the circumstances of Moses M.s case. Because Moses M. asks to us to review the lower courts consideration of historical facts, our review is deferential. As noted,  The decision of the juvenile court may be reversed on appeal only upon a showing that the court abused its discretion in committing a minor to CYA. [Citations.] An appellate court will not lightly substitute its decision for that rendered by the juvenile court. We must indulge all reasonable inferences to support the decision . . . and will not disturb its findings when there is substantial evidence to support them. [Citations.] [Citation.] (In re Tyrone O., supra, 209 Cal.App.3d at p 151.)

2. Discussion

We note preliminarily that Moses M. relies on In re Todd W. (1979) 96 Cal.App.3d 408, and In re Aline D. (1975) 14 Cal.3d 557, for the proposition that DJF is not a suitable placement location for minors who are primarily placement problems, unsophisticated [and] mildly delinquent, or mentally retarded or mentally disturbed. (Todd W., supra, at p. 418, italics omitted.) But Todd W. and Aline D. were decided before Welfare and Institutions Code section 202 was changed in 1984 to include punishment for rehabilitative purposes as an objective of juvenile law. Todd W. and Aline D. are inconsistent with current law as set forth in section 202. (In re Lorenza M. (1989) 212 Cal.App.3d 49, 57-58; see In re Luisa Z., supra, 78 Cal.App.4th at pp. 987-988.)

The evidence, which is well summarized by the material we have quoted from the probation report, supports the juvenile courts conclusions that Moses M. was not aided by his prior placements and that less restrictive alternatives to DJF would be unsuitable. To distill the reports findings, we quote from it again: Moses M. has been the recipient of various rehabilitation programs and has failed to successfully complete any of them, with the exception of the Juvenile Rehabilitation Facilities Program. He has demonstrated he can conduct himself accordingly in a highly structured environment . . . . There was substantial evidence supporting the courts conclusion that Moses M. would be more likely to benefit from a DJF commitment than from any alternative disposition the court could reach. Despite any current limitations on treatment available to wards in the DJF, the record in this case supports a determination of probable benefit to Moses M., if for no other reason than it will curtail his ability to abscond from placement, as he has repeatedly done before. (See 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, fn. omitted [for first-time offender who 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. (1977) 73 Cal.App.3d 327, 335, fn. omitted [CYA commitment for first-time offender was an abuse of discretion when the minor had neither been tried nor failed in any alternative dispositions].) A more secure confinement will allow Moses M. to participate in the available programswhich, to judge by ONeils testimony, will be relevant to addressing some of his difficultiesand will help prevent his recidivism. Even if the DJF will not be able to address all of Moses M.s many problems, the juvenile court could reasonably conclude that a less-than-ideal placement at DJF would still be superior to placement in another, less physically confining program from which, given his history of absconding, he might flee and receive no help at all. On this record, we conclude that the court did not abuse its discretion in committing Moses M. to DJF.^[2]

DISPOSITION

The order committing Moses M. to the Department of Juvenile Facilities is affirmed.

_______________________

Duffy, J.

WE CONCUR:

____________________________

Rushing, P. J.

____________________________

Elia, J.

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^[1]The agency previously held the titles Division of Juvenile Justice (DJJ) and Department of the Youth Authority (CYA). Herein we will call the agency the DJF, but various sources we quote refer to the CYA.

^[2]Moses M. filed in the juvenile court for the courts consideration a consent decree dated November 19, 2004, in Farrell v. Allen (Alameda Co. Super.Ct.No. RG 03079344), detailing the DJFs institutional failures, along with the special masters report, submitted under the same case number but sub nomine Farrell v. Hickman, which concluded that urgent systemic problems continued as late as April 5, 2006, though in DJFs favor [r]emedial plans . . . are in place covering education, sex behavior treatment, disabilities issues and medical care and a talented and hardworking team has developed a promising overall reform plan. Moses M. asserts that the consent decree belies the juvenile courts determination that he is best suited for placement at DJF. We agree with the People, however, who argue that earlier studies . . . have no relevance to conditions at the DJF on or after appellants disposition in this case, which occurred on November 27, 2006. The court properly credited the testimony of ONeil, who testified that DJF had made major improvements and was working toward further reform, and that the facility to which Moses M. would likely be sent was equipped to address his substance abuse problem.