In re Jasper R.

Filed 3/15/07 In re Jasper R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. Douglas N. Gericke, Judge. Affirmed.

Cristina Gabrielidis, 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, Lilia E. Garcia, Supervising Deputy Attorney General, and Kristine A. Gutierrez, Deputy Attorney General, for Plaintiff and Respondent.

After three sustained petitions under Welfare and Institutions Code section 602,^[1]the juvenile court committed minor and appellant Jasper R. (minor) to the California Youth Authority (CYA).^[2] On appeal, minor contends that the juvenile court abused its discretion in placing him at CYA. For the reasons set forth below, we shall affirm the disposition of the juvenile court.

I. FACTUAL AND PROCEDURAL HISTORY

A. First Petition

On August 18, 2004, minor stole a golf cart from the Ironwood Apartments.

On August 19, 2004, the San Bernardino County District Attorney filed a petition (the first petition) to have minor declared a ward of the court under section 602. The petition alleged that minor committed the following crimes: (1) grand theft of personal property under Penal Code section 487, subdivision (a) (count 1); (2) receiving stolen property under Penal Code section 496d, subdivision (a) (count 2); and (3) vandalism under Penal Code section 594, subdivision (b)(2)(A) (count 3).

On September 8, 2004, minor admitted count 1 and the remaining allegations were dismissed. On September 21, 2004, minor was declared a ward of the court and placed on probation, to be housed in juvenile hall pending a suitable placement.

On February 14, 2005, the probation officer requested that minor be placed in a different facility because he was not suitable for Lodgemakers, where he had been placed. Minor was ordered housed in juvenile hall pending a suitable placement.

B. Second Petition

On October 14, 2005, minor and several accomplices broke into California Highway Patrol Officer Chad Millwards house in Apple Valley and stole tools, electronics, jewelry, and cash worth a total of approximately $21,000. They also stole a 1991 Ford Ranger truck.

On October 20, 2005, minor and Darius P. entered the Clearview Treatment Center (CTC) where minor had previously resided. The boys wore ski masks. Darius P. pointed a gun at Francis Cullen, a childcare worker, and demanded that she give them money and the keys to the CTC van. Cullen walked outside and told the boys to think about what they were doing to their lives, that they were committing a felony and they had a chance to leave. Darius P. told Cullen to go back inside or she would be hurt. Once inside, minor told Darius P. to tie up Cullen. Cullen then complied with their commands and gave them a cash box which was kept in a locked refrigerator. Minor and Darius P. took approximately $450 and the CTC van. As they were leaving, minor instructed Cullen not to call the police.

Later that day, Steven McNally, the executive director of CTC, found the stolen van within a mile of the center, behind a shopping center. McNally saw minor and another young man walking away from the van. McNally called the police. Police officers stopped minor near the shopping center and found the keys to the van in his pocket. A witness later identified minor as the person she saw park the van behind the shopping center.

After minor waived his Miranda^[3]rights, he admitted committing the CTC robbery. Minor explained that he began discussing robbing CTC two nights prior to the robbery with Darius P., and that the night before the robbery he cut the red tip off a BB gun. On the morning of October 20, Darius P. came to minors house around 5:00 a.m. and they walked to CTC. When they arrived at CTC approximately 45 minutes later, they put on ski masks and then went inside. While minor admitted that he was involved in the robbery, he attempted to minimize his role by claiming that he did not know Darius P. was going to use the gun during the robbery. Minor also claimed that he walked away while Darius P. drove away in the van. Minor, however, admitted that he drove the van a short time later. Minor told the detective that he could find the ski masks and a handgun in the vehicle parked in front of his house. The officers were able to locate these items where minor said they would be. Minor also admitted his involvement in the Millward burglary.

On October 24, 2005, minor admitted that he violated probation condition No. 3 by leaving Corinthians Group Home without permission. Minor was ordered housed in juvenile hall pending a suitable placement. On the same day, the San Bernardino County District Attorney filed a new petition (the second petition) to have minor declared a ward of the court under section 602. The second petition alleged that minor committed the following crimes: (1) first degree residential robbery under Penal Code section 211 (count 1); (2) unlawful taking of a vehicle under Vehicle Code section 10851, subdivision (a) (count 2); (3) dissuading a witness from reporting a crime under Penal Code section 136.1, subdivision (b)(1) (count 3); and (4) first degree residential burglary under Penal Code section 459 (count 4).

On November 17, 2005, the juvenile court found counts 1, 2, and 4 in the second petition true and count 3 not true.

C. Third Petition

On September 19, 2005, at about 5:00 p.m., Parole Agent Thomas Tallagua was driving on Vineyard Avenue in Ontario when he noticed minor and two other minors walking down the street. Minor was throwing up gang signs and had a gun in his waistband, which he removed and waved around. Agent Tallagua stopped and confronted minor and conducted a consensual patdown search for weapons. Agent Tallagua removed a plastic BB gun from minors waistband and a plastic clip from minors pocket. An officer who had been called to the scene searched minor and found a black permanent marker. After minor waived his Miranda rights, he stated that he was taking the marker to his friend who was a tagger and admitted that he was a member of the Westside Compton Crips.

On January 18, 2006, the San Bernardino County District Attorney filed a third petition under section 602 (the third petition). The petition alleged that: (1) minor brandished a replica gun under Penal Code section 417.4 (count 1); and (2) minor possessed tools used to commit vandalism or graffiti under Penal Code section 594.2, subdivision (a) (count 2).

On February 8, 2006, the juvenile court found both allegations in the third petition true.

On March 6, 2006, minor was placed at CYA with a maximum term of confinement of eight years eight months.

Minor appeals.

II. DISCUSSION

The Juvenile Court Did Not Abuse Its Discretion in Committing Minor to CYA

Minor contends that the juvenile court erred when it committed minor to CYA because there was little evidence to show that minor would benefit from CYA placement and there was an appropriate, alternative placement available. We disagree.

A.Background

In the December 12, 2005, probation report, and at the dispositional hearing, the probation officer recommended that minor be placed at Rite of Passage (ROP) Sierra Ridge, a remote boot camp-like placement in the San Andreas Mountains. The probation officer explained:

This officer seriously considered recommending [CYA] due to the sophistication of the minors crimes and the danger he poses for society. However, the undersigned believes that Probation has yet to exhaust all avenues available to the minor. Therefore, this officer is recommending the minor be re-placed in a remote, highly structured placement facility, that can closely monitor the minor and offer extensive counseling and therapy to deal with his issues.

At the initial dispositional hearing on February 27, 2006, the prosecution presented a written statement from one of the burglary victims and argued against the placement recommended by the probation department. The prosecutor argued that the gravity of minors current crimes, committed after three previous unsuccessful attempts at placements, necessitated a CYA placement because it was the only setting where they could work on minors rehabilitation while protecting the community. Minors counsel argued for an ROP placement because of minors young age, history of abuse, and the successful track record of the ROP program.

The juvenile court indicated its tentative decision to commit minor to CYA, but asked the probation department to ensure that there was an appropriate program available for minor at CYA. The court explained:

[W]e have to be mindful of [minors] proclivity for involving himself with people who are definitely a bad influence and committing some very, very serious offenses. [] . . . notwithstanding the availability of another open placement, it is not appropriate at this time in the interest of the communitys safety to attempt to have [minor] rehabilitate in such an open setting where he might be led into further criminal activity before he completes his rehabilitation. [] [ROP] is in a remote area, but its also not immune from the escapes . . . .

On March 6, 2006, after the juvenile court received a memorandum from the probation officer indicating that there were appropriate programs available for minor at CYA, the court committed minor to CYA.

B.Standard of Review

Our review of a juvenile courts decision to commit a minor to CYA is deferential. The appellate court reviews a commitment decision for abuse of discretion, indulging all reasonable inferences to support the juvenile courts decision. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) There is no abuse of discretion where the commitment is supported by substantial evidence on the record. (In re Kevin F. (1989) 213 Cal.App.3d 178, 186; In re Tyrone O. (1989) 209 Cal.App.3d 145, 151.)

In determining the appropriate disposition for a ward of the juvenile court, the focus must be on both the need for public protection and the best interests of the minor. In arriving at a disposition, the court considers the probation officers report and any other relevant and material evidence that may be offered. ( 202, subd. (d); In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684.) The court may make a commitment to CYA without first trying less restrictive placements. (In re Asean D. (1993) 14 Cal.App.4th 467, 473.) [T]he 1984 amendments to the juvenile court law reflected an increased emphasis on punishment as a tool of rehabilitation, and a concern for the safety of the public. (Ibid.) Nonetheless, there must be evidence in the record demonstrating both a probable benefit to the minor by a CYA commitment and the inappropriateness or ineffectiveness of less restrictive alternatives. [Citations.] (In re Angela M., supra, 111 Cal.App.4th at p. 1396.)

C.Analysis

Under the abuse of discretion standard of review and in light of these principles, we cannot find an abuse of discretion in the decision of the juvenile court to commit minor to CYA. The record contains substantial evidence demonstrating the ineffectiveness of the less restrictive alternatives which had been tried, a probable benefit to minor, and potential safety for the public, from minors commitment to CYA.

Here, minor was almost 14 years old when he committed his most recent offenses ‑‑ first degree residential robbery, unlawfully taking a vehicle, and first degree residential burglary. Although minor was young, his criminal record revealed a pattern of progressively serious delinquent activity beginning with theft of personal property and ending with the burglary and robbery at gunpoint. The probation officer summarized minor as follows:

The minor is a young child who has completely embraced the criminal life-style and ideologies. He claims gang membership, and abuses a number of illegal substances. He has committed serious crimes at such a young age, and his offenses have escalated in seriousness and intent. His last offense involved using what appeared to be a gun and victimized a number of people[,] taking the security and peace of mind they had prior to his callous actions. The repercussions of his actions will be felt by his victims for many years[,] if not for the rest of their lives[,] and the minor [h]as shown no remorse or empathy toward them. The only regrets expressed by the minor are self-serving and egocentric in nature.

Moreover, in a supplemental report, the probation officer indicated that CYA has appropriate programming available for [minor]. He can continue his education, his high school education. He can receive gang awareness, substance abuse and anger management counseling and victim awareness classes.

Given these facts, the juvenile court was within its discretion in committing minor to CYA, even absent previous resort to less restrictive placement. (See In re Asean D., supra, 14 Cal.App.4th at p. 473.) In this case, however, minor also repeatedly had been given numerous opportunities to succeed both on probation and in local placement facilities; minor failed to do so. As noted previously, minor was first placed in Lodgemakers on October 15, 2004. Minor, however, did not adjust well to the program and left the facility for several hours without permission on one occasion. Minor was next placed in CTC. Six months later, minor left CTC without permission. Minor was subsequently placed in Corinthians Helping Hand group home on September 9, 2005. Less than a week later, minor left the placement without permission. Although the probation officer expressed her belief that minor would have a difficult time escaping from the ROP program because of its location, the court disagreed. The court indicated that although ROP is in a remote area, it is not immune from the escapes of AWOL; we all know that from past history.

Moreover, the record shows that the court considered the dual concerns of minors best interest and public protection. (See In re Jimmy P., supra, 50 Cal.App.4th at p. 1684;  202, subd. (a).) In committing minor to CYA, the court specifically found minors educational and treatment needs would be met, and that it would be in the communitys best interest to place minor in a secure facility. Furthermore, the court stated that CYA is the most appropriate disposition for this minor. The court went on to state that [w]eve considered the feasibility of a less restrictive confinement and find that inappropriate due to the propensity for AWOL, and it does appear that [minors] educational needs as well as his rehabilitative needs do need to be met by this disposition. In making these statements, the juvenile court demonstrated that it had considered and rejected other placement alternatives. (See In re Angela M., supra, 111 Cal.App.4th at p. 1396.)

Minors reliance on In re Aline D. (1975) 14 Cal.3d 557 and In re Todd W. (1979) 96 Cal.App.3d 408 is misplaced.

In In re Aline D., supra, 14 Cal.3d 557, the Supreme Court reversed a commitment to CYA on the grounds that the only basis upon which the commitment was made was that there was no other alternative placement for the minor. The court stated: The record before us reflects that the referee ordered the CYA commitment solely because there appeared to be no other available placement facility. (Id. at p. 559, italics added.) In addition, all parties interested in the disposition determined that a CYA commitment was inappropriate in that case. (Id. at p. 561.) The court concluded that lack of an alternative placement cannot be the sole determining factor in a CYA commitment. (Id. at p. 567.) Moreover, to base a CYA commitment on such is a violation of section 734s provision that the court must be fully satisfied that the commitment will probably benefit the minor.

Here, the juvenile court did not commit minor to CYA solely for one reason, such as that there was not an alternative placement from which he could not run. The court noted the alternative options, but found placement inappropriate under the circumstances of this case. Indeed, the instant case is similar to In re Gerardo B. (1989) 207 Cal.App.3d 1252, in which the court concluded that an expression of concern at a dispositional hearing in which a minor is committed to CYA will not necessarily support a conclusion that the court was not fully satisfied with the commitment. The court in Gerardo B. considered the programs at [C]YA, and observed that although [the minor] could suffer detriment, it felt that he was bright enough to choose the right option and benefit from the programs. (Id. at p. 1258.) In so doing, the juvenile court, while expressing concern over the commitment to CYA, considered other relevant factors and did not base the disposition solely on the lack of alternative placements.

Like the juvenile court in Gerardo B., the juvenile court in the instant case considered additional factors when committing minor to CYA. For instance, the court expressed the potential benefits to the minor from a CYA commitment such as minors educational needs. The court noted the additional need to commit minor to CYA because it is a locked facility, and minor had a proven history of running away. It is clear that, unlike the court in Aline D., the court in the instant case did not commit minor to CYA solely because there were no alternative placements. The court was fully satisfied that minor would benefit by the treatment provided by CYA.

Minors reliance on In re Todd W. is likewise misplaced. Todd W. and Aline D. were both decided before the amendment of section 202, which introduced protection of society and punishment as goals of the juvenile law. In any event, as stated above, minor is not simply a placement problem. Unlike the minor in Todd W., minor had a lengthy history of violent behavior. His current offenses included two serious offenses ‑‑ residential burglary and robbery.

The statutory scheme guiding the juvenile court in its treatment of juvenile offenders contemplates a progressively restrictive and punitive series of disposition orders in cases such as that now before usnamely, home placement under supervision, foster home placement, placement in a local treatment facility and, as a last resort, Youth Authority placement. (In re Aline D., supra, 14 Cal.3d at p. 564; see also In re Bryan (1976) 16 Cal.3d 782, 788.) Nonetheless, while CYA is considered a final treatment resource (In re Michael R. (1977) 73 Cal.App.3d 327, 337), there is no absolute rule that a Youth Authority commitment should never be ordered unless less restrictive placements have been attempted. (In re Ricky H. (1981) 30 Cal.3d 176, 183, superseded by statute on another ground as stated in In re Michael D. (1987) 188 Cal.App.3d 1392, 1396.) Instead, the record need only show, as it does here, probable benefit to the minor from commitment to CYA and less restrictive alternatives were considered and rejected. (In re George M. (1993) 14 Cal.App.4th 376, 379; In re Teofilio A. (1989) 210 Cal.App.3d 571, 576.)

The court articulated reasonable concerns for the community and minors rehabilitation, concerns that can only be addressed by CYA given minors history and current offenses. Minors arguments to the contrary are to no avail. We thus conclude the juvenile court did not abuse its discretion by committing minor to CYA.

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Hollenhorst

Acting P.J.

/s/ Miller

J.

Publication Courtesy of San Diego County Legal Resource Directory.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] In an immense reorganization of California corrections in 2005, CYA became the Juvenile Justice Division within the Department of Corrections and Rehabilitation. (Gov. Code,  12838, 12838.3.) For the sake of clarity, we will refer to the Juvenile Justice Division as CYA.

^[3]Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].