Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J07-00181
SIMONS, J.
Defendant Rodney S. appeals from a dispositional order committing him to the Division of Juvenile Facilities (DJF) for a maximum confinement of seven years after he admitted committing assault with a deadly weapon and infliction of great bodily injury. (Pen. Code, §§ 245, subd. (a), 12022.7. subd. (a); Welf. & Inst. Code, § 602.) Appellant contends the juvenile court erred in declining to take judicial notice of documents relating to a court decree identifying problems at DJF, and abused its discretion in committing him to DJF because the commitment will not benefit him. We reject the contentions and affirm.
One count of attempted murder with personal infliction of great bodily injury and personal use of and discharge of a firearm was dismissed. (Pen. Code, §§ 664, 187, 12022.7, subd. (a), 12022.53, subd. (d).)
The background facts are taken from the probation report.
On the evening of September 11, 2006, brothers Jackie and Janae Walker were shot and critically wounded. Janae’s girlfriend, an eyewitness to the shootings, said she saw a 16-year-old Black male, later identified as appellant, and another person described as a “dope fiend.” Janae and Jackie confronted appellant and asked him what he was doing and whether he was “selling dope in [their] neighborhood.” After appellant answered in the negative, Janae asked him more loudly, what he was doing there. Appellant then pulled a gun from his waist area and started shooting, firing about three or four shots. Janae fell to the ground and appellant took off running and shooting backward. A cell phone found at the scene was used to locate appellant, who matched the description of the shooter given by the victims and Janae’s girlfriend. Further investigation led to an interview with another witness to the shooting who said he was purchasing crack cocaine from appellant when Janae confronted appellant and demanded “all that he had.”
Solely for convenience we refer to the Walker brothers individually by their first names. No disrespect is intended.
Upon his arrest, appellant initially denied any knowledge of the crime. He then said three men surrounded him, one told him to give him all he had, started going through his pockets, then punched him. Appellant said he pulled a gun from his back pocket and fired at the group, then took off running.
DISCUSSION
I. Judicial Notice
Appellant claims the juvenile court erred in declining to take judicial notice of the December 2006 “Third Report of Special Master” (Report) regarding DJF compliance with a November 2004 consent decree issued in Farrell v. Hickman (Super. Ct. Alameda County, 2004, No. RG03079344) (Farrell), an Alameda County taxpayer’s action challenging allegedly illegal policies, procedures and practices at DJF. The Report concerned “developments in [the Farrell] case through September 2006, with updates in the areas covered through November 2006.” The Report addressed remedial plans covering deficiencies identified in 2003 in the areas of safety and welfare, education, medical care, mental health, sex behavior treatment, and access for wards with disabilities.
The Farrell case was previously entitled Farrell v. Allen.
At the April 27, 2007 dispositional hearing, the prosecutor stated that the parties had stipulated to the court’s consideration of the March 2006 testimony by Daniel Macallair, executive director of the Center on Juvenile and Criminal Justice, in In re Clarence W. (Super. Ct. Contra Costa County, 2006, No. J05-01334), regarding youth treatment programs at DJF. Defense counsel asked the court to judicially notice the Report under Evidence Code section 452, on the ground that it was “associated with pending litigation in the courts in California.” The court declined the request on the ground that the Report was hearsay, not subject to any hearsay exception.
All further section references are to the Evidence Code.
Appellant contends the court’s refusal to judicially notice the Report was an abuse of discretion because the court erred in ruling the Report was hearsay, and the court was required to take judicial notice of the Report under section 452, subdivisions (d) and (h). We analyze the judicial notice and hearsay questions separately.
Subdivision (d) of section 452 allows for judicial notice of “[r]ecords of . . . any court of this state.”
First, the Report is not a proper subject for judicial notice under section 452, subdivision (h). “ ‘Judicial notice under . . . section 452, subdivision (h) is intended to cover facts which are not reasonably subject to dispute and are easily verified. These include, for example, facts which are widely accepted as established by experts and specialists in the natural, physical, and social sciences which can be verified by reference to treatises, encyclopedias, almanacs and the like or by persons learned in the subject matter. [Citation.]’ [Citation.]” (People v. Jones (1997) 15 Cal.4th 119, 171, fn. 17, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Although appellant asserts that the Report contains propositions and facts not reasonably subject to dispute, the Report itself concedes that disputes may arise concerning the remedial plans discussed in the Report.
Second, under section 452, subdivision (d), the existence of any document in a court file may be judicially noticed. And the Report is such a document. However, appellant never contends that the mere existence of the Report in a court file is relevant to the issues in this case. As the trial court apparently recognized, unless the substance of the report is admissible, judicial notice should be denied. In Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1562-1569, the court held that statements contained in a court record are hearsay and inadmissible in the absence of a valid hearsay exception. Appellant never addresses this issue, and we discern no valid hearsay exception. The trial court properly exercised its discretion in refusing to judicially notice the Report.
II. Commitment to DJF
Appellant also contends his DJF commitment violated his rights to due process because there was no substantial evidence of its probable benefit to him.
The probation report prepared for the disposition hearing stated that appellant was rejected for placement at the Orin Allen Youth Rehabilitation Facility due to his gun use in committing the instant offense. He was accepted by Fouts Springs and an urban area program, but the placement supervisor determined he was not deemed appropriate for residential placement. The probation report stated that appellant shot at close range and seriously wounded the two victims. It “strongly disagreed” with the Alameda County probation fitness report which stated appellant’s level of criminal sophistication was “relatively low.” The probation report stated the offense involved great violence and great bodily harm, appellant was armed with and used a handgun, and was selling drugs indicating planning and sophistication. In mitigation, it noted that appellant had prior felony arrests for robbery and possession of marijuana for sale, but no prior true findings, and the victims had been previously convicted of drug-related crimes and may have been challenging appellant. It also noted that appellant took minimal responsibility for the offense and expressed no remorse for the victims.
The probation report stated, “[f]or the protection of the community, as well as for the punishment and rehabilitation of the minor, he must be placed in a secure setting removed from the community. The [DJF] offers the only such option. [¶] While at the [DJF], the minor will be contained in a secure, highly structured, and closely supervised environment. He will be able to complete his high school education and to participate in counseling to address substance abuse, the impact of crime on its victims, and other socialization and decision making skills. Hopefully, he will take this opportunity to . . . rethink his situation. He appears to be a fairly intelligent young man and could do something positive with his life.”
The court gave the following reasons for agreeing with the probation department’s recommendation and ordering appellant committed to DJF: “Public safety, first and foremost, requires that I do it. Although unlocked ranches, too, have accepted him, I have had a number of minors run from those ranches. [T]he offense is so serious . . . the victims have profound, lifelong injuries because of [appellant’s] choice. [¶] I don’t find that [appellant] was fully accepting of his responsibility here in the statement. . . . [¶] I do think it will be rehabilitative for him to be in the [DJF] because he can get services in that kind of locked facility. He can go to school. He can get the victim impact. He can get the gang awareness. He can get all those other services while he’s there.” The court also found the offense was sophisticated because appellant was drug dealing with a gun, this was not appellant’s first drug-dealing experience and he had “somewhat of” a drug-dealing history. The court noted he had a loving family, had done well in juvenile hall and was a “bright young man.” The court stated it had “considered all local, less restrictive programs and forms of custody and [was] fully satisfied that they are inappropriate dispositions at this time and that [appellant] can better benefit from the various programs provided by the . . . [DJF]. His mental and physical condition and qualifications are such as to render it probable that he will benefit from the reformatory, educational, discipline, or other treatment provided by DJF.”
Relying on Macallair’s testimony that the general conditions at DJF remain substandard, with a likely 10-year period before all necessary improvements are complete, appellant argues that his due process rights were violated given DJF’s admission that it does not have the facilities, staff, or programs to provide him adequate care, and there is no substantial evidence of probable benefit from the DJF placement.
“The appellate court reviews a commitment decision for abuse of discretion, indulging all reasonable inferences to support the juvenile court’s decision. [Citations.] Nonetheless, there must be evidence in the record demonstrating both a probable benefit to the minor by a [DJF] commitment and the inappropriateness or ineffectiveness of less restrictive alternatives. [Citations.] A [DJF] commitment may be considered, however, without previous resort to less restrictive placements.” (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.)
We review the DJF commitment order in light of the purpose of the juvenile delinquency laws, which “is twofold: (1) to serve the ‘best interests’ of the delinquent ward by providing care, treatment, and guidance to rehabilitate the ward and ‘enable him or her to be a law-abiding and productive member of his or her family and the community,’ and (2) to ‘provide for the protection and safety of the public . . . ’ ” (In re Charles G. (2004) 115 Cal.App.4th 608, 614-615.) “To accomplish these purposes, the juvenile court has statutory authority to order delinquent wards to 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 [the juvenile court law] . . . .’ ” (Id. at p. 615.) “Under [Welfare and Institutions Code] section 202, juvenile proceedings are primarily ‘rehabilitative’ (id., subd. (b)), and punishment in the form of ‘retribution’ is disallowed (id., subd. (e)). Within these bounds, the court has broad discretion to choose probation and/or various forms of custodial confinement in order to hold juveniles accountable for their behavior, and to protect the public,” including commitment to DJF. (In re Eddie M. (2003) 31 Cal.4th 480, 507.) “Given these aims, and absent any contrary provision, juvenile placements need not follow any particular order under [Welfare and Institutions Code] section 602 and section 777, including from the least to the most restrictive. [Citations.] Nor does the court necessarily abuse its discretion by ordering the most restrictive placement before other options have been tried. [Citations.]” (Ibid.)
We conclude the court’s finding that appellant will probably benefit from a DJF commitment is amply supported by the record. As explained in the probation report, at DJF appellant will be able to complete his high school education, participate in counseling to address his substance abuse, the impact of his crime on its victims, and other socialization and decision-making skills. In addition, the court properly considered public protection and the personal accountability of appellant as factors in making its DJF placement decision. As noted by the court, appellant’s offense was “so serious” and resulted in “profound, lifelong injuries” to the victims. And, the court could reasonably conclude that appellant had not personally accounted for his criminal actions. The court could reasonably conclude that the circumstances of appellant and his offenses outweighed Macallair’s general testimony regarding the problems at DJF and that appellant and the public would benefit from appellant's placement in a secure facility where he would have an opportunity for rehabilitation. No abuse of discretion or due process violation from the court’s decision committing appellant to DJF has been demonstrated.
Disposition
The order is affirmed.
We concur. JONES, P.J. STEVENS, J.
Retired Associate Justice of the Court of Appeal, First District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Subdivision (h) of section 452 allows for judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.”