Opinion
F078518
12-04-2019
In re J.F., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.F., Defendant and Appellant.
Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Amanda D. Cary and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JJD069751)
OPINION
THE COURT APPEAL from an order of the Superior Court of Tulare County. Juliet Boccone, Judge. Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Amanda D. Cary and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
-ooOoo-
Minor J.F. contends on appeal the juvenile court abused its discretion when it committed him to the Department of Juvenile Justice (DJJ) because the record lacks substantial evidence of both a probable benefit to minor at DJJ and the inappropriateness or ineffectiveness of less restrictive alternatives. We affirm.
We note that "DJJ is also known as the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF). DJJ/DJF is the current name of the former California Youth Authority. [Citation.] The terms DJJ and DJF are used interchangeably in the case law." (In re N.C. (2019) 39 Cal.App.5th. 81, 85, fn. 3.)
BACKGROUND
On April 25, 2016, a juvenile wardship petition was filed pursuant to Welfare and Institutions Code section 602, alleging 14-year-old minor had committed misdemeanor assault or battery on school grounds (Pen. Code, § 243.5, subd. (a)(2)) and misdemeanor petty theft (§ 484, subd. (a)). Minor admitted the petition.
All statutory references are to the Penal Code unless otherwise noted.
On July 28, 2016, the juvenile court placed minor on informal probation.
On January 24, 2017, minor was found to have violated his informal probation.
On February 15, 2017, minor was placed on home supervision.
On April 21, 2017, at his junior high school, 15-year-old minor yelled at a victim, a former friend whom minor now considered an enemy due to their opposing gang associations. The victim denied making derogatory comments about minor and told him he did not want to fight. Minor began punching his head with closed fists. The victim did not fight back because he did not want to get in trouble. School staff stopped the attack. Minor told the responding officer he was a southern gang member and did not want to be disrespected. At the detention facility, he again admitted he was a southern gang member. Minor was expelled from school.
On July 10, 2017, a victim waited outside a food store while his friend went inside. Minor and two cohorts arrived and attacked the victim by punching him in the face. The victim fell to the ground. Minor kicked his face and the two cohorts kicked and stomped on him. As the three suspects left, they attempted to run over the victim with a vehicle. A police chase ensued and the suspects were arrested. They all associated with southern gangs and at least one of the two cohorts was a known gang member.
On July 13, 2017, a juvenile wardship petition was filed pursuant to Welfare and Institutions Code section 602, alleging minor had committed misdemeanor assault or battery on school grounds (§ 243.5, subd. (a); count 1), misdemeanor petty theft (§ 484, subd. (a); count 2), felony assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count 3), and misdemeanor violation of a court order and a street gang injunction (§ 166, subd. (a)(9); count 4).
On August 17, 2017, minor admitted counts 1 and 3. The remaining counts were dismissed. Minor was released on electronic monitoring.
On October 2, 2017, the probation officer filed a report recommending probation at home.
At the dispositional hearing on October 5, 2017, the juvenile court declared minor a ward of the court. The court noted that minor's felony assault (count 3) was very serious and "obviously a DJJ eligible offense," but the court decided to give minor a chance to reform locally. The court said it strongly considered a custodial program but decided to give minor his "one and only chance," putting a note to that effect in his file. The court placed him on probation in his mother's custody with various terms and conditions, encouraging him to take probation seriously and work hard at it.
On September 7, 2018, minor, now 16 years old, went for a ride in a stolen Honda and smoked marijuana with two cohorts, one a southern gang associate and the other a southern gang member. Minor was armed with a .22-caliber handgun and a .38-caliber handgun. The three suspects came upon a victim who was parked in front of a coworker's house, waiting to carpool to work. Minor gave one of his cohorts a gun and they both got out of the car. One of them tapped the window with a gun and demanded the victim exit his vehicle. The victim complied and saw minor and his cohort pointing guns at him. They yelled at him to give them his money or they would shoot him. The victim was afraid and believed he would be killed if he failed to comply. They told him to throw his wallet into their car and he complied. Minor later admitted he "believe[d] he would have shot [the victim] if he did not cooperate." The two cohorts left and one of them yelled, " 'bulldogs.' " Minor got into the victim's car and drove it about 50 feet, not realizing the emergency brake was engaged. He abandoned the car and fled on foot until his cohorts picked him up.
The cohorts in this incident were different than in the prior incident.
The responding officer spotted the stolen Honda and commenced pursuit, following as it traveled at 70 to 80 miles per hour through the streets of Selma and failed to stop at posted stop signs. Other officers joined the pursuit. Minor told his cohort not to stop for the police. The Honda eventually stopped at an apartment complex and the suspects fled. The Honda was still in gear and it rolled into a parked car. Officers found the victim's wallet in the backseat and set up a search perimeter. One cohort was found hiding in a nearby shed, and minor and the other cohort were found hiding in the patio of an apartment. Minor was wearing a gang-colored bandana around his neck. The two guns were lying on the ground next to him. Both guns were loaded and one contained a chambered round. Minor later admitted the guns were his.
On September 10, 2018, a juvenile wardship petition was filed pursuant to Welfare and Institutions Code section 602, alleging minor had committed four felonies: second degree robbery (§ 211; count 1), attempted carjacking (§§ 664, 215, subd. (a); count 2), unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a); count 3), and receiving stolen property (§ 496d, subd. (a); count 4). It was further alleged as to each count that minor committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and as to counts 1 and 2 that minor personally used a firearm in the commission of the crime (§ 12022.53, subd. (b) & (e)(1)).
On September 14, 2018, a violation of probation notice (Welf. & Inst. Code, § 777) was filed, alleging minor failed to participate in counseling, obey his mother's rules, abide by his curfew, attend school, refrain from associating with or being part of a criminal street gang, and refrain from using illicit drugs.
On October 1, 2018, minor admitted the robbery allegation (count 1) and the gang and firearm allegations in the second wardship petition. The other counts were dismissed. The juvenile court advised minor he might be committed to DJJ.
On October 11, 2018, minor admitted the violation of probation allegation.
On October 19, 2018, the probation officer filed a dispositional social study and recommended a DJJ commitment with a maximum term of confinement of 16 years four months. At the time of the report, minor was about two months from his seventeenth birthday. The officer noted that minor committed the current armed robbery while he was on probation on the prior petition. During school, minor possessed marijuana, was involved in fights and gang-related verbal altercations, and threw gang signs at other students. He used profanity toward staff, refused to follow directives, and stole a cell phone. He failed to attend school during various time periods and was not currently enrolled. He should have been a junior in high school. He was using marijuana and Xanax daily to treat the pain and depression he developed after being shot in the leg in December 2017. He got the drugs from his gang friends. He admitted being quick tempered and having anger issues.
Minor told the probation officer he wanted to get out of juvenile hall, finish high school, and become a mechanic. He thought the Deferred Entry of Judgment Program would be a suitable punishment for his offense. When the officer informed minor he did not qualify for that program, he looked surprised, as if he did not realize the seriousness of his armed robbery offense.
Minor's mother reported she and minor had a good relationship, but he did as he pleased and associated with gang members she did not approve of. She was unaware he was using illicit drugs. Minor's behavior deteriorated after he was shot. He had poor school attendance. Minor's father lived in Texas and had almost no contact with minor, who wanted nothing to do with him. Because minor's older brother was a southern gang member, the family's previous home had been shot at by rival gang members on nine occasions. While minor's mother was incarcerated, minor absconded from his grandmother's home, quit attending school, and started consuming illegal substances. Minor's mother said minor did not suffer from mental health conditions, but he did have a quick temper and threw things around when he got angry.
Minor's grandmother reported that while minor was under her supervision, he failed to follow her directives, attend school, or comply with his curfew. He also tested presumptively positive for marijuana.
Minor currently denied being a gang member, but he had previously admitted being a southern gang member and had been involved in multiple gang-related incidents.
The probation officer found no circumstances in mitigation regarding minor or the armed robbery. In aggravation, the officer noted: the crime involved great violence, great bodily harm, the threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness; minor was armed with a weapon at the time of the commission of the crime; the manner in which the crime was carried out indicated planning, sophistication, or professionalism; minor had engaged in violent conduct that indicated a serious danger to society; minor was on probation when the crime was committed; and minor's prior performance on probation was unsatisfactory.
The probation officer stated that the armed robbery was extremely serious in nature because the minor and his cohort approached the victim with loaded guns drawn. They pointed the guns at the victim and threatened to shoot him. The suspects subsequently led officers on a high-speed chase where they showed willful disregard for the safety of others by failing to stop at stop signs and abandoning their vehicle while it was still in gear, causing it to collide with a parked vehicle.
The probation officer concluded:
"In regard to dispositional alternatives, recommending the minor return to the home of his parents or be committed to a local custodial program were not considered based on the circumstances and violent nature of the offense. It appears the minor is in need of a more restrictive placement option and a more substantial period of time in custody than local services can provide, in order to adequately address his criminogenic needs.
"It appears the most appropriate recommendation is for the minor to be committed to [DJJ]. While at the DJJ, he will have an opportunity to continue his education and participate in counseling services, while in a secured setting. Furthermore, [DJJ] will provide the minor with twenty-four (24) hour supervision in a highly secured setting, while instilling discipline by holding him accountable for his actions. In addition, the minor will be under strict supervision, and the safety and security of the community can be maintained.
"Therefore, it is respectfully recommended the minor be adjudged a ward of the Juvenile Court and he be committed to [DJJ] for treatment, training, and rehabilitation. It is hoped the length of the commitment at [DJJ], and the available services, will allow the minor sufficient time to gain the tools he needs to refrain from any further delinquent behavior. Furthermore, it is respectfully recommended the minor remain detained at the Tulare County Juvenile Detention Facility, pending his delivery to [DJJ]."
At the contested dispositional hearing on November 1, 2018, minor's counsel argued local programs would be a better fit for minor than DJJ. A local program was the least restrictive environment for him and it would keep him near his mother, thereby preserving family ties, whereas commitment to DJJ in Stockton would separate him from his mother. Locally, he would receive the services he needed and the public would be protected. Furthermore, if he did not perform well in a local placement, he could still be placed in DJJ. Counsel stated:
"I recognize that the facts of this case are very bad, but we do have programs where there are minors with similar offenses, with more—with acts that are more violent than what happened in this case. We do have the mid-term program. I do recognize that there is a gang concern in [minor's] case, but we do have the mid-term program, which addresses behavioral problems and ... gang problems.
"And then we have the long term, which addresses cases where the kids show criminal sophistication and have violent crimes. So I do think that there are services here, that we can provide to [minor]. He has not received a program before, so we cannot say that if we keep him here, he will fail. We don't know that because we haven't given him a program here in Tulare County.
"And reading the probation report, I do not read about which program in DJJ would help [minor]. So I don't think there's sufficient evidence, right now, that DJJ would be the better fit, at this moment. Apart from that, [minor] is currently 16. I believe he turns 17 in December. So if he doesn't do well in the mid-term or the long-term program, then there's still time for the Court to send him to DJJ, especially when the time for minors to be in DJJ has been extended to 25 years [of age].
"So, right now, I do think that we should try the local programs. And, again, it will make—we will make sure that we are preserving the family ties. It will protect the public, and [minor] will get the services that he needs. And then, in conclusion, I do want to address the blue shirt that he's wearing, the gang track shirt.
"He explained to me that other minors have been trying to fight him. But he indicated to me that each time they do try to fight him, he goes into the cover position. So he's not fighting back. He indicates that he's not provoking others, it's just that, because of his past, he's getting picked on.
"And, with that, I submit."
The juvenile court later asked the probation officer, "I know he's got the teal shirt. Has it been as a result of what was represented or anything different?" The probation officer answered, "It's from gang tagging in his cell." The court responded, "Okay. So no black phone call, at this point."
The prosecutor then chronicled minor's history and recent offenses, stressing the severity of the armed robbery and minor's gang involvement. The prosecutor concluded:
"All in all, Your Honor, the People are in agreement with probation's recommendation. This minor, he's been given multiple opportunities to comply with terms of probation. He's been in custody, not on programs, but he's been in custody and he's been on informal probation.
"The severity of the offenses—much like we were arguing a year ago, the severity of the offenses, it's so much—his gang involvement is so much that a simple local program, where he'll be in custody for 13 months will not suffice, will not be enough to correct every ailment that he has, such as the gangs, such as the criminality, sophistication, using loaded firearms and saying he would have shot the person if they didn't comply with his orders. His—like I said, his drug use, the anti-social behavior that he's been exhibiting, since being in the—in front of this Court, in 2016, I believe is when it started.
"So, with all that being said, we agree with probation. We agree that the only program that would ultimately help this minor is the DJJ program."
After hearing these arguments, the juvenile court responded as follows:
"Okay. All right, I have reviewed all of the reports and the recommendation.
"[Minor], you've worked very hard to be a very significant gang member, and you're doing pretty well at that. Unfortunately, that's exactly the opposite of what we want in our community. In addition to that, while you may care about your mom, you don't care enough about her to put the gang aside, because, in a lot of gang situations that I have seen, personally, the families get killed and shot and the gang member doesn't.
"So because—the reason they get killed and shot, is because the gang member did something to get the rival gang member to go after them, and they may not have even been at home. I saw a 16-year old boy who was shot right in the middle—right in the forehead and killed instantly. His brother was a gang member. He had no gang involvement, but his brother thought his gang was more important than his brother's life.
"That's the direction you're heading in. And part of the gang life is being in custody, and that's exactly where I'm going to put you. And, hopefully, you'll realize that the gang life is not something that you want to continue in. I'm hoping that that will help, and I think that you need more than we have available, locally. I don't think the bond with your mother is enough to keep you out of gangs, so I think that needs to take the next step."
The juvenile court committed minor to DJJ for a maximum term of commitment of 16 years four months, with 97 days of custody credit.
On December 4, 2018, minor filed a notice of appeal.
DISCUSSION
A DJJ commitment is not an abuse of discretion where the record demonstrates "both a probable benefit to the minor ... and the inappropriateness or ineffectiveness of less restrictive alternatives." (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) We will affirm if the record contains substantial evidence to support the juvenile court's findings, indulging all reasonable inferences in support of its decision. (In re Calvin S. (2016) 5 Cal.App.5th 522, 527-528.) " 'A [juvenile] court abuses its discretion when the factual findings critical to its decision find no support in the evidence.' " (In re Khalid B. (2015) 233 Cal.App.4th 1285, 1288.)
"[T]he 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." (Welf. & Inst. Code, § 725.5.) The court is required to "consider 'the broadest range of information' in determining how best to rehabilitate a minor and afford him adequate care." (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329.) " 'Although the DJJ is normally a placement of last resort, there is no absolute rule that a DJJ commitment cannot be ordered unless less restrictive placements have been attempted.' " (In re A.R. (2018) 24 Cal.App.5th 1076, 1080-1081; In re Ricky H. (1981) 30 Cal.3d 176, 183 ["there is no absolute rule that a [DJJ] commitment should never be ordered unless less restrictive placements have been attempted"]; In re Carlos J. (2018) 22 Cal.App.5th 1, 6 (Carlos J.) ["A juvenile court may properly consider 'a restrictive commitment as a means of protecting the public safety.' "].) "A juvenile court must determine if the record supports a finding that it is probable the minor will benefit from being committed to DJJ." (In re Jonathan T. (2008) 166 Cal.App.4th 474, 486 (Jonathan T.).) There is no requirement that the court find exactly how a minor will benefit from the commitment. (Ibid.) The juvenile court is not required to expressly state on the record its reasons for rejecting less restrictive placements, but the record must contain some evidence that the court appropriately considered and rejected reasonable alternative placements. (In re Nicole H. (2016) 244 Cal.App.4th 1150, 1159.) Lastly, we note that the primary objectives of juvenile court law include "the protection of the public as well as the rehabilitation of the minor." (In re Carlos E. (2005) 127 Cal.App.4th 1529, 1542.)
Minor argues he is entitled to a new disposition hearing because the record contains insufficient evidence that he would benefit from DJJ or that less restrictive options were inappropriate. We disagree. Minor, who was almost 17 years old at disposition, had failed what the juvenile court had called his one-and-only chance to reform locally. Despite this opportunity, his criminality had rapidly and dramatically escalated since that time. He was now armed, violent, and involved in a gang. He was committing felonies of increasing severity. His last petition included four serious felonies, including armed robbery and attempted carjacking. He pointed a loaded gun at his victim and later admitted he would have shot him. He even refused to comply with simple probation conditions, such as curfew. In other words, his placement was an abysmal failure.
Probation advised that because of the gravity and violent nature of minor's offenses, a DJJ commitment was recommended and no other placements were appropriate. At DJJ, he would receive the benefit of education and counseling in a highly secured setting with 24-hour supervision, plus the discipline he needed and the safety the public required. Moreover, he would receive a commitment long enough to address his gang involvement and serious criminality.
We conclude ample evidence supported the juvenile court's implied findings that minor would receive a probable benefit from DJJ and the public would be protected from his criminality in the process. "[W]e infer the juvenile court found it was probable minor would benefit from being committed to DJJ, because it anticipated minor's needs would be addressed by programs offered at DJJ." (Jonathan T., supra, 166 Cal.App.4th at p. 486.) We believe the court "properly focused on 'criminogenic factors, the history presented, [and] the need for drastic measures,' along with the '... services available,' in concluding DJJ would meet his rehabilitative goals." (In re A.R., supra, 24 Cal.App.5th at p. 1081.) In addition, "minor [would] benefit from commitment to DJJ, in part, because it [would] provide him with a secure environment. In other words, it is not merely the programs at DJJ which [would] provide a benefit to minor, but the secure setting as well." (Jonathan T., supra, at p. 486.) As noted, the court was not required to find exactly how minor would benefit, just that it was probable he would benefit. (Ibid.) Based on this record, substantial evidence supported the juvenile court's finding of probable benefit at DJJ.
Minor relies on Carlos J. to argue that here, as in Carlos J., the probation officer recommended DJJ without describing any specific programs that would benefit him. In Carlos J., the minor did not have a substantial juvenile court record and he admitted committing assault with a firearm and a gang enhancement. (Carlos J., supra, 22 Cal.App.5th at pp. 4, 7.) Probation recommended commitment to DJJ based on the gravity of the offense and the minor's gang association. (Id. at pp. 7-9.) The juvenile court committed the minor to DJJ, indicating it could not " 'get over the seriousness of the offense' " and stated recent changes at DJJ allowed it to " 'provide additional services ....' " (Ibid.) The Court of Appeal reversed, noting "there must be some specific evidence in the record of the programs at [DJJ] expected to benefit a minor." (Id. at p. 10.) The court remanded for a new dispositional hearing. (Id. at p. 4.)
We believe Carlos J. is distinguishable. Here, minor's history in the juvenile court system was long enough to unmistakably establish his rapidly escalating criminality and the utter inadequacy of his placement. The juvenile court properly focused on minor's circumstances, his egregious offenses, and the promise that DJJ would meet his rehabilitative goals.
Furthermore, minor's worsening criminality and failed placement also supported the juvenile court's finding that placements less restrictive than DJJ were not appropriate to provide for his rehabilitation and the public's safety. "[T]here is no requirement that the juvenile court expressly state on the record the reasons for rejecting less restrictive placements." (In re Nicole H., supra, 244 Cal.App.4th at p. 1159; see In re Ricky H., supra, 30 Cal.3d at p. 184 [although juvenile court failed to articulate reasons for California Youth Authority commitment, evidence in the record showed that "the purposes of the Juvenile Court Law could not be accomplished by" a less restrictive placement].) Here, the reasons were obvious, and the court was not required to wait for minor to commit more serious or violent felonies before placing him at DJJ. Thus, the court properly rejected alternative placements in deciding on a DJJ placement.
In sum, substantial evidence demonstrates both a probable benefit to minor from a DJJ commitment and the inappropriateness of less restrictive alternatives. There was no abuse of discretion.
DISPOSITION
The juvenile court's commitment order is affirmed.