In re M.D. CA5 ( 2021 )

Filed 5/10/21 In re M.D. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re M.D., a Person Coming Under the Juvenile
Court Law.
THE PEOPLE, F081441
Plaintiff and Respondent, (Super. Ct. No. JJD072309)
v.
OPINION
M.D.,
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Tulare County. Hugo J. Loza,
Judge.
Arthur L. Bowie, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Timothy L.
O’Hair, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Poochigian, Acting P.J., Franson, J. and Smith, J.
Minor, M.D., appeals from a disposition order committing him to the Department
of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ). (Welf. & Inst.
Code, § 602.) He contends that the juvenile court abused its discretion by committing
him to DJJ. The People disagree. We affirm.
PROCEDURAL SUMMARY
Prior Petitions and Violations of Probation
On June 27, 2019, the Tulare County District Attorney filed a third amended
wardship petition (Welf. & Inst. Code, § 602, subd. (a)) in case No. JJD072309
(first petition), alleging minor committed grand theft (Pen. Code, § 487, subd. (a);1
count 1), receiving stolen property (§ 496, subd. (a); count 2), and giving false
information to a police officer (§ 148.9, subd. (a); count 3).
On July 3, 2019, minor admitted the truth of the petition in exchange for an
opportunity to participate in the deferred entry of judgment program. The matter was
referred to the probation department for a disposition report and recommendation and
scheduled for a disposition hearing on August 5, 2019. Minor was released to his
mother’s custody pending the disposition.
On July 23, 2019, the Tulare County District Attorney filed a wardship petition
(Welf. & Inst. Code, § 602, subd. (a)) in case No. JJD072309 (second petition), alleging
that on July 20, 2019, minor received a stolen vehicle (§ 496d, subd. (a); count 1), and
unlawfully drove or took a vehicle (Veh. Code, § 10851, subd. (a); count 2).
On July 31, 2019, minor entered a conditional plea whereby he admitted the truth
of the second petition in exchange for an additional opportunity to participate in a
deferred entry of judgment program. On August 19, 2019, the juvenile court determined
minor was not suitable for deferred entry of judgment. The juvenile court declared minor
a ward of the court, granted him probation, and permitted him to reside with his father.
1 All further statutory references are to the Penal Code unless otherwise stated.
2.
On September 4, 2019, minor admitted that he violated his probation. On
September 18, the juvenile court ordered minor remain a ward of the court, reinstated his
probation on the second petition, and committed him to the custody of the Tulare County
short-term program for a term not to exceed 180 days.
On December 13, 2019, the Tulare County District Attorney filed a wardship
petition (Welf. & Inst. Code, § 602, subd. (a)) also in case No. JJD072309
(third petition), alleging minor drove under the influence of a controlled substance (Veh.
Code, § 23152, subd. (f); count 1), was under the influence of a controlled substance
(Health & Saf. Code, § 11550, subd. (a); count 2), and drove without a license (Veh.
Code, § 12500, subd. (a); count 3).
On January 29, 2020,2 minor admitted the truth of counts 1 and 3 and admitted a
violation of probation in exchange for dismissal of count 2 in the third petition. On
February 13, the juvenile court ordered minor continue as a ward of the court and
reinstated probation.
On March 10, the Tulare County District Attorney filed a wardship petition
(Welf. & Inst. Code, § 602, subd. (a)) in case No. JJD072309 (fourth petition), alleging
minor unlawfully drove or took two vehicles on two dates (Veh. Code, § 10851,
subd. (a); counts 1, 3, 6, & 8), received two stolen vehicles on two dates (§ 496d;
counts 2, 4, 7, & 9), committed assault with a firearm (§ 245, subd. (a)(2); count 5),
evaded an officer in a motor vehicle (Veh. Code, § 2800.2, subd. (a); count 10), and
resisted a peace officer (§ 148, subd. (a)(1); count 11). The petition further alleged that
minor personally used a firearm during the commission of count 5 (§ 12022.5,
subd. (a)(1)).
On March 18, minor admitted the truth of counts 1, 3, and 5, and the personal use
of a firearm allegation in the fourth petition. The remaining counts were dismissed. On
2 All further dates refer to the year 2020 unless otherwise stated.
3.
April 1, the juvenile court ordered minor to continue as a ward of the court and
committed him to a local long-term program (juvenile hall) for 24 months.
The Current Petition
On April 21, the Tulare County District Attorney filed a wardship petition
(Welf. & Inst. Code, § 602, subd. (a)) in case No. JJD072309 (fifth petition), alleging that
minor committed an assault on a peace officer (§ 245, subd. (c); count 1) and an assault
by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count 2).
On May 6, minor admitted the truth of counts 1 and 2 of the fifth petition. On
June 11, the juvenile court committed minor to DJJ for a maximum term of 20 years
four months.
On July 16, minor filed a notice of appeal.
FACTUAL SUMMARY
The Underlying Offense of the Current Petition3
On April 14, minor was in the custody of the Tulare County local long-term
program. While he was involved in morning physical training, probation correctional
officer A.R. told minor he and others were not exercising in a proper manner. Minor told
A.R. that he was in compliance. In response, A.R. “placed [minor] in the cover position.”
Minor believed “A.R. was being hard on [him]” and “decided to take matters into his
own hands.”
At approximately 1:27 p.m., while minor was locked out of his cell during
recreation time, he asked A.R. to unlock the door to his cell so he could use the toilet in
his cell. When A.R. keyed open the door to minor’s cell, minor and another minor stood
from their seats and approached A.R. Minor struck A.R. in the head and face until a
3 Minor admitted the truth of the petition and acknowledged the factual basis for the
plea was contained in the Tulare County Probation Department’s report. The factual
summary is therefore drawn from the predisposition report of the probation officer.
4.
correctional officer pulled him away. The other minor attempted to strike A.R. but was
restrained by a correctional officer.
The Disposition Hearing
At the disposition hearing, minor requested to be afforded an additional
opportunity to participate in the Tulare County local long-term program. His counsel
explained that he had only been in the program for about two weeks when the new
petition was filed so he had not yet obtained the benefit of the institutional programming.
Further, his counsel argued that minor would not benefit from a DJJ commitment
because, as he understood it, no minors were being accepted to DJJ facilities. Instead, the
minor would wait for transfer and not have access to otherwise available institutional
programming.
The juvenile court declined minor’s request and explained the basis for its
disposition. Although minor was not yet 17 years old, the offense for which he was
committed to the long-term program “was actually a very serious set of circumstances
that involved car theft and … use of a firearm.” Based on that offense, the court
explained that it could have committed him to DJJ. Instead, the court afforded minor an
additional commitment at the local long-term level despite his multiple new offense
petitions and probation violations since July 2019. Then, within two weeks of the
minor’s commitment to the long-term program, he “conspired with another youth there at
the facility to attack a correctional officer.” The correctional officer “suffered fairly
serious injuries to [his] face. The court further explained that minor had a very serious
history of regular drug use,4 admitted to being gang related, had gang tattoos, and was
involved in an additional physical confrontation in the long-term program after his assault
4 Minor began using marijuana and alcohol at age 12 and began using
methamphetamine and cocaine at age 14. Thereafter, minor reported using alcohol,
marijuana, and cocaine on a daily basis and methamphetamine three to four times per
week.
5.
on A.R. The court stated that, as a result of minor’s behavior, it was “concerned about
the safety of other youth … [and] correctional officers … at the hall.” It further noted
that minor had acknowledged having a “significant anger management problem.”
Further, the juvenile court also considered the probation officer’s report. Beyond
that which the court discussed on the record, the report reflected that minor had never
been diagnosed with a mental health condition and denied having any mental health
issues beyond having difficulty managing his anger. The probation report further
reflected that minor did not appear to be developmentally delayed, was not enrolled in
special education classes, and had received a C+ school grade average in his February
reporting period.
In light of the above considerations, the probation officer recommended that minor
be committed to DJJ for a longer duration than was available at the local long-term
program “in order to adequately address his criminogenic needs” and so he could
participate in the available services, including “Aggression Interruption Training (ten-
week cognitive behavioral intervention to improve social skills and control anger);
Counter Point (thirty-three session cognitive behavioral program with a goal to reduce the
risk o[f] re-offending); and Cognitive Behavioral Interventions for Substance Abuse
(thirty-nine session program to teach participants strategies for avoiding substance
abuse) ….” The juvenile court agreed with the probation officer’s recommendation and
committed minor to DJJ.
DISCUSSION
Minor contends that the juvenile court abused its discretion in committing him to
DJJ because there were less restrictive alternatives and there was “absolutely no evidence
… that [he] would receive any benefit from being committed to DJJ.” The People
disagree, as do we.
We review a juvenile court’s commitment decision for abuse of discretion. (In re
A.R. (2018) 24 Cal.App.5th 1076, 1080 (A.R.) In reviewing a decision for abuse of
6.
discretion, we make all reasonable inferences in support of the trial court’s determination.
(Ibid.) “ ‘A DJJ commitment is not an abuse of discretion where the evidence
demonstrates a probable benefit to the minor from the commitment and less restrictive
alternatives would be ineffective or inappropriate.’ ” (Ibid.)
“ ‘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.’ ” (A.R., supra, 24 Cal.App.5th at pp. 1080–1081; In re Carlos J. (2018) 22
Cal.App.5th 1, 6 [“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.) There is no requirement
that the court expressly find exactly how a minor will benefit from the commitment.
(Ibid.) Nor must the juvenile court expressly state on the record its reasons for rejecting
less restrictive placements. (In re Nicole H. (2016) 244 Cal.App.4th 1150, 1159.) But
the record must contain some evidence that the court concluded DJJ placement would
benefit the minor and appropriately considered and rejected reasonable alternative
placements. (A.R., supra, 24 Cal.App.5th at pp. 1080–1081; Nicole H., supra, 244
Cal.App.4th at p. 1159; Jonathan T., supra, 166 Cal.App.4th at p. 486.)
In reviewing a commitment determination, we remember that “the primary goal
behind maintaining separate courts and procedures for adults and minors is to ensure that
juvenile offenders who have not yet become hardened criminals receive treatment and
rehabilitation.” (In re Carlos E. (2005) 127 Cal.App.4th 1529, 1542.) That goal is
reflected in the mandate that juvenile courts consider “the protection of the public as well
as the rehabilitation of the minor” in reaching a disposition. (Ibid.) In reaching a
disposition, a juvenile court must “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.
7.
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.)
As the People correctly note, this case is similarly situated to A.R., supra, 24
Cal.App.5th 1076, where the minor was committed to DJJ after he was found to have
broken into a home, robbed the inhabitant, and hit the inhabitant in the process of fleeing.
(Id. at p. 1079.) The court had previously found true petitions that alleged the minor had
committed various theft-related and residential burglary offenses, including felony
offenses and allegations of weapons use. (Id. at pp. 1078–1079, 1081.) The minor had
also admitted probation violations on at least two occasions. (Id. at pp. 1178–1179.) The
juvenile court had previously attempted less-restrictive placements, including placing the
minor on probation in the supervision of a parent, requiring the minor to attend a
residential day program while in the custody of a parent, and placing the minor outside of
the home, in at least five different facilities. (Id. at pp. 1178–1179, 1182.)
On appeal in A.R., the minor argued that the juvenile court abused its discretion in
committing him to DJJ because there was “no substantial evidence that there would be
probable benefit to the commitment, or that a less restrictive placement would be
ineffective or inappropriate.” (A.R., supra, 24 Cal.App.5th at p. 1080.) The appellate
court disagreed—on that record, there was substantial evidence of probable benefit from
DJJ placement. After explaining “the [m]inor had a long history with the juvenile system
and the juvenile court had already tried various less restrictive placements,” the appellate
court emphasized the juvenile court “properly focused on ‘criminogenic factors, the
history presented, [and] the need for drastic measures,’ along with the ‘well of services
available’ ” at DJJ in concluding DJJ placement would benefit the minor. (Id. at
p. 1181.)
The appellate court in A.R. also concluded that the juvenile court had appropriately
rejected less restrictive alternatives. (A.R., supra, 24 Cal.App.5th at pp. 1181–1182.) It
8.
explained that the minor had engaged in numerous criminal activities, including multiple
felonies and had been committed to “a series of less restrictive settings.” (Id. at p. 1182.)
The juvenile court had even ordered the minor placed at the “Youth Offender Unit”
(juvenile hall) but vacated the placement, “after which the [m]inor drank, smoked
marijuana, and committed [a] robbery ….” (Ibid.) That “history le[ft] little doubt that
less restrictive alternatives ha[d] been wholly ineffective in rehabilitating the [m]inor.”
(Ibid.)
Here, like in A.R., evidence existed in the record to support the juvenile court’s
conclusion that minor would benefit from a DJJ commitment. Like the minor in A.R.,
minor had a significant history of violations—five wardship petitions found true in under
two years—and the juvenile court had attempted probation in the custody of each parent,
placement in a local short-term program, and placement in a local long-term program. In
each instance, minor had reoffended. The court considered his performance in the long-
term program where minor had assaulted a probation correctional officer and then gotten
into a fight with another youth. Those incidents reflected not only that the local
placement was ineffectual in rehabilitating minor but also that he was a risk to facility
staff and other youths at the long-term facility. The court also considered minor’s anger
management issues, substance abuse issues, and educational performance, and reviewed
the probation officer’s descriptions of the programs available at DJJ to assist minor in
concluding that DJJ placement was appropriate. We conclude that substantial evidence
existed that minor would benefit from DJJ placement.
Next, the juvenile court considered and appropriately rejected less restrictive
placements. As noted, minor had been placed on probation in the custody of his parents,
in a local short-term program, and in a local long-term program (albeit he offended
within two weeks of his placement in that program) and reoffended in each instance. The
offenses appeared to increase in severity with offenses in the most recent petitions
involving a firearm and assaulting a probation officer. Further, after minor’s assault on
9.
the probation correctional officer, minor was involved in an additional physical
altercation with a youth at the long-term facility. The juvenile court stated that, as a
result of minor’s violent conduct, it was concerned about the staff and youth at the long-
term program.5 On this record, substantial evidence exists to support the juvenile court’s
conclusion that a less restrictive placement would have been ineffectual.
The juvenile court did not abuse its discretion in committing minor to DJJ.
DISPOSITION
The order is affirmed.
5 The juvenile court also reviewed the probation officer’s report which discussed the
dispositional alternatives. The probation officer recommended against placement with
minor’s father because it would be a less restrictive environment than the local long-term
program where he committed the new offense. The probation officer also recommended
against replacement in the long-term program despite not having had a full opportunity to
benefit from the services offered. The probation officer’s recommendation was in part
because minor appeared to be a risk to others. But it was also based upon the officer’s
observations that minor either did “not understand the severity of the current and prior
offenses or may not [have been] taking [his placement] seriously[,]” and “need[ed] a
more substantial period of time in custody than local services can provide[] in order to
adequately address his criminogenic needs.”
10.