Filed 4/11/17 In re T.A. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



In re T.A., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

T.A.,

Defendant and Appellant.


E066200

(Super.Ct.No. J249013)

OPINION


APPEAL from the Superior Court of San Bernardino County. Corey G. Lee, Judge. Affirmed.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant T.A (minor) contends that the juvenile court abused its discretion in committing him to the Department of Juvenile Justice (DJJ). We find no abuse of discretion.
PROCEDURAL BACKGROUND
On November 3, 2008, minor was arrested for felony grand theft of personal property. (Pen. Code, § 487, subd. (a).) The court placed him on informal probation.
On September 5, 2012, minor was arrested for two counts of petty theft. (§ 490.1.) One of the offenses was sustained as an infraction, and a juvenile court ordered him to pay a fine and complete a petty theft class.
In March and April 2013, minor was arrested for second degree commercial burglary (§ 459) and vandalism under $400 (§ 594, subd. (b)(2)). The second commercial degree burglary allegation was sustained as a misdemeanor, and he was placed on the house arrest program (HAP) and screened for wraparound services. In May 2013, the HAP was terminated, and minor was declared a ward. He was then given wraparound services in June 2013.
On August 5, 2013, minor was arrested for violating the curfew term of his probation. He was continued as a ward of the court, and wraparound services were continued.
On October 18, 2013, minor was arrested for grand theft of personal property (§ 487, subd. (a)) and receiving stolen property (§ 496, subd. (a)). The court sustained the grand theft offense, continued minor as a ward, and placed him at Pacific Lodge on January 17, 2014.
On February 5, 2014, minor was found to be in violation of the terms of his placement. Thus, he was removed from Pacific Lodge and placed at Clear View Treatment Center (Clear View) on February 26, 2014.
On March 16, 2014, minor came up from behind and put a wet pillow over the face of a staff member at Clear View. The court sustained the allegations that he committed battery (§ 242) and assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)). At that point, the probation officer recommended that minor be committed to DJJ due to his escalating behavior; however, the court placed him in the gateway program (Gateway). On January 5, 2016, minor was promoted from Gateway and began aftercare probation.
On February 23, 2016, the probation department filed a petition alleging that minor violated the terms of his probation requiring that he obey all laws, attend school daily, and abide by school rules. The petition specifically alleged that minor was arrested on February 21, 2016, for burglary (§ 459), and that he had unexcused absences from school from January 22, 2016, through February 17, 2016.
The court held a jurisdictional hearing on March 29, 2016, and, after hearing testimony from the burglary victims, police officers, and minor’s probation officer, the court found the probation violation allegations true.
The court held a contested dispositional hearing on May 17, 2016, found that the prior dispositions had failed, and committed minor to DJJ.
ANALYSIS
The Court Properly Placed Minor in DJJ
Minor argues that the court abused its discretion by placing him in DJJ because his most recent offense was not a serious or violent offense pursuant to Welfare and Institutions Code section 707, subdivision (b), but rather a violation of probation. He also asserts that he was “not a sophisticated delinquent youth,” and that less restrictive alternatives were appropriate and available. We find no abuse of discretion.
A. Proceedings Below
Minor’s probation officer filed a report recommending that minor be committed to DJJ, after reviewing his criminal history. The officer noted that, despite being in Gateway for 18 months, minor continued to reoffend and victimize citizens. The officer considered minor a danger to himself and the community, and opined that he needed intense supervision, mental health counseling, and treatment, which were all available at DJJ.
At a contested disposition hearing on May 17, 2016, the probation officer testified regarding minor’s criminal history. He testified that minor’s first placement at Pacific Lodge began on January 7, 2014, and only lasted about three weeks. He was removed from that placement for a violation of probation. He was then placed at Clear View on February 10, 2014; however, he was removed from that placement approximately three weeks later, after he was arrested. The probation officer testified that the court sustained the allegations that minor committed battery (§ 242) and assault by means likely to produce great bodily harm (§ 245, subd. (a)(4)). The victim, who was a staff member at Clear View, reported that minor came up from behind her and placed a pillow over her face for about 30 seconds, until she was able to get out of the situation and scream for help. Minor was subsequently placed in Gateway. He completed the program. However, about six weeks after his release from Gateway, he violated his probation. The probation officer testified that minor violated his probation by failing to attend school and committing burglary. With regard to burglary, minor tried to steal items from vehicles, ran away when the police arrived on the scene, and resisted arrest when he was caught. The probation officer was now recommending that minor be placed in DJJ due to his escalating behavior and the fact that he completed an 18-month program at Gateway, yet reoffended in the community six weeks later. The probation officer testified that minor had already been in placement, and there was no other treatment available to him within the juvenile system.
Minor’s mother also testified at the hearing. She said she did not feel that DJJ would be appropriate for minor because he was different than the other kids there. She said minor was “a good kid at heart,” but was just impulsive and made “silly decisions.” Minor’s mother said he was supposed to take three types of medication to help him, and she noticed a difference in him when he was on his medication; she said he was much calmer, and he seemed to think before he acted.
Minor testified on his own behalf at the hearing. When asked why he violated his probation just six weeks after he completed Gateway, he said he just “was at the wrong place at the wrong time.” He said he ran from the police because he panicked. Minor was then asked if he was taking his medication when he violated his probation, and he said, yes. On cross-examination, minor denied that the incident at Clear View concerning smothering the staff worker with the pillow even occurred. Concerning his recent probation violation, he denied that he broke into a car, but admitted that he ran away from the police anyway. Minor also said he was turning 19 in March 2017.
During closing arguments, the prosecutor said that all possible treatment options that the juvenile system had to offer had been exhausted, other than DJJ. He noted that, even so, minor still seemed to be unable to control his actions, and he failed to take responsibility for his conduct. He argued that DJJ was the last chance to keep minor out of the adult system and state prison.
The court stated that it had given a lot of thought to the facts presented, as well as the court file and reports. It considered minor’s extensive delinquent history and unsuccessful attempts at rehabilitation. The court determined that committing him to DJJ was appropriate, stating that one of the driving factors was its fear that his criminal conduct may continue as an adult, which would result in him going into the adult prison system. The court found that previous attempts at rehabilitation had failed, noting that minor had been tried on probation and in custody. It further noted that the current offense of burglary was not a Welfare and Institutions Code section 707, subdivision (b) offense; however, the prior offense of assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) was. The court stated that it weighed and considered less restrictive alternatives and rejected them as inappropriate. The court then committed minor to DJJ for 18 months.
B. Standard of Review
“We review a commitment decision only for abuse of discretion, and indulge all reasonable inferences to support the decision of the juvenile court.” (In re Asean D. (1993) 14 Cal.App.4th 467, 473; see In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.) An appellate court will not lightly substitute its decision for that of the juvenile court, and the decision of the court will not be disturbed unless unsupported by substantial evidence. (Michael D., at p. 1395.) The 1984 amendments to the juvenile court law reflected an increased emphasis on punishment as a tool of rehabilitation, and a concern for the protection and safety of the public. (Id. at p. 1396.) Since retribution must not be the sole reason for punishment, there must be evidence demonstrating probable benefit to the minor and the inappropriateness or ineffectiveness of the less restrictive alternatives. (Ibid.)
C. There Was No Abuse of Discretion
Based on the record before us, we conclude the court’s decision to commit minor to DJJ was not an abuse of discretion. As the record demonstrates, the juvenile court engaged in a thoughtful analysis of minor’s needs. The court properly considered his extensive criminal and placement histories. The fact that the most recent offense of burglary occurred only six weeks after minor’s release from his third camp placement shows that his previous experience with the criminal justice system had not had an appreciable effect on him. While minor testified that he “did relatively well” at Gateway and “completed many components” of the program there, his continued criminal conduct provides ample evidence of the rehabilitative failure of his placements. As noted by the probation officer, despite being in Gateway for 18 months and promoting from there, minor reoffended and victimized citizens. He was in need of intense supervision and treatment, which DJJ could provide.
Furthermore, the court properly considered minor’s age and noted its fear that he would end up in the adult prison system if his criminal conduct continued. The court stated its belief that minor could still be rehabilitated and that DJJ would benefit him through its programs, counseling, and education. The court remarked that minor had been given an additional opportunity, since he violated his probation at his first placement and was given another opportunity at a different placement. The court further noted that it was at the second placement (Clear View) that he committed the serious offense of assault by means likely to produce great bodily injury, when he tried to suffocate a staff member with a wet pillow. Even after being given a third chance at Gateway, minor committed the latest offense of burglary. Finally, the court considered minor’s attitude and lack of remorse for his offenses.
Minor contends that the court was prohibited from placing him in DJJ since his most recent offense was not a Welfare and Institutions Code section 707, subdivision (b) offense, but rather a probation violation under Welfare and Institutions Code section 777. Minor is mistaken. Welfare and Institutions Code section 733, subdivision (c), prohibits a commitment to DJJ if “[t]he ward has been or is adjudged a ward of the court pursuant to Section 602, and the most recent offense alleged in any petition and admitted or found to be true by the court is not described in subdivision (b) of Section 707.” This section specifically refers to an offense that is alleged in a “petition.” In view of the plain language of the statute, “‘the most recent offense’ in subdivision (c) refers to an offense alleged in a petition that is filed under [Welfare and Institutions Code] section 602, but not to a probation violation that is alleged in a notice filed under section 777.” (In re J.L. (2008) 168 Cal.App.4th 43, 58.) Here, the most recent offense alleged in a Welfare and Institutions Code section 602 petition and sustained against minor was for assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)), which is a Welfare and Institutions Code section 707, subdivision (b) offense. (Welf. & Inst. Code, § 707, subd. (b)(14).) The juvenile court here acknowledged such at the time it committed minor to DJJ.
Minor further argues that the court abused its discretion since he was “not a sophisticated delinquent youth,” and, therefore, DJJ was inappropriate and would run the risk of “training [him] to be a sophisticated criminal.” He adds that a DJJ commitment was not necessary for the protection of the public because he did not harm anyone when committing the auto burglary or vandalism. Minor cites In re Teofilio A. (1989) 210 Cal.App.3d 571, in support of his claims. In that case, the court concluded that the minor was not a suitable candidate for the California Youth Authority, stating that courts had “‘shown a realistic concern for commingling of unsophisticated, mildly delinquent minors “with the more criminally oriented groups of delinquents committed to California Youth Authority,” thereby converting them to trained and sophisticated criminals.” (Id. at p. 577.) Here, minor’s extensive criminal history, which includes petty theft, vandalism, burglary, grand theft of personal property, battery, and assault by means likely to produce great bodily injury, demonstrates that he was not an “unsophisticated, mildly delinquent” minor. Moreover, although he did not harm anyone when committing vehicle burglary, the record shows that he committed an assault when he attempted to suffocate a staff member at Clear View with a wet pillow. This assault was the most recent offense alleged in a Welfare and Institutions Code section 602 petition.
Minor finally claims that the court failed to adequately consider less restrictive alternatives. However, numerous less restrictive alternatives were not only considered, but tried. Minor was placed on house arrest, given wraparound services, placed at Pacific Lodge, Clear View, and Gateway, and even completed the 18-month program at Gateway. As the court noted, despite being given many opportunities, all previous attempts at rehabilitation were unsuccessful.
We conclude that, on this record, the court did not abuse its discretion in committing minor to DJJ.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST
J.
We concur:


RAMIREZ
P. J.


McKINSTER
J.