IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE A113846

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1 Filed 2/16/07 In re S.S. CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE In re S. S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, S. S., Plaintiff and Respondent, v. Defendant and Appellant. A (Contra Costa County Super. Ct. No. J ) Appellant S. S., born in August 1989, appeals a juvenile court order committing him to the California Youth Authority (CYA). 1 He contends there was no substantial evidence that less restrictive alternatives would have been ineffective or inappropriate, or that he would probably benefit from a CYA commitment. He also contends, and the People concede, the court erred in calculating his maximum term of confinement. BACKGROUND In January 2003, the original Welfare and Institutions Code section 602 petition was filed in Contra Costa County alleging appellant committed one count of felony and two counts of misdemeanor vehicle theft (Veh. Code, 10851, subd. (a)), resisting a peace officer (Pen. Code, 148, subd. (a)(1)), hit and run driving (Veh. Code, 20002, 1 We note that effective July 1, 2005, the CYA was redesignated the Department of Corrections and Rehabilitation, Division of Juvenile Facilities. (Welf. & Inst. Code, 1710, subd. (a).) Our references to the CYA pertain thereto. 1

2 subd. (a)), evading an officer (Veh. Code, ), two counts of driving while unlicensed (Veh. Code, 12500, subd. (a)), and receiving stolen property (Pen. Code, 496, subd. (a)). Appellant pled no contest to felony vehicle theft, resisting a peace officer, evading an officer, and misdemeanor vehicle theft, and the remaining charges were dismissed. In June 2003, a Welfare and Institutions Code section petition was filed in Alameda County alleging appellant committed felony vehicle theft, felony evading an officer while driving in reckless and wanton disregard for safety (Veh. Code, ) and misdemeanor driving while unlicensed. After appellant admitted the auto theft count, the remaining charges were dismissed and the petition was transferred to Contra Costa County for disposition. He was declared a ward of the court and placed at the Orin Allen Youth Rehabilitation Facility (OAYRF) for a nine-month program. In October 2003, appellant admitted violating his probation by displaying a pattern of noncompliant and disruptive behavior. As a result, the court extended his commitment by 30 days. On April 25, 2004, appellant was released to the community for a 90-day conditional release/parole period. However, on May 22 he was detained by police and admitted committing auto theft and receipt of stolen property. His parole was terminated and he was ordered detained in juvenile hall for 45 days with credit for time served, after which he was to be released to his parents. In August 2004, a supplemental section 602 petition was filed alleging appellant s commission of auto thefts in May and August. He pled no contest to the May auto theft, the other count was dismissed and he was recommitted to the OAYRF for another ninemonth term. However, in December a section 777 notice of probation violation hearing (section 777 notice) issued based on appellant s failure to adhere to the rules at OAYRF and a continued pattern of noncompliant and disruptive behavior at the facility following 2 All undesignated section references that follow are to the Welfare and Institutions Code. 2

3 numerous warnings and admonishments from institutional staff members. He admitted the violation and 30 days were again added to his OAYRF sentence. In January 2005, another section 777 notice issued based on appellant s continued failure to adhere to OAYRF rules and noncompliant and disruptive behavior. After he admitted the violation, the court set aside his September 2004 institutional commitment and ordered him placed in a court-approved home or institution. The probation records indicated that appellant used marijuana, alcohol and methamphetamine, was unable to regularly attend school, and admitted to being involved in a street gang. In February, he was referred to Karis House and was scheduled to be transferred there in March. In March 2005, a second supplemental section 602 petition was filed alleging appellant committed a misdemeanor criminal threat. The basis of the petition was that in February he made numerous threatening remarks, including death threats, against a probation counselor and the counselor s family. On one occasion appellant revealed to the probation counselor the color of the counselor s and his wife s cars, his home and where he lived. Appellant also told another juvenile hall resident of these details in an attempt to have the resident kill the counselor and his family. Appellant pled no contest to the supplemental section 602 petition in April and on June 16, he was placed at the Crystal Creek Boys Ranch (Crystal Creek). On July 7, 2005, a section 777 notice issued alleging appellant left Crystal Creek on June 22 without permission and his whereabouts were unknown. During the 11 hours that he was AWOL, he had many opportunities to voluntarily surrender. Instead, a highway patrol officer had to draw his gun and have assistance from two private citizens in order to get appellant to lie on the ground and be handcuffed. The Crystal Creek director believed that appellant would not be successful in an unlocked facility due to his level of sophistication and gang affiliation. Appellant admitted the violation at a September 2005 hearing. Dispositional Hearing Appellant s probation officer, Kira Brown, stated that appellant had generally done very well during his 209 days at juvenile hall, despite a couple of instances in 3

4 December 2005 requiring his removal from the unit. For the most part he was following staff directions, being respectful to staff and earning high school credits. On crossexamination, Brown recommended that appellant be committed to the CYA because his behavior was starting to escalate a little bit, he had not learned a single lesson since the moment he was put on probation, he continued to defy the terms and conditions of the court s orders, and he performed better in a locked down, incarcerated facility than at an open one. Brown said that appellant s incident at Crystal Creek and his somewhat violent past history demonstrated that there was a concern for community safety, and appellant had not taken advantage of the prior chances offered to correct his behavior. She also said that appellant told staff that he associates with the Color of Blood, Sons of Death and Crazy Little Thugs gangs. Brown said that at the CYA appellant would be enrolled in anger management and victim awareness classes, and would attend school and weekly group sessions for social awareness and gang awareness. She also said that juvenile hall was designed to be a detention facility pending a permanent placement. It was not designed as a long-term housing facility. Daniel Macallair, of the Center on Juvenile and Criminal Justice, testified about the CYA. Macallair explained that in a minor s first 30 to 90 days at the CYA they are given a battery of educational and mental health tests to help determine placement. Unless the minor is fairly low functioning or has a very severe identified need, he will not be placed in one of the special counseling programs. If placed in the general population, wards get individual crisis intervention counseling until they are stabilized. Macallair opined that appellant would be in the general population at the CYA. He also stated that there was a high degree of violence at the CYA, gangs tended to dominate the living units, and there was overcrowding in the dormitories. He opined that a CYA commitment reinforces gang identity and subculture and there is a high recidivism rate. Macallair said the CYA was operating under a consent decree, could not protect its wards, and does not provide adequate educational, mental health and substance abuse services. He said the CYA had the highest level of security but was the least capable in 4

5 terms of rehabilitation. Macallair recommended that appellant remain at juvenile hall rather than be committed to the CYA. Appellant s counsel encouraged the court to consider placing appellant at Karis House or having him rescreened for placement instead of committing him to the CYA. In following the probation department s recommendation of a CYA commitment, the court stated due to appellant s behavior and great risk to the community, it was without placement alternatives. The court stated it had considered all local, less restrictive programs and forms of custody and found them inappropriate dispositions. The court observed that despite the problems at the CYA, it had programs available to appellant. Finally, the court calculated appellant s maximum term of confinement as five years 10 months, with credit for 1,011 days in custody. DISCUSSION I. Appellant's CYA Commitment Was Not an Abuse of Discretion Appellant contends the juvenile court abused its discretion in committing him to the CYA because there was no substantial evidence a less restrictive placement, such as Karis House, would have been ineffective. Appellant further contends there was no substantial evidence the CYA would probably benefit him. The juvenile court has broad discretion in determining rehabilitation and punishment for juveniles and making placement decisions in order to hold juveniles accountable for their behavior and to protect the public. ( 202; In re Eddie M. (2003) 31 Cal.4th 480, 507.) A juvenile court s decision to commit a minor to the CYA is reviewed for abuse of discretion, indulging all reasonable inferences to support the decision. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) Section 734 limits the juvenile court s discretion. (In re Ricky H. (1981) 30 Cal.3d 176, 182, 178.) It provides [n]o ward of the juvenile court shall be committed to the [CYA] unless the judge of the court is fully satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefited by the reformatory educational discipline or other treatment provided by the [CYA]. (Ibid.) Thus, a CYA commitment will not be deemed an abuse of discretion where the evidence 5

6 demonstrate[s] probable benefit to the minor from commitment to the CYA and that less restrictive alternatives would be ineffective or inappropriate. [Citation.] (In re Pedro M. (2000) 81 Cal.App.4th 550, ) In determining whether to commit the minor to the CYA the juvenile court must also consider the circumstances and gravity of the [minor s] offense, as well as the minor s age, prior delinquent history, and any other relevant and material evidence. ( ) There is no requirement that less restrictive alternatives must be attempted before a CYA commitment is ordered. (In re Asean D. (1993) 14 Cal.App.4th 467, 473.) However, there must be some evidence that the court considered a less restrictive placement. (In re Teofilio A. (1989) 210 Cal.App.3d 571, 577.) Additionally, the court s decision must conform to the purposes of the juvenile court law. (See In re Ricky H., supra, 30 Cal.3d at p. 184.) The stated purpose of the juvenile court law is to provide for the protection and safety of the public and each minor under the jurisdiction of the juvenile court. ( 202, subd. (a).) Accordingly, minors in need of protective services are to receive care, treatment and guidance consistent with their best interest and the best interest of the public. ( 202, subd. (b), italics added.) The juvenile court is to consider the safety and protection of the public together with the best interests of the minor. ( 202, subd. (d); see In re Teofilio A., supra, 210 Cal.App.3d at pp ) The 1984 amendments to section 202 reflect a shift in emphasis toward express protection and safety of the public from less restrictive alternative approach oriented towards the benefit of the minor. (Ibid.) We conclude substantial evidence supports the court s decision to commit appellant to the CYA. In recommending appellant s CYA commitment the probation report stated, [Appellant] needs to be held accountable for his behavior. His delinquent behaviors are escalating and because he seems unconcerned with his own safety and the safety of others, he is a growing risk to the community and would be better served in a secure facility. [Appellant] would be able to address his long term counseling needs, his educational needs as well as receive vocational training in preparation for work, all the while providing safety to the community. 6

7 In committing appellant to the CYA the court stated, I think this is the second case I have had before this court where I believe the minor presents as great a risk to the community as [appellant] did and that s over probably thousands of cases. [ ]... [ ]... You have left this court with no alternative, [appellant]. And you have presented and continue to present a risk to the community. [ ] I am not going to go through the facts of your detention at Crystal Creek. Quite honestly, they re egregious. I can t imagine many scarier situations. And quite honestly this court is thankful that I did not send you to Karis House or another placement because from that placement you would have escaped. Contrary to appellant s contention, the record contains evidence demonstrating both a probable benefit to appellant from a CYA commitment and the inappropriateness of less restrictive alternatives. The probation department recommended a CYA commitment based on the escalating seriousness of appellant s offense, his failure at prior less restrictive placement alternatives, and the violence he exhibited upon being apprehended following his escape from the less restrictive Crystal Creek placement. The court could reasonably conclude that any less restrictive placement would not adequately protect the public and that appellant would benefit from the CYA s reformatory, educational, disciplinary and other treatment programs. No abuse of discretion is demonstrated. II. The Court Erred in Calculating Appellant's Maximum Term of Confinement The parties agree that although the juvenile court at the dispositional hearing recalculated appellant s maximum term of confinement (MTC) as five years ten months, his MTC should be five years six months, calculated as follows: (1) As to the January 2003 section 602 petition, the three-year base term for the felony auto theft plus the following consecutive subordinate terms: four months for resisting arrest, two months for misdemeanor evading, and four months for misdemeanor auto theft. (2) As to the June 2003 section 602 petition, a consecutive subordinate eightmonth term for felony auto taking. 7

8 (3) As to the August 2004 supplement section 602 petition, a consecutive subordinate eight-month term for felony auto taking. (4) As to the March 2005 second supplemental section 602 petition, a consecutive subordinate four-month term for making a misdemeanor criminal threat. The parties concede that remand is unnecessary and that, instead, we may order the juvenile court to prepare an amended commitment order reflecting appellant s MTC of five years six months. DISPOSITION The juvenile court is directed to prepare an amended commitment order reflecting that appellant s MTC is five years six months. The disposition order is otherwise affirmed. SIMONS, J. We concur. JONES, P.J. NEEDHAM, J. 8