In re Kasey J.

Filed 10/4/06 In re Kasey J. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

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Kasey J., a minor and ward of the court based upon previously sustained petitions, admitted to violating probation. The juvenile court committed the minor to the California Youth Authority (CYA) with a maximum confinement time of 132 months.

On appeal, the minor contends the CYA commitment was an abuse of discretion, and the juvenile court committed the minor without the benefit of a complete and thorough social study. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On September 24, 2003, the minor admitted to five misdemeanors in juvenile court; possession of marijuana on school grounds (Health & Saf. Code, § 11357, subd. (e)), possession of weapons on school grounds (Pen. Code, § 626.10, subd. (a)), possession of burglary tools (Pen. Code, § 466), public intoxication (Pen. Code, § 647, subd. (f)), and possession of dangerous fireworks without a permit (Health & Saf. Code, § 12677). The juvenile court placed the minor on probation with instructions to place him in a group home.

On March 10, 2004, the minor admitted to violating probation by smoking marijuana, drinking whiskey, and taking niacin in an attempt to achieve a clean urine test. The juvenile court continued probation.

On May 12, 2004, the minor admitted to committing two counts of a lewd act on a child under 14 (Pen. Code, § 288, subd. (a)). According to the probation report, defendant engaged in intercourse with his 12-year-old cousin. The girl pushed the minor, but this “appeared to ‘turn him on.’” The victim also witnessed the minor having intercourse with her 12-year-old neighbor. The minor was 16 at the time of the incidents. The juvenile court placed defendant in a group home which had programs for sex offenders and juveniles with substance abuse problems. On July 21, 2004, the minor admitted to violating probation by running away from his placement, failing to report to the probation officer, using marijuana and alcohol, and failing to obey school orders. The juvenile court continued the minor on probation at his prior placement.

On March 14, 2005, the minor admitted to violating probation by running away from his placement again and by failing to obey orders. The juvenile court committed the minor to the CYA with a maximum confinement time of 132 months.

DISCUSSION

I

The minor contends the court abused its discretion in committing him to CYA because there is no substantial evidence to support a finding that a CYA commitment would be of probable benefit to the minor. We disagree.

Before examining the minor’s claim in detail, we address one argument raised by the Attorney General. Citing People v. Scott (1994) 9 Cal.4th 331, 353-354 (Scott), the Attorney General asserts the minor’s objection to the CYA commitment was too vague and perfunctory to preserve his right to challenge the sufficiency of the evidence supporting the commitment order. We reject this contention.

It is generally true that points not urged in the trial court cannot be raised on appeal. But “’[t]he contention that a judgment is not supported by substantial evidence . . . is an obvious exception to the rule.’ [Citations.]” (In re Brian P. (2002) 99 Cal.App.4th 616, 623.) Furthermore, the minor did object to the commitment order. Although the minor did not list insufficient evidence as a ground for the objection, his challenge to the sufficiency of the evidence to support the order was not forfeited.

To justify a commitment to CYA, there must be evidence in the record demonstrating probable benefit to the minor, and evidence supporting a determination that less restrictive alternatives are ineffective or inappropriate. (In re Teofilio A. (1989) 210 Cal.App.3d 571, 576.) “A juvenile court’s commitment order may be reversed on appeal only upon a showing the court abused its discretion. [Citation.] ‘“We must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them.”’ [Citation.]” (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.)

Initially, we note that although the minor cites in his opening brief to specific reports critical of CYA’s ability to rehabilitate in general, and its substance abuse programs in particular, no such reports were entered into evidence nor are they part of the appellate record. Since appellate review is limited to evidence that was before the trial court and is in the appellate record (see People v. Waidla (2000) 22 Cal.4th 690, 703, fn. 1), we do not consider the minor’s references to such reports in support of his abuse of discretion contention.

“Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively demonstrate error.” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573 (Sanghera).) When the minor claims the judgment is supported by insufficient evidence “we must begin with the presumption that the evidence of those elements was sufficient” and the minor “must affirmatively demonstrate that the evidence is insufficient.” (Ibid., original italics.)

The minor claims the only evidence supporting the commitment is a single sentence in the last probation report: “’It is felt CYA could effectively provide the minor with all necessary services, while also providing an acceptable level of community safety.’” This ignores the considerable evidence supporting the commitment order, unfairly reducing this evidence to a single sentence taken out of context from the probation report. An appellant “does not show the evidence is insufficient by citing only his own evidence, or by arguing about what evidence is not in the record, or by portraying the evidence that is in the record in the light most favorable to himself.” (Sanghera, supra, 139 Cal.App.3d at p. 1573, original italics.)

A CYA commitment may be based on a pattern of escape from a less secure facility, increasingly delinquent behavior, the recommendation of the probation department, or the need for a secure facility. (In re Jose R. (1983) 148 Cal.App.3d 55, 61.) The minor went from petty theft to sexual assault in a single year, and he has escaped from his group home two times. Placing the minor back in a group home or some other less secure facility invites another escape.

In addition to being an escapee and a sex offender, the minor has a substance abuse problem. He claims he drank one-and one-half bottles of hard liquor before the sexual assault of his cousin, and to drinking 27 cans of beer before his second sex crime. The probation department concluded the minor is a danger to the community when he drinks.

The probation report noted the minor’s placement in the residential treatment program was “unsuccessful for multiple reasons, including possession of pornography, alcohol consumption, program rule violations, shoplifting, and most importantly his refusal to remain at the program.” The minor “is in need of a secure environment that will provide therapy to address his sexual offending and his sexual victimization. He is in need of intensive supervision, structure and accountability, as well as compulsory drug and alcohol rehabilitation, educational support, independent living and vocational skills.”

These conclusions are supported by expert opinion. A clinical social worker interviewed the minor. He concluded the minor does not take responsibility for his actions, blaming them on drugs, alcohol, and “’running with the wrong crowd,’” and the fact that the minor “remains a high risk for sexual offense and remains a high risk to the community should be taken seriously when considering placement of the young lad.” He does not understand the seriousness of his offenses or the direction of his life. Taking his freedom away could help get the minor’s attention.

According to the director of his former group home, the minor’s “cognitive thinking errors coupled with his high-level criminal thinking and family patterning, put him at a high risk for continued criminal involvement, danger to himself and others, and constant irresponsibility and high risk behavior.” He “remains highly criminally motivated, due to his glorification of crime and his criminal family members.” The report concludes the minor is “not a good candidate for community based treatment” who “would have a better chance in a locked facility that can eliminate the temptation of intoxicating substances and criminal acting out against the public.”

The record discloses the court considered the probable benefit of a CYA commitment and the ineffectiveness of alternative placements. The minor displayed a pattern of increasingly more problematic behavior, and the probation department revised its recommendation to support a CYA commitment. The record also amply supports a finding that alternative placements had been ineffective. He did not take advantage of the programs offered in the group home and twice ran away. Under these circumstances, the court did not abuse its discretion in committing the minor to the CYA.

II

The minor contends the commitment order must be reversed because it committed the minor to CYA without a complete and thorough social study. While he objected to the commitment order, the minor did not object to the social study provided by the probation department.

Trial counsel’s failure to bring errors in a probation report to a court’s attention bars litigating the issue on appeal. (People v. Chi Ko Wong (1976) 18 Cal.3d 698, 724-725, disapproved on other grounds in People v. Green (1980) 27 Cal.3d 1, 33-34.) The minor’s failure to object to the report at the commitment hearing forfeits his claim. (See Scott, supra, 9 Cal.4th at pp. 353-354.)

DISPOSITION

The judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

BLEASE , Acting P.J.

NICHOLSON , J.

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