IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION 1 A126256

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1 Filed 8/19/10 In re E.F. CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION 1 In re E.F., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. E.F., Defendant and Appellant. A (Alameda County Super. Ct. No. SJ ) Appellant E.F., a minor, admitted committing assault with a deadly weapon, which occurred when he used a stolen vehicle to assault pursuing officers. Appellant s prior history of school truancy, felony convictions, AWOL s from three placements, and his familial circumstances led the juvenile court to commit appellant to the Division of Juvenile Justice (DJJ). Appellant claims the court abused its discretion by committing him to the DJJ. Appellant also contends he has not received his full conduct credits. We affirm the DJJ commitment, but we remand for modification of the commitment order to reflect 320 days of custody credit. I. BACKGROUND Pursuant to Welfare and Institutions Code 1 section 602, a subsequent petition filed August 4, 2009, charged appellant with committing six separate assaults with a weapon 1 All statutory references are to the Welfare and Institutions Code unless otherwise specified.

2 by means of force likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1); counts 1 6), and enhancements alleging personal use of a deadly/dangerous weapon, a car (Pen. Code, subd. (b)). Appellant was further alleged to have eluded a police officer with wanton or willful disregard (Veh. Code, ; count 7), stolen a car (Veh. Code, 10851; count 8), and received stolen property (Pen. Code, 496; count 9). Prior convictions for possession of a sawed-off shotgun (Pen. Code, 12020, subd. (a)) and misdemeanor possession of a burglary tool (Pen. Code, 466) were also alleged. The police report detailed, [Appellant] was observed driving a stolen vehicle.... As [officers] attempted to stop the vehicle, the subject fled[,]... making no attempt to stop. Subject lead [officers] on a pursuit of nearly 14 miles at speeds ranging from MPH, committing various veh[icle] infractions and showing no regard from public safety. Appellant admitted the assault allegation in count 1, and the remaining counts and enhancements were dismissed on motion of the prosecution. Appellant had an extensive history with the juvenile justice system, beginning in August 2007, when he was subject to a petition alleging chronic truancy under section 601, subdivision (b). Appellant was made a ward of the court, but because the probation department had lost contact with appellant and his family, appellant could not be located. On August 26, 2007, appellant was detained and charged with possession of a sawed-off shotgun. After he admitted the allegation, he was removed from the custody of his mother and ordered into an out-of-home placement with a referral to the Family Preservation Unit (FPU). Because of difficulties relocating appellant s mother, the FPU placement never occurred. On January 23, 2008, appellant was accepted at Boys Republic in San Bernardino County. Boys Republic was determined to be suitable because it provided appellant with a highly structured program of behavior modification and counseling, including participation in anger management, substance abuse, and gang intervention counseling. However, several days after being placed at Boys Republic, appellant went AWOL when his mother allegedly removed him from the program during a visit. 2

3 Appellant was located on March 10, 2008, when he was alleged to have committed felony car theft (Veh. Code, 18051), felony receiving stolen property (Pen. Code, 496), misdemeanor giving false identification to police (Pen. Code, 148.9), and misdemeanor possession of burglary tools (Pen. Code, 466). After appellant admitted possession of burglary tools, the prior placement order was continued. On April 24, 2008, appellant was placed at EE s Residential Group Home in San Jose. Three days later, appellant left the home and remained away without permission. A warrant was issued for appellant s arrest on April 30, 2008, but he remained AWOL for approximately 10 months. On February 23, 2009, appellant was arrested on the outstanding warrant and his placement order was continued again. On April 8, 2009, appellant was placed at Aiming High in Rialto, California. Soon after, appellant asked to be removed because he did not feel safe in San Bernardino County. On April 28, he was placed at Greater New Beginnings in Oakland. Appellant left the program to attend his brother s girlfriend s birthday party and did not return. Appellant remained out of contact for over three months, until he was arrested on August 2, 2009, and charged with the instant offenses. Prior to the dispositional hearing for the current offense, the probation department consulted with the Screening for Out-of-home Services Committee (SOS committee) to assess options for appellant s fifth placement. The committee determined appellant would be suitable for an out-of-home placement or DJJ commitment and recommended he be screened for both the Rite of Passage (ROP) program in Nevada and the DJJ. The ROP program did not accept appellant, noting he did not express remorse for the crime, and did not understand the seriousness of his actions and would be a high risk to reoffend. The intake consultant at the DJJ indicated appellant would be a category five ward with a custody time of 18 months before being eligible for parole and would be able to participate in (as part of the rehabilitation) victim awareness and decisionmaking classes, vocational education programs, and programs in anger management, substance abuse, and gang intervention. 3

4 After the probation officer further consulted with the SOS committee, it was determined appellant was suitable for a return to an out-of-home placement or a DJJ commitment. Moreover, the placement unit supervisor recommended an out-of-home placement in a remote setting, such as Clarinda Academy in Iowa. Ultimately, the probation department concluded, A [DJJ] commitment is too restrictive at this point as [appellant] is fairly young.... [I]t will be recommended that the previous placement order be continued. Although he is a high risk to go AWOL, it is hoped that a remote placement will deter him from going AWOL. He is greatly in need of supervision and structure in his life as well as an education. The juvenile court rejected the probation department s recommendation and committed appellant to the DJJ for a maximum confinement of 4 years 10 months, with 306 days credit for time served. Explaining its decision, the courted noted, Then I placed him in a residential group home in San Jose. He AWOL d in three days. I placed him in another program in San Bernardino. He AWOL d in 12 days. And I placed him in still another program, Greater New Beginnings, and he stayed all of two days. So obviously, every effort that we ve made to rehabilitate him and give him some help to become a constructive citizen has been rejected and just spit upon by the minor. He s made his choices repeatedly. This is a [section] 707[, subdivision] (b) offense, so it qualifies him for the [DJJ]. The court reasoned appellant would benefit from the reformatory educational disciplines or other programs provided by the [DJJ]. II. DISCUSSION Appellant contends (1) the juvenile court abused its discretion in committing him to the DJJ because it failed to order a 90-day diagnostic evaluation under section 704, (2) the court failed to consider the effectiveness or appropriateness of less restrictive alternative placements, (3) the court failed to act in his best interest by committing him to the DJJ without evidence of benefit, and (4) the court failed to act in his best interest by not complying with section Appellant also contends he has not received his full conduct credits. 4

5 We review the 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.... ( 202, subds. (a), (b) & (d); [citations].) (In re Charles G. (2004) 115 Cal.App.4th 608, ; In re Calvin S. (2007) 150 Cal.App.4th 443, 449.) 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].... ( 202, subd. (b).) (Charles G., at p. 615.) Such punishment may include commitment of the minor to the [DJJ]. ( 202, subd. (e).) When determining the appropriate disposition in a delinquency proceeding, the juvenile courts are required to consider (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. ( 725.5; see also In re Gary B. (1998) 61 Cal.App.4th 844, ) Appellant initially contends the juvenile court abused its discretion by failing to order a 90-day diagnostic evaluation to assess his suitability for placement at the DJJ. Prior to a DJJ commitment, if the court feels it does not have a comprehensive understanding of the minor to make an informed decision, it may order a minor to be placed temporarily in the DJJ for up to 90 days for the purpose of evaluation and report concerning his or her amenability to training and treatment offered by the [DJJ]. ( 707.2, subd. (a).) [T]he controlling factor... is whether the court believed such a study would be in the best interest of the minor. (In re Norman H. (1976) 64 Cal.App.3d 997, 1004 (Norman H.) [discussing similar provision in 704, subd. (a)].) In Norman H., the juvenile court was presented with information regarding appellant s health, educational abilities, disabilities, and need for vocational skills. (Norman H., supra, 64 Cal.App.3d at pp ) The evidence presented included 5

6 a psychiatric report and testimony from the officers involved, the juvenile, and a psychiatrist and psychologist, both of whom examined the juvenile. (Ibid.) The appellate court affirmed the juvenile court s decision committing the minor to the California Youth Authority rather than placing him for a 90-day diagnostic evaluation because [t]he court had facts at its disposal from which it validly concluded further study was not needed and that [DJJ] was in the best interest of the appellant. (Id. at p ) Appellant attempts to distinguish Norman H., contending the court in this matter did not have enough facts at its disposal and committed him to the DJJ on incomplete information. Additionally, appellant alleges the DJJ commitment was based solely on the court s frustration with him, rather than on appellant s circumstances. The record demonstrates the court had sufficient information regarding appellant s mental and educational abilities, disabilities, the circumstances and gravity of his instant offense, and previous delinquent history, to make an informed decision and satisfy the requirements of section Appellant has not attended school since 2006, and first appeared in front of the court for allegations of truancy. The court was familiar with appellant s history of delinquent behavior through its adjudication of his numerous felonies and misdemeanors. Moreover, the court had seen appellant s offenses escalate in seriousness, ranging from possession of a sawed-off shotgun and burglary tools to the current offense, assault with a deadly weapon. The court was presented with numerous probation reports evaluating appellant, along with the most recent evaluation from ROP, in which he was determined unsuitable because he did not understand the seriousness of his actions and would be a high risk to reoffend. As summarized by the court, [E]very effort that we ve made to rehabilitate him and give him some help to become a constructive citizen has been rejected and just spit upon by the minor. He s made his choices repeatedly. Because the court had sufficient knowledge of appellant s age, the circumstances and gravity of his offense, and his previous delinquent history, the court satisfied the requirements of section and was able to make an informed decision. 6

7 Therefore, the court did not abuse its discretion in denying appellant s request for a 90- day evaluation. 2 Despite appellant s contention to the contrary, we find substantial evidence to support the court s evaluation and conclusion that less restrictive alternatives would be inappropriate or ineffective. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) Before making its disposition, the juvenile court must have in mind... the command of In re Aline D. (1975) 14 Cal.3d 557, which requires proper consideration be given to less restrictive programs before a commitment to [DJJ] is made. (In re L. S. (1990) 220 Cal.App.3d 1100, 1105, fns. omitted, citing In re Michael D. (1987) 188 Cal.App.3d 1392, 1396; see also In re Carrie W. (1979) 89 Cal.App.3d 642.) The court considered many alternatives, and past less restrictive placements had proved ineffective in rehabilitating appellant. The court was aware that after consulting with the SOS committee to assess options for his placement, the probation department determined appellant suitable for an out-of-home placement or DJJ commitment. Nevertheless, when appellant was screened for an out-of-home placement in Nevada (ROP), the program would not accept him. Additionally, the court considered a recommendation to place appellant at a group home in Iowa, Clarinda Academy. However, based on appellant s previous escape from San Bernardino County, the court made the reasonable inference that placement in Iowa is no less likely to prevent him 2 Appellant attempts to analogize the preferred practice in applying the discretionary requirement in Penal Code section 1203, subdivision (g), with the practice under Welfare and Institutions Code section 602. This argument is without merit. The preferred practice suggests there must be a good countervailing reason... for denying the request [for a probation report]. (People v. Tatlis (1991) 230 Cal.App.3d 1266, ) Here, the juvenile court had a good countervailing reason in denying the request for the 90-day evaluation: the court was already very familiar with appellant from its extensive adjudication of his multiple allegations, and did not require further evaluation. 7

8 from going AWOL. 3 Given appellant s previous failure in less restrictive out-of-home placements, any placements other than DJJ were unlikely to be sufficient. (See In re Pedro M. (2000) 81 Cal.App.4th 550, [DJJ commitment not abuse of discretion where prior placements had been ineffective in changing minor s conduct].) Therefore, on this record, the juvenile court appropriately considered other alternatives, and did not abuse its discretion in concluding that utilizing less restrictive alternatives would be futile. Appellant further alleges the court failed to act in his best interest because he was committed to the DJJ without evidence of benefit from the commitment. [A] commitment to [DJJ] must be supported by a determination, based upon substantial evidence in the record, of probable benefit to the minor. (In re Aline D., supra, 14 Cal.3d 557, 567.) However, because no rigid test exists for determining whether a commitment would be of benefit to a minor, courts consider the circumstances in light of the potential reformative, educational, rehabilitative, treatment, and disciplinary benefits the DJJ commitment may provide. (See 202, 734; In re Gerardo B. (1989) 207 Cal.App.3d 1252, 1258; In re Anthony M. (1981) 116 Cal.App.3d 491, 503.) A court may also consider punishment as a rehabilitative tool, although that should not be its sole purpose. (In re Michael D., supra, 188 Cal.App.4th at p. 1396; 202, subd. (b).) Additionally, the juvenile court must also focus on the need for public protection in addition to the best interests of the minor. (In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684.) 4 3 Regardless of how appellant escaped from the group home in San Bernardino County, he has escaped from great distances and a similar level of restriction in Iowa may not stop him from doing it again. 4 In this regard, appellant has requested judicial notice of several documents documenting the DJJ s struggles. Of the submitted documents, we find only exhibits A, C, and E to satisfy the criteria for judicial notice. (Evid. Code, ) While we take notice of these documents, they do not alter our decision. That the DJJ has had difficulty fulfilling its mandate does not mean it cannot be of benefit to appellant. 8

9 Appellant contends the court did not sufficiently discuss the probable benefit appellant would receive from a DJJ commitment, and thus failed to act in his best interest. There is no merit to this claim. At disposition, the court ordered the placement because the DJJ was the only place that I feel he could get the educational disciplines he needs to reform. [ ]... [ ]... [H]is mental and physical condition and qualifications are such that would render it probable he d benefit from the reformatory educational disciplines and other programs provided by the [DJJ]. The court then listed the various DJJ programs from which appellant could benefit. Additionally, because the DJJ is a more restrictive facility, appellant will not be able to go AWOL. Accordingly, the closed setting of the facility and the length of his detainment will allow him to complete his education and obtain a high school degree and vocational training; a benefit unlikely to arise within a less restrictive placement. (See In re Jonathan T. (2008) 166 Cal.App.4th 474, 485 [finding sufficient evidence that Jonathan T. would benefit from a DJJ commitment because he would need a closed setting, i.e., DJJ, in order to succeed with a long-term rehabilitation program, because minor has a history of running away and has displayed violent behavior ].) Therefore, the record refutes appellant s claim there was no evidence of probable benefit from the DJJ commitment, and the court adequately discussed the potential benefits. 5 Appellant s final contention challenges the juvenile court s calculation of appellant s precommitment custody credit. A juvenile court should set forth the amount of precommitment custody credit to which appellant was entitled. (In re John H. (1992) 3 Cal.App.4th 1109, 1111.) Although the Attorney General concedes the minute order has already been amended to reflect 320 days of custody credit, the commitment order should be amended as well. 5 Appellant presents no precedent, and we find no controlling law, dictating that benefit must be stated in great detail, and it is clear that the court was considering appellant s benefit when the order was made. 9

10 III. DISPOSITION The juvenile court s order committing appellant to the DJJ is affirmed. However, the case is remanded to modify the commitment order to reflect appellant s precommitment credit for time served of 320 days. Margulies, J. We concur: Marchiano, P.J. Banke, J. 10

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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE A113846 Filed 2/16/07 In re S.S. CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication