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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re GERARDO T., a Person Coming Under the Juvenile Court Law.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Kevin Vienna, Supervising Deputy Attorney General, and Daniel Rogers, Deputy Attorney General, for Plaintiff and Respondent.
Defendant and appellant Gerardo T. (minor) contends that the juvenile court abused its discretion in committing him to the Department of Juvenile Justice (DJJ) (formerly the California Youth Authority (CYA)).[1] We find no abuse of discretion.
PROCEDURAL BACKGROUND
On March 10, 2004, the Los Angeles County District Attorney (district attorney) filed a Welfare and Institutions Code section 602[2] petition alleging that minor committed assault with a deadly weapon by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1), count 1) and battery (Pen. Code, §§ 242/243, subd. (a), count 2) (DACASE 24397824). On April 6, 2004, minor admitted count 1, pursuant to a plea agreement, and count 2 was dismissed. Minor was declared a ward of the court and placed on probation.
On May 27, 2004, the district attorney filed a section 777 notice alleging that minor had violated probation by failing to enroll in school and using marijuana on a regular basis. On June 17, 2004, minor admitted violating probation, and the juvenile court modified his probation to include a short-term camp community placement program. Minor completed the camp community placement program on October 19, 2004.
On November 22, 2004, the probation officer filed a request for the issuance of a bench warrant. Minor was found in possession of narcotics at school, and when school officials attempted to detain him, he fled. On January 4, 2005, the district attorney filed a second section 777 notice of violation of probation. On January 20, 2005, minor admitted violating probation, and the court placed him in a camp community placement program, to be followed by placement at the Phoenix House. He was placed at the Phoenix House on May 4, 2005. He was then placed at the Masada Group Home, but left it without permission on May 17, 2005. The court issued a warrant for his arrest.
On June 1, 2005, the district attorney filed a third section 777 petition alleging that minor had violated probation. The court modified minor's probation to place him in a midterm camp for six months. Minor was placed in CampMiller on June 8, 2005. He graduated from CampMiller on December 8, 2005.
On December 8, 2005, the juvenile court transferred the case to San BernardinoCounty, since minor's mother relocated there.
On March 7, 2006, minor admitted the allegation of being a minor in possession of a firearm, pursuant to a plea agreement, and the remaining allegations were dismissed. The court transferred this case (DACASE 26332135) to San BernardinoCounty for disposition.
A disposition hearing was held on April 26, 2006. The court heard testimony from minor's probation officer and a psychologist who performed an evaluation of minor. The court ordered minor's wardship continued and committed him to CYA, with a maximum period of physical confinement not to exceed four years eight months.
ANALYSIS
Minor contends the juvenile court abused its discretion in committing him to CYA because he will not receive the type of psychological counseling and treatment that he requires there. We disagree.
A. Background
At the disposition hearing, the prosecution submitted as evidence two psychological evaluations of minor, as well as probation reports from Los AngelesCounty and San BernardinoCounty.[3] The San BernardinoCounty probation report discussed the circumstances surrounding the allegations in the current section 602 petition. Minor was found driving a stolen car. When the police attempted to stop him, he threw a gun out of the window, and when the police apprehended him, they found several bags of methamphetamine and a scale on his person. This offense occurred only two months after minor's release from his third camp commitment. The San BernardinoCounty probation officer testified at the hearing. She testified that in preparing the probation report, in which she recommended that minor be placed at CYA, she considered minor's probation history, the escalation in his criminal activity, his drug use, and the fact that he had been to three camp settings and one residential treatment center, and left the residential treatment without permission within days of being placed there. The probation officer further testified that when she initially contacted minor on the phone, he told her that he was hearing the voices of small children and that his forehead was moving. The probation officer testified that CYA could provide psychotropic medication, if needed.
Dr. Annette Ermshar, who prepared a psychological assessment of minor, also testified at the hearing. She testified that minor had a long history of depression and suicidal thoughts. Minor was sexually abused when he was younger, and he had never really addressed the issue before. Minor also had substance abuse issues and had only received minimal substance abuse treatment in his previous placements. She further testified that minor's substance abuse, depression, and the potential effects of sexual abuse underlay all of his problems, and that none of these issues were addressed in his camp placements. Dr. Ermshar disagreed with the probation officer's recommendation of a CYA placement because she believed minor would be exposed to gangs and drugs there. She recommended placement in a locked facility that would immediately address his issues.
In response, the prosecutor acknowledged that Dr. Ermshar adequately diagnosed minor's mental health and counseling needs, but she failed to address the fact that a person could have the same problems as minor and still not commit crimes. He also mentioned that he was not familiar with any locked facilities available to San BernardinoCounty other than CYA.
In rendering its decision, the court augmented the information that had been presented by stating that it had reviewed the Los AngelesCounty probation report and remarked that minor had significant problems in his camp placements, including running away, fighting, failure to follow instructions, and defiance. The court also indicated that minor received mental health and substance abuse counseling at one of the camp placements. The court noted that minor had a history of assaultive behavior, fighting, drug abuse, and weapon use – none of which was appropriate for an â€
Description
Defendant (minor) contends that the juvenile court abused its discretion in committing him to the Department of Juvenile Justice (DJJ) (formerly the California Youth Authority (CYA)). Court find no abuse of discretion.
