Filed 9/27/17 In re P.F. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Winston Keh, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Valarie Mark Kalb, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.

A Welfare and Institutions Code section 602 petition alleged that defendant and appellant P.F. (minor) evaded a peace officer while driving in willful and wanton disregard for safety, a felony. (Veh. Code, § 2800.2, subd. (a), count 1.) On a motion by the People, the court reduced the allegation to a misdemeanor. Minor admitted the allegation as true. Following a contested disposition hearing, a juvenile court declared minor a ward and placed him on formal probation in the custody of his mother, under specified terms and conditions.

On appeal, minor contends that the court abused its discretion when it declared him a ward of the court and imposed formal probation without properly considering nonwardship probation. We affirm.

FACTUAL BACKGROUND[1]

On July 2, 2016, at approximately 1:17 a.m., a police officer observed a BMW and another car travelling well above the posted speed limit. The officer opined that the two cars were engaged in a speed contest. The officer attempted to pull the BMW over, but the driver, later identified as minor, failed to stop. Although the officer activated his overhead lights and siren, minor, who was 17 years old, sped away from the officer. He ran a stop sign and turned off his headlights, in an apparent attempt to evade the officer. Minor accelerated to an estimated speed of 100 miles per hour and almost collided with several cars on the road, while abruptly changing lanes. He got on the freeway and drove on the right shoulder, passing several cars. Minor accelerated to 120 to 130 miles per hour. He got off the freeway and ran a red light, then finally yielded to responding police units.

The officer contacted minor, and there were two intoxicated minors in his car. Minor showed no signs of impairment. Upon questioning, minor said he was taking his friends home. He said he did not want to get a ticket, so he sped up in an attempt to get away from the officer. He acknowledged that he was not supposed to transport passengers or drive after 11:00 p.m. since his license was still in provisional status.

ANALYSIS

I. The Court Properly Declared Minor a Ward and Placed Him on Formal Probation

Minor contends the juvenile court abused its discretion in declaring him a ward and placing him on formal probation, rather than granting nonwardship probation for six months (summary probation). (Welf. & Inst. § 725, subd. (a).)[2] He claims the court improperly based its order on the seriousness of the offense and the possibility that he might not be able to complete the Youth Alternative Sentencing Program (YASP) within six months. He argues that by focusing only on these two factors, the court failed to fully consider the positive factors in his life and the less restrictive alternative of nonwardship probation. We find no abuse of discretion.

A. Disposition Hearing

The court held a contested disposition hearing on November 2, 2016. It received a report from the probation department, which included minor’s statement, his parents’ statement, an assessment of his family, his education record, his physical and mental health record, and the probation officer’s recommendation. The report recommended that minor be declared a ward and placed on formal probation. One of the recommended probation conditions was for minor to attend and complete the YASP.

The probation officer who wrote the report (the officer) testified at the hearing. She said that minor had no prior criminal history and had never been placed on probation. The officer interviewed minor’s mother (mother), who said minor had no history of eating disorders, emotional problems, mental illness, prescription medications, running away, physical altercations with anyone, drug or alcohol use, gang involvement, problems in school, or behavioral issues at home. The officer also interviewed minor, and she testified that he took responsibility for his actions in this case and expressed remorse. Minor told her he had a good relationship with his parents, and that he was willing to comply with any court or probation department orders. When asked why she recommended formal probation, the officer said she looked at the circumstances of the offense, including the high rate of speed minor was driving and the fact that he had two passengers who were under the influence, as well as the fact that he was not under the influence. She recommended YASP and an Alive at 25 class, and noted that these programs are put on hold for the holidays. Since summary probation was for six months only, she wanted to give minor’s family enough time to complete the YASP. She was hoping to get minor into the program in mid-January. The officer acknowledged that the YASP was an alcohol-use program, but testified that a portion of the program largely included education on safety and responsibility in using a motor vehicle. The program also included visits to the emergency room and morgues, as well as a parenting program. Thus, the length of time to complete it depended on the availability of minor and his parent’s schedule. The officer noted that if minor was put on summary probation that day, he would have three months or less to complete the program, and she did not want to set him up to violate the terms of his summary probation.

Minor testified on his own behalf at the hearing. He said that, since being interviewed by the officer (i.e., the time period about which she testified) he had not taken psychotropic medication, he had not run away from home, he had not used drugs or alcohol, he had not physically fought anyone, he was not in a gang, and he had not been suspended or expelled from school. He said he had good relationships with his family, he was currently looking for a job, and he was willing to abide by the probation conditions. When asked how he felt about his conduct in this case, he said it was a “split second mistake,” and once he realized what was happening, he pulled over and did not resist the police at all. He said his curfew was 11:00 p.m. and admitted he was not supposed to be out at 1:00 a.m. He had told his mother he was spending the night at his friend’s house. Minor said his friends were drinking alcohol, and he knew they were intoxicated. When asked why he was driving so fast, he said, “I’m not sure.”

The court noted that the issue before it was whether minor should be on summary probation or formal probation. It recognized that defense counsel’s position was that the recommended probation conditions could be given on summary probation. The court understood her position and acknowledged that minor had never been in the juvenile system before. However, it was concerned because his violation was “scary.” The court addressed minor and said it did not understand why he was going over 100 miles per hour. It understood that minor was trying to get away from the police officer, but stated that he put his friends, as well as other motorists, in danger. The court noted how fortunate they were that nobody was seriously hurt or fatally injured. The court said it had to weigh the various interests in the case, then stated that it took into consideration the seriousness of minor’s conduct, the circumstances of the offense, and the fact that he tried to run away from the police. The court acknowledged the mitigating factor that minor had no prior history, but stated that the safety and protection of the public was paramount. The court was very concerned because minor put himself and others in harm’s way, and it felt that he needed to feel remorse and be held accountable. The court stated that it was not convinced summary probation was the way to go because it had a six-month window. The court then ordered minor to be placed on formal probation, but said it would consider early termination if he was successful in complying with all his probation requirements.

Defense counsel objected and argued that the court should not place minor on formal probation just because of the circumstances of the case, but it needed to consider minor’s history. Counsel argued that the court should look at the least severe alternatives and put minor on summary probation. She further objected to minor having to complete the YASP condition, since it was a DUI program. The prosecutor responded that the court had to look at minor’s history and the offense and noted that minor lied to his mother and said he was not going out, he was out with people he knew were intoxicated, and he just got lucky that he did not hit any of the cars he was speeding past. The prosecutor stated that the court had properly considered the offense and the total behavior of minor. The court then affirmed its order of formal probation.

B. Relevant Law

If the court has found that the minor is a person described by section 602, it may either adjudge the minor to be a ward of the court or, without adjudging the minor a ward, place the minor on probation, under the supervision of the probation officer, for a period not to exceed six months. (§ 725, subds. (a) & (b).) In determining the judgment and order to be made, “the 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 minor’s previous delinquent history.” (§ 725.5.) The court is not required to specifically discuss each of these factors at the time of disposition. “The Legislature used the term ‘consider’ in the language of that section. The court fulfills this obligation when it carefully examines and takes into account the factors stated.” (In re John F. (1983) 150 Cal.App.3d 182, 185 (John F.).)

In reviewing a juvenile court’s disposition, this court “must indulge in all reasonable inferences from the evidence and the record to support the action of the juvenile court. [Citations.] An order of disposition, made by the juvenile court, may be reversed by the appellate court only upon a showing of an abuse of discretion.” (In re Darryl T. (1978) 81 Cal.App.3d 874, 877 (Darryl T.), superseded by statute on other grounds, as stated in In re Dorothy B. (1986) 182 Cal.App.3d 509, 518.)

C. The Court Properly Exercised its Discretion

Minor argues that the court abused its discretion by basing its decision on the seriousness of the offense. He claims “the court’s singular focus on the gravity of the offense suggests it failed to fully consider all of [his] circumstances as required by section 725.5.” However, the record clearly reflects that the court took the proper factors into consideration.

At the outset of the hearing, the court indicated that it had the probation officer’s report and acknowledged the probation officer’s recommendation for wardship and formal probation. Although minor claims the court failed to take into account his “stable home, family and school environment, his remorse, or the absence of issues such as substance abuse or gang involvement,” the probation report explicitly discussed all those issues. Furthermore, the probation officer testified before the court that minor had no history of drug or alcohol use, gang involvement, problems in school, or behavioral issues at home. The officer also testified that minor took responsibility for his actions in this case and expressed remorse. In addition, the court heard and considered minor’s own testimony that he did not use drugs or alcohol, he was not in a gang, and he had not been suspended or expelled from school. He also testified that he had good relationships with his family. In making its order, the court expressly recognized that minor had no prior juvenile history and stated that his lack of history mitigated in his favor. The record reflects that the court weighed that factor, along with the circumstances of the offense, including that minor tried to run away from the police, he was driving over 100 miles per hour, and he put himself, his friends, and other motorists in serious danger. Thus, the court considered all the appropriate factors in exercising its discretion.

Minor further contends that the court abused its discretion when it declared him a ward and placed him on formal probation without properly considering whether nonwardship probation would be ineffective. He claims that the court’s order cannot be affirmed unless the record “contains ‘evidence supporting a determination that less restrictive alternatives are ineffective or inappropriate.’ ” In support of this claim, he relies upon In re Teofilio A. (1989) 210 Cal.App.3d 571, 576 (Teofilio A.) and In re Michael R. (1977) 73 Cal.App.3d 327, 336-337 (Michael R.). However, such reliance is misplaced. In both cases, the court ordered the minors to be committed to the California Youth Authority (CYA, now known as the Department of Juvenile Justice), which is considered the placement of last resort, after all else has failed. (In re Aline D. (1975) 14 Cal.3d 557, 564, superseded by statute on other grounds, as stated in In re Dorothy B. (1986) 182 Cal.App.3d 509, 518; Teofilio A., supra, 210 Cal.App.3d at p. 576 [“To support a CYA commitment, it is required that there be . . . evidence supporting a determination that less restrictive alternatives are ineffective or inappropriate.”].) Here, the court did not order minor to be committed to the most restrictive alternative (CYA), but merely ordered wardship in his mother’s custody with probation.

Minor also argues that the court erred in basing its denial of nonwardship probation on the possibility that he might not be able to complete the YASP within the six-month period under section 725, subdivision (a). He asserts that the potential that he would not complete the program on time was not a valid reason to deny nonwardship probation. He further asserts that the court had the option of placing him on summary probation with the YASP condition, and if he was not able to complete the YASP before his nonwardship probation expired, the court could declare him a ward and impose formal probation. He claims the court did not mention this option or explain why it would be ineffective. Minor cites no authority for these contentions.

Moreover, the record reflects that defense counsel argued for the court to impose the YASP condition on nonwardship probation, and if minor did not complete the program in that timeframe, it could place him on wardship probation. The court asked the prosecutor for her position, and she asserted that the court had properly considered minor’s history, as well as the circumstances of the case. The prosecutor added that she was offering early termination of formal probation, if minor completed his requirements. Therefore, the record demonstrates that the court considered both possibilities before it chose to place minor on formal probation. The court stated that it would consider early termination, and it set an early review date to see how minor was progressing. We cannot say that the court’s decision was arbitrary or capricious. (Darryl T., supra, 81 Cal.App.3d at p. 877.) It simply was not persuaded by defense counsel’s argument for nonwardship probation.

We conclude that the court properly exercised its discretion in declaring minor a ward and placing him on formal probation.

II. The Probation Condition is Valid

Minor next contends the probation condition requiring him to attend and complete the YASP was invalid under People v. Lent (1975) 15 Cal.3d 481 (Lent) since it was unrelated to his offense or to preventing future criminality. We disagree.

Section 730 authorizes courts to establish conditions of probation in juvenile cases. It provides in part: ‘[T]he court may make any and all reasonable orders for the conduct of the ward.” “A juvenile court enjoys broad discretion to fashion conditions of probation for the purpose of rehabilitation and may even impose a condition of probation that would be unconstitutional or otherwise improper so long as it is tailored to specifically meet the needs of the juvenile. [Citation.] That discretion will not be disturbed in the absence of manifest abuse.” (In re Josh W. (1997) 55 Cal.App.4th 1, 5.)

In Lent, supra, 15 Cal.3d at p. 486, the Supreme Court held that a condition of probation will be considered invalid if “it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.’ ”

Minor argues that requiring him to attend the YASP had no relationship to his crime. He admitted the allegation that he evaded a peace officer while driving in willful and wanton disregard for safety. (Veh. Code, § 2800.2, subd. (a).) He now asserts that his offense does not inherently involve drugs or alcohol, he was not intoxicated at the time of the offense, and he was not charged with driving under the influence. Even so, the probation officer testified that, while the YASP was an alcohol-use program, the program largely included education on safety and responsibility in using a motor vehicle. The program also included visits to the emergency room and morgues, as well as a parenting program. The record shows that minor was driving well above the speed limit, and when an officer tried to pull him over, he evaded the officer by running a stop sign, turning off his headlights, accelerating to speeds of up to 130 miles per hour, and driving on the shoulder of the freeway. In doing so, he almost crashed into other cars. Thus, although minor was not intoxicated at the time of the incident, the requirement of attending a program that educates people on the responsibilities of driving a car and the consequences of unsafe driving was related to his offense.

Furthermore, the YASP condition was related to deterring future criminality. It was reasonable for the court to conclude that ordering minor to learn about responsible driving and visit emergency rooms and morgues to witness the consequences of reckless driving would deter him from careless and unsafe driving in the future.

Minor asserts that he could have obtained similar benefits by attending some other less time-consuming safe driving course. Even if such other programs were available, we cannot say the court abused its discretion in following the probation officer’s recommendation that minor complete the YASP, given that he drove 130 miles per hour, with two passengers, simply to avoid getting a ticket from the police.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

MILLER

J.