Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County No. JW117808-00. Peter A. Warmerdam, Juvenile Court Referee.
Catherine Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Wanda Hill Rouzan, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Gomes, J., and Dawson, J.
Appellant I.A., a minor, admitted an allegation, set forth in a juvenile wardship petition (Welf. & Inst. Code, § 602), that she committed second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)). At the subsequent disposition hearing, the juvenile court adjudged appellant a ward of the court, ordered her committed to the Division of Juvenile Facilities (DJF) and declared her maximum term of physical confinement (MTPC) to be five years.
Except as otherwise indicated, all statutory references are to the Welfare and Institutions Code.
The juvenile court stated appellant was committed to the “Division of Juvenile Justice” of the California Department of Corrections and Rehabilitation. No entity with the designation “Division of Juvenile Justice” exists, but our review of the relevant statutes indicates the following. In 2005, the Department of Corrections and the California Youth Authority (CYA) ceased to exist, and the CYA’s “powers, functions, duties, responsibilities, obligations, liabilities, and jurisdiction” were taken over by the newly created Department of Corrections and Rehabilitation (Gov. Code, § 12838.5); the constituent parts of this newly created department include an entity designated not “Division of Juvenile Justice,” but simply “Juvenile Justice” (Gov. Code, § 12838.5); that entity consists of various entities including the Division of Juvenile Facilities (Gov. Code, § 1238.3); effective July 1, 2005, any reference in any code to the CYA refers to the DJF (§1710, subd. (a), see also § 1000); and the DJF is referenced in statutes, such as sections 731 and 733, that formerly referred to the CYA. Accordingly, we will use the name DJF for the entity to which the court ordered appellant committed.
On appeal, appellant contends (1) the court abused its discretion in ordering appellant committed to the DJF, and (2) in setting the MTPC, the court failed to exercise its discretion under section 731, subdivision (b) (section 731(b)). We will affirm.
FACTUAL BACKGROUND
The Instant Offense
Mayra Moreno, age 20, told police the following. On the night of May 14, 2008, she was leaving her boyfriend’s apartment when appellant approached her and asked for a ride to a nearby convenience store. Moreno consented, but when she approached the store, appellant stated that “[her] uncle ain’t here,” and told Moreno to “keep driving.” At that point, appellant “produced a small semi-automatic handgun from her purse and ordered [Moreno] to pull over.” Appellant demanded that Moreno turn over her car, money and jewelry. Moreno handed over a gold ring, but stated she had no money. Appellant accused Moreno of lying, and said, “you are lucky I don’t kill you, but you seem like a nice girl, so you can live. You can keep your phone too, so you can call for a ride home.” Appellant then drove off in Moreno’s car.
When police officers arrived on the scene in response to the report of an auto theft, they saw Moreno’s car being driven away at a high rate of speed without its headlights on. The driver was later identified as appellant. The officers “attempted to enforce a traffic stop,” but “were unable to catch up with the car.” Appellant “eventually” came to a stop in the parking lot of an apartment complex, striking a parked car as she did so. At that point, appellant, the sole occupant of the car, got out and fled on foot.
The officers followed and “eventually” encountered appellant, who was standing in front of an apartment with two persons, one of whom (Witness 1) told police the following. He was inside his apartment when he heard a “loud crashing sound,” and appellant calling for help, yelling that someone had raped her. Witness 1 allowed appellant to come inside his apartment, where she used the telephone to call her sister. At that point, Witness 1 became suspicious and told appellant to wait outside. He too exited the apartment, at which point he saw the officers and made contact with them.
The officers searched appellant’s purse and found a black BB gun. Appellant told the officers the following. “‘[S]ome guy in a blue suit’ was chasing her and she needed to get away,” so she “asked for [Moreno’s] help.” Moreno thought appellant was going to take her belongings, and refused to help, so appellant “had to take [Moreno’s] shit to save [her]self.”
Appellant denied pointing the gun at Moreno and said “she only kept it in her purse to ‘shoot pigeons.’” Appellant claimed “she never robbed [Moreno],” and Moreno “just gave [her the car] [be]cause [Moreno knew appellant] needed help.” Appellant “then became uncooperative and refused to answer questions,” addressing the officers with a racial epithet.
On the way to Juvenile Hall appellant “continually sang songs regarding her crime.” She sang, “‘just another day in the hood, taking their cars and stealing their goods.’” She also referred to herself and her sister as being “involved in ‘jacking fools.’”
When interviewed on May 30, 2008, appellant told the probation officer the following. On the night she took Moreno’s car, a man “began to say lewd things to her and began to chase her.” Moreno refused to help her, so appellant “showed her the gun,” at which point Moreno gave appellant permission to “take the car.” Appellant drove recklessly and at a high rate of speed because the man was still chasing her. She “did not think her actions were wrong,” because “she was simply trying to get away from” her pursuer. She “[did] not think the crime is ‘that big of a deal,’ because the gun was a BB gun, [and] it was not loaded ....” She did not point the gun at Moreno nor did she demand the victim’s car or jewelry. Appellant was “unsure of a fair consequence for her actions, but ... she does not think she should ‘get anything too harsh,’ because she has never been in trouble before and the crime was not that serious in nature.” Appellant asserted that “if the victim had called the police, [appellant] would not have taken the victim’s belongings.”
Additional Background
Appellant lives with her sister. Appellant’s sister told the probation officer that she (appellant’s sister) “believes [appellant] has issues stemming from her mother and brother’s death, as she never received any counseling.”
Appellant was 17 years old at the time of the instant offense, and had attended high school for three years. Her grade point average, which was 3.14 when she was a freshman, was, in the most recent school year, 1.2. The probation officer also spoke with appellant’s aunt, who, along with appellant’s sister, reported that appellant was “usually very good,” but was “acting out of character.” School records indicate appellant “has received behavior referrals for getting into a confrontation with a teacher, for attendance, and for being involved in mutual combat.”
The probation officer discussed with appellant’s sister and aunt whether “probation, Juvenile Court Work Program, and counseling” would be an “appropriate disposition.” The two women indicated they felt appellant “may need a commitment program because when she was in Court she laughed and giggled throughout the entire hearing.”
The probation officer stated: “When determining an appropriate disposition in this matter, [she] took into account the seriousness of the minor’s criminal conduct, her refusal to admit culpability in this offense, her unwillingness to empathize with the victim, as well as her great need for long term services. [¶] A commitment to the Pathways Academy was considered for the minor. However, due to the egregious nature of the offense, the minor’s criminal sophistication, [as indicated by the fact that in committing the] theft she used a simulated firearm ..., it is felt Pathways is not appropriate. The minor poses a serious risk to the community and Pathways Academy cannot provide the length of commitment, array of services or intensity of services to successfully rehabilitate the minor to the point where she can legitimately be returned to the community without posing a risk thereto.” Pathways Academy “would not be able to address all the issues the minor may be struggling with, such as the loss of her mother and brother, her inability to accept responsibility for her actions or sympathize with and have empathy for her victim. Due to [the] short duration [of the Pathways program], as well as its limited counseling services, the minor would receive neither the type of counseling that would most benefit her nor the frequency needed to rehabilitate her ....”
The probation officer further stated: “The minor’s case was screened with the Intake and Court liaison ..., who verified if the minor were committed to [the DJF], they would be able to provide the services necessary for her rehabilitation ....” “[U]pon intake [at the DJF], the minor would undergo a battery of surveys and tests, which will allow [the DJF] to determine the minor’s individual needs. Once her needs are identified, an individualized ‘change plan’ will be formulated. This plan will incorporate the types of counseling the minor should participate in, as well as other services needed for her rehabilitation, such as mental health, substance abuse, anger management, and impact of crimes on victims counseling. In this way, the commitment to [the DJF] would specifically address the minor’s needs and all services would be tailored to her situation .... The minor would be afforded the opportunity to complete high school and even obtain higher education, while detained. [DJF] offer[s] numerous vocational training services in order to prepare her to return to the community, so she has skills necessary to obtain a job and succeed. If deemed necessary, the minor could also receive services through the mental health treatment program.”
DISCUSSION
Commitment to DJF
Appellant contends the court abused its discretion in ordering DJF commitment. This contention is without merit.
Commitment to the DJF requires a two-part showing. First, “it is required that there be evidence in the record demonstrating probable benefit to the minor ....” (In re Teofilio A. (1989) 210 Cal.App.3d 571, 576; accord, In re Pedro M. (2000) 81 Cal.App.4th 550, 556.) Second, there must be “evidence supporting a determination that less restrictive alternatives are ineffective or inappropriate.” (In re Teofilio A., supra, at p. 576.) An appellate court will not lightly substitute its judgment for that of the juvenile court but rather must indulge all reasonable inferences in favor of the decision and affirm the decision if it is supported by substantial evidence. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396; In re Asean D. (1993) 14 Cal.App.4th 467, 473.)
“‘In determining whether there was substantial evidence to support the commitment, we must examine the record presented at the disposition hearing to support the commitment in light of the purposes of the Juvenile Court Law. (§ 200 et seq. ...)’” (In re Lorenza M. (1989) 212 Cal.App.3d 49, 53.) “In 1984, the Legislature amended the statement of purpose found in section 202 of the Welfare and Institutions Code. It now recognizes punishment as a rehabilitative tool and emphasizes the protection and safety of the public.” (Id. at p. 57, fn. omitted.) This recognition marked a “change in emphasis,” the “significance [of which] is that when we assess the record in light of the purposes of the Juvenile Court Law [citation] we evaluate the exercise of discretion with punishment and public safety and protection in mind.” (Id. at p. 58; accord, In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684 [“[a] fundamental premise of delinquency adjudication is that the court must focus on the dual concerns of the best interests of the minor and public protection”]; In re Asean D., supra, 14 Cal.App.4th at p. 473 [“the 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”].) And while the juvenile court law contemplates a progressively restrictive and punitive series of dispositions, there is no absolute rule that the court may not impose a particular commitment until less restrictive placements have actually been attempted. (In re Asean D., supra, 14 Cal.App.4th at p. 473; In re Teofilio A., supra, 210 Cal.App.3d at p. 577.)
Section 202 provides in relevant part: “Minors under the jurisdiction of the juvenile court as a consequence of delinquent conduct shall, in conformity with the interests of public safety and protection, receive care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances. This guidance may include punishment that is consistent with the rehabilitative objectives of this chapter.” (§ 202, subd. (b), italics added.)
At least two factors support the conclusion that a disposition less restrictive than DJF commitment would be ineffective or inappropriate because a placement less restrictive than the DJF would not be adequate to hold appellant accountable for her actions and/or provide for the safety and protection of the public. First, appellant stands adjudicated of a serious offense. (In re Tyrone O. (1989) 209 Cal.App.3d 145, 152 [“circumstances and gravity of the minor’s offense are always considerations in determining his proper disposition”]; § 725.5 [factors to consider in determining appropriate disposition include “the circumstances and gravity of the offense committed by the minor”].) And second, the court reasonably could have concluded, based on appellant’s statements to the probation officer, that appellant has failed to take responsibility for her actions and has exhibited little or no remorse or empathy for the victim of the instant offense. (Cf. In re Asean D, supra, 14 Cal.App.4th at p. 473 [minor’s commitment to Youth Authority upheld where his “continuing refusal ... to take responsibility for his crimes[] clearly signaled that he constituted a serious danger to the public unless securely confined”]; In re Michael D. (1987) 188 Cal.App.3d 1392, 1397 [minor’s “unrepentant and cavalier attitude” regarding his offense supported Youth Authority commitment].)
Substantial evidence also supports the conclusion that commitment to the DJF would be of probable benefit to appellant. The juvenile court reasonably could credit the probation officer’s uncontradicted statements that DJF commitment would enable appellant to receive an individualized assessment and, based on that assessment, appropriate counseling, education and, if necessary, mental health services. Moreover, as demonstrated above, the juvenile court law specifically acknowledges that punishment can aid in a minor’s rehabilitation by holding him or her accountable. The foregoing establishes that the court reasonably could conclude that DJF commitment would benefit appellant.
Appellant attacks the juvenile court’s implied finding that DJF commitment would be of probable benefit to appellant on the ground that the RPO does not indicate what specific programs would be available to appellant at the DJF. We are aware of no requirement that the RPO contain this level of specificity. The information summarized above constitutes substantial evidence that DJF commitment would be of probable benefit to appellant.
Appellant also argues that the probation officer did not, in either the RPO or his remarks at the disposition hearing, provide the court with any “substantive information” regarding consideration of dispositions less restrictive than DJF commitment, and therefore the court failed in its duty to consider such alternative dispositions. We disagree.
The RPO demonstrates that the probation officer considered both non-commitment alternatives and commitment to a local program, Pathways Academy. The RPO further demonstrates that, in the probation officer’s opinion, “length of commitment” and the “array” and “intensity” of services offered in that program, and therefore perforce in any non-commitment alternative, were not sufficient to either meet appellant’s rehabilitative needs or provide adequate protection for the public. The court read and considered the RPO. We are aware of no requirement the record contain references to all possible less restrictive alternatives or a specific explanation as to why either the probation officer or the court considered those alternatives inappropriate and/or likely to be ineffective. Here, the record supports the conclusion that the court properly considered alternatives less restrictive than DJF. (Compare In re Teofilio A., supra, 210 Cal.App.3d at pp. 574-575, 577 [CYA commitment reversed where record failed to show probation officer considered any less restrictive alternatives].)
Appellant also argues that the court abused its discretion in ordering DJF commitment because appellant is the kind of “mildly delinquent unsophisticated youth” for whom DJF is “not appropriate.” There is no merit to this contention.
We recognize that “‘[t]he courts have persistently 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.’” (In re Teofilio A., supra, 210 Cal.App.3d at p. 577.) This concern can be traced back to In re Aline D. (1975) 14 Cal.3d 557, where our Supreme Court noted that Youth Authority guidelines include the following “‘inappropriate cases’ for commitment[:] ... unsophisticated, mildly delinquent youths, ‘for whom commingling with serious delinquents who make up the bulk of the Youth Authority population might result in a negative learning experience ....’” (Id. at pp. 564-565.) However, as this court noted in In re Lorenza M, supra, 212 Cal.App.3d at page 57, Aline D. “predate[s] the amendment of former Welfare and Institutions Code section 502 (now § 202)” which, as indicated above, “now recognizes punishment as a rehabilitative tool and emphasizes the protection and safety of the public.”
In In re Lorenza M., supra, 212 Cal.App.3d 49, the juvenile court ordered a young, mildly delinquent minor committed to the Youth Authority, following an adjudication of vehicle theft, after the court found that such commitment would be of probable benefit and that “‘all local less restrictive programs and forms of custody [would be] ... inappropriate dispositions ....’” (Id. at p. 52.) This court upheld the disposition. Referring to “the use of punishment as a rehabilitative tool,” as provided in the 1984 amendment to the Juvenile Court law, and noting that Aline D. predated the amendment, we stated, “whether or not Lorenza is a serious juvenile offender or a ‘criminal,’ her commitment is consistent with the current purposes of the Juvenile Court Law.” (Id. at p. 58.) Appellant’s conduct was far more serious than that of the minor in Lorenza M. As in Lorenza M., appellant’s conduct justified the court’s implied finding that based on considerations of public safety and the statutorily sanctioned use of punishment as a rehabilitative tool, a disposition less restrictive than DJF was not appropriate.
Appellant also argues the court abused its discretion because, she asserts, numerous “mitigating circumstances” establish that commitment to DJF was an unduly “[h]arsh” disposition for a first-time offender. (Emphasis omitted.) Specifically, appellant cites the death of her mother and brother, and her “prior record of scholarship, good behavior and absence of criminality.” These factors may militate in favor of a disposition less restrictive than DJF, but they do not compel such a result. In In re Reynaldo R. (1978) 86 Cal.App.3d 250, 256 this court held that the juvenile court did not abuse its discretion in committing the minor to the Youth Authority, stating, “[t]he minor’s record, although justifying a less restrictive disposition, was sufficient for a finding of probable benefit to the minor by a Youth Authority commitment.” In the instant case, even if a less restrictive alternative was justified, there was, as demonstrated above, substantial evidence that any less restrictive alternative would be inappropriate and/or ineffective, and that DJF commitment would be of probable benefit to appellant. Therefore, the court did not abuse its discretion in ordering appellant committed to DJF.
Finally, appellant argues that Pathways Academy and another local program, Avenues of Change, would have met appellant’s rehabilitative needs. For the factual bases of these claims, appellant cites to information contained, she asserts, on the Kern County Probation Department web site. We do not doubt this assertion, but none of this material was presented to the juvenile court, and therefore it was not considered by the court below or made part of the record on appeal. Therefore, this information is not properly before us, and we may not consider it. (People v. Barnett (1998) 17 Cal.4th 1044, 1183 [“[O]ur review on a direct appeal is limited to the appellate record”].)
Exercise of Section 731(b) Discretion
Appellant contends the court erroneously failed to exercise its discretion under section 731(b) in setting the MTPC.
In order to address this contention, we find it useful to examine the interplay between sections 726 and 731. Section 726, subdivision (c) provides, in pertinent part, that “if the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court.” (Emphasis added.) This subdivision goes on to provide, in pertinent part and subject to exceptions not relevant here, that the “maximum term of imprisonment,” as that phrase is used in section 726, is, for a felony, the longest of the three periods prescribed for the offense. (In re Eric J. (1979) 25 Cal.3d 522, 536-538.)
Section 731 pertains to commitments to the DJF. Section 731(b) long provided that a minor may not be committed to the CYA, a “predecessor entit[y]” (Gov. Code, § 12838.5) of the Department of Corrections and Rehabilitation, of which the DJF is a part, for a period in excess of the maximum period of imprisonment for an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court. And effective January 1, 2004, that statute was amended to add the following sentence: “A minor committed to [the DJF] also may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court, which may not exceed the maximum period of adult confinement as determined pursuant to this section.”
See footnote 2, ante, page 2.
Thus, taken together, sections 726 and 731 require the juvenile court to make two distinct determinations when committing a minor to the DJF. First, section 726 directs the juvenile court, generally, “to determine the maximum term of imprisonment by choosing the longest period of incarceration applicable to an adult offender .... (§ 726, subd. (c).)” (In re Carlos E. (2005) 127 Cal.App.4th 1529, 1538.) Second, while retaining this requirement, section 731 requires, in addition, that the court set a “maximum term of physical confinement” in the DJF. (Ibid.) Further, as this court held in Carlos E., section 731 requires that in making the latter determination, the court exercise its discretion, “‘based upon the facts and circumstance of the matter ... which brought ... the minor under the jurisdiction of the juvenile court.’” (Ibid.) This maximum may not be more than the “maximum term of imprisonment” under section 726, but it may be less. (Id. at p. 1542.) The First and Third District Courts of Appeal came to the same conclusions in In re Sean W. (2005) 127 Cal.App.4th 1177 and In re Jacob J. (2005) 130 Cal.App.4th 429, respectively. These holdings represent a major departure from the prior, long-established rule that a minor’s maximum period of physical confinement was necessarily the maximum term that could be imposed on an adult offender. (In re Carlos E., supra, 127 Cal.App.4th at pp. 1534-1537.)
There is no dispute that the MTPC declared by the court--five years--is equal to the section 726 “maximum term of imprisonment” for the instant offense. (Pen. Code, § 213, subd. (a)(2) [upper term for second degree robbery is five years].) There is also no dispute as to the principles summarized above, and that therefore the court had the discretion under section 731(b) to declare an MTPC of less than five years. The parties part company, however, on the question of whether the court failed to exercise that discretion.
As best we can determine, appellant’s contention that the juvenile court failed to do so is based, in turn, on the contention that “the juvenile court gave no indication that it believed it had discretion to set the maximum confinement time at anything lower than the maximum term pursuant to [Penal Code] section 213, subdivision (a)(2).” The record, however, belies this claim.
The Third District Court of Appeal held in In re Jacob J., supra, 130 Cal.App.4th at page 438 that the record must reflect that the juvenile court considered the facts and circumstances of the case in setting the MTPC. The Sixth District disagreed, and held an appellate court faced with a silent record should apply normal principles of appellate review and presume the juvenile court properly exercised its discretion under section 731. (In re Julian R. (2007) 156 Cal.App.4th 1404, 1416.) The California Supreme Court granted review of In re Julian R. (In re Julian R., 68 Cal.Rptr.3d 381, review granted Feb. 27, 2008, S159282.) We find it unnecessary to decide which view is correct because the record before us adequately reflects the juvenile court considered the facts and circumstances.
At the disposition hearing, the juvenile court stated: “The available confinement time is five years, less 30 days credit for time served. [¶] The Court has considered the facts and circumstances of this offense -- [¶] ... [¶] ... -- and indicates the maximum confinement time should be set at five years.” (Italics added.) The court’s references to “available confinement time” and “maximum period of confinement” indicate the court understood it had two distinct determinations to make. And the court’s use of the language of section 731(b), i.e., its reference to “facts and circumstances” in the context of declaring the MTPC, indicates the court was aware of the discretion granted by the statute. As indicated above, prior to the 2004 amendment to section 731(b), the maximum term of imprisonment and the MTPC were necessarily the same, regardless of the facts and circumstances of the offense(s) of which the minor had been adjudicated. The court would have no occasion to consider “facts and circumstances” in the context of setting the MTPC other than in the exercise of its discretion under section 731(b). Thus, the record, in our view, demonstrates the court (1) was aware of the scope of its discretion and (2) exercised that discretion.
DISPOSITION
The judgment is affirmed.