In re D.T. CA4/2 ( 2022 )

Filed 10/13/22 In re D.T. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re D.T., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
E077860
Plaintiff and Respondent;
(Super.Ct.No. J286935)
v.
OPINION
D.T.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Bryan K. Stodghill,
Judge. Affirmed.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Heather B.
Arambarri, Deputy Attorneys General, for Plaintiff and Respondent.
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D.T., the minor, along with his friend, A.M., robbed a man in a vacant field, each
armed with a firearm. During the robbery, which was observed by an eyewitness whose
residence was adjacent to the field, the victim tried to grab D.T.’s weapon, and D.T. fired
three shots, two of which struck the victim, killing him. D.T. and his coparticipant, fled
and were eventually arrested. At the minor’s adjudicatory hearing, A.M. testified for the
prosecution with a grant of immunity resulting in a true finding on the wardship petition
pursuant to Welfare and Institutions Code section 602, subdivision (a), alleging acts
which would be crimes if committed by an adult, including murder (Pen. Code, § 187,
subd. (a)), with a gun discharge enhancement (Pen. Code, § 12022.53, subd. (d)), robbery
(Pen. Code, § 211), and assault with a firearm (Pen. Code, § 245, subd. (a)(2)). The
minor was committed to a Secure Youth Treatment Facility (SYTF) and appeals.
On appeal, the minor asserts the disposition must be reversed because the juvenile
court abused its discretion by committing the minor without first obtaining a mental
health evaluation. We affirm.
BACKGROUND
On January 31, 2021, at approximately 10:00 p.m., Deven Talbert was washing his
car outside his residence when he saw a man, later identified as Gregory Garcia, carrying
cans and bottles in a black trash bag walk past him, heading east towards a vacant field
that abutted Talbert’s residence property. A short time later, Talbert heard chatter in the
field, in which someone with a youthful, prepubescent voice made repeated use of the
2
word “n--ga.”1 Talbert went to the opening in the fence and looked in the direction of the
voices and saw three people, one of whom was the man he had seen entering the field a
bit earlier. It appeared the three people were arguing.
Of the two people confronting Garcia, one was the minor D.T., age 14, who wore
an orange hoodie that covered his head, while the other, A.M., wore a sweatshirt with
writing on it. Talbert assumed they were both African-American because of the use of
the racial epithet. Talbert soon realized the two persons were robbing Garcia because the
person in the sweatshirt started going through Garcia’s pants and backpack while the one
in the hoodie stood by, holding a gun. A.M., who was the person in the sweatshirt, pulled
a phone and a key from the victim’s pocket; Talbert could tell that it was a phone because
the screen lighted up upon removal. While A.M. held the phone and key up to the
victim’s face, D.T. pointed a gun at the victim’s chest, which he chambered, and told the
victim to give him everything he had.
A few seconds passed but there was nothing more to be gotten, so the person in
the sweatshirt punched the victim, who stumbled backward, and then stepped forward.
The person in the hoodie kicked the victim in the shin or leg area. Then the victim
walked up to both of them and grabbed at the gun held by D.T.; there was a brief struggle
over the firearm, and then D.T. fired three shots, two of which struck the victim, killing
him. The two juveniles stood still for a few seconds, then A.M. put his foot on the man
as if to check for signs of life or resuscitate the victim, and D.T. asked, “Is he ok?”
1 The speaker used a derogatory term for African Americans.
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Talbert phoned the police to report the crime. Talbert saw the two youths use their
phones as flashlights to search the area around the victim’s body and rummage through
his belongings and pockets. Then one of the juveniles, A.M., ran into a ditch and
continued in the direction of an apartment complex situated across the field to the south
of Talbert’s residence, while D.T. stayed around for a bit.
Police quickly responded, and, after taking a report from Talbert, units went to the
apartments where A.M. was soon detained, after discarding a clip, as well as the phone
and the key he had taken from the victim. A few days later, after obtaining Instagram
records involving messages between A.M., D.T., and A.M.’s older brother R.M., D.T.
was also detained. An autopsy revealed the cause of death was two gunshot wounds to
the victim’s chest and abdomen.
D.T. was charged in a subsequent wardship petition with the commission of three
offenses which would be felonies if committed by an adult. (Welf. & Inst. Code, § 602,
subd. (a).) Count 1 alleged the murder of Gregory Garcia (Pen. Code, § 187, subd. (a));
count 2 alleged robbery (Pen. Code, § 211), and count 3 alleged an assault with a firearm
(Pen. Code, § 245, subd. (a)(2)). In addition, respecting count 1, it was further alleged
D.T. personally and intentionally discharged and used a firearm (Pen. Code, § 12022.53,
subds. (b), (c), (d)). Further, the petition alleged the People’s intent to aggregate the
terms of the previous petition sustained against D.T., in which D.T. was declared a ward
for assaulting his mother, which would be a misdemeanor if committed by an adult.
4
Following an adjudicatory hearing, the juvenile court sustained the petition as to
all counts and enhancements. The disposition report provided information regarding the
minor’s affiliation with members of the street gang Alley Boys, and with A.M., a
documented member of the gang GIA (Gangsters in Action). It also noted his family
history of being removed from his mother shortly after being born with a positive
toxicology screen for amphetamine, and his mental health issues, including his diagnoses
of Attention Deficit Disorder (ADD), Attention Deficit Hyperactivity Disorder (ADHD),
anger issues, and learning disabilities. At the disposition hearing, the court continued the
minor as a ward, finding that the current offense is a Welfare and Institutions Code
section 707, subdivision (b) offense. The court removed custody from his legal
guardian2, and found he was suitable for commitment to a SYTF at the Gateway to
ARISE program.
The court’s commitment order included the maximum terms the minor would have
faced if convicted as an adult: 25 years to life for count 1, 1 year consecutive for count 2,
and 4 months consecutive for count three. This was modified at a subsequent non-
appearance hearing to include 25 years to life for the gun discharge enhancement. In
terms of his commitment time at SYTF, total maximum confinement time available is
eleven (11) years, until D.T. reaches the age of 25.
The minor timely appealed.
2D.T. was raised by his maternal grandmother practically from birth, because
D.T. was born with amphetamines in his system due to his mother’s chronic drug use.
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DISCUSSION
Minor’s sole argument on appeal is that the trial court abused its discretion by
committing the minor to SYTF without first ordering a psychological evaluation of the
minor, based on his history of ADD, ADHD, anger issues, and learning disabilities. The
People respond that the issue was forfeited by the minor’s failure to request a psychiatric
or psychological evaluation in the trial court. We agree that any error was forfeited, but
even if the issue had been preserved, there was no abuse of discretion.
a. Any Error Flowing From the Failure to Order and Consider a Psychological
or Psychiatric Evaluation Was Forfeited By Minor’s Failure to Request It.
Respondent points out that the minor failed to request a psychological or
psychiatric evaluation in the trial court, and failed to object to the court conducting the
disposition hearing without having ordered and considered a mental health assessment for
the minor, thereby forfeiting the error. We agree.
It is well established that procedural errors may not be raised at the appellate level
if they were not raised in the trial court level. “‘[E]ven constitutional rights, including
those of a minor in the area of juvenile court procedure, will ordinarily be waived by
silence, i.e., by their nonassertion.’” (In re Christopher S. (1992) 10 Cal.App.4th 1337,
1344, quoting In re James D. (1981) 116 Cal.App.3d 810, 817.)
The forfeiture rule even applies when a party fails to object to the adequacy of —
or the failure to prepare — mandatory assessment reports in juvenile dependency
proceedings. (In re M.V. (2014) 225 Cal.App.4th 1495, 1508-1509, citing In re Dakota
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S. (2000) 85 Cal.App.4th 494, 502 [failure to prepare Welf. & Inst. Code, § 366.22
assessment waived by failure to object despite that provision’s mandatory language]; In
re Crystal J. (1993) 12 Cal.App.4th 407, 411–413 [inadequacy of mandatory adoption
assessment under Welf. & Inst. Code, § 366.21, subd. (i) waived by failure to object]; see
also In re Aaron B. (1996) 46 Cal.App.4th 843, 846 [similar waiver of challenge to
mandatory adoption assessment].)
The minor concedes no objection was made at the hearing but asserts the issue is
not forfeited because it is an error of constitutional dimension. Yet, even constitutional
errors may be forfeited by the failure to assert them timely. (Yakus v. United States
(1944) 321 U.S. 414, 444 [64 S.Ct. 660, 88 L.Ed. 834; see also, United States v Olano
(1993) 507 U.S. 725, 731 [113 S.Ct. 1770, 123 L.Ed.2d 508].) Here, there was no
mandatory requirement that an assessment be ordered, so, in the absence of a request, the
issue is forfeited.
b. Notwithstanding the Forfeiture, the Juvenile Court’s Disposition Order Was a
Proper Exercise of Discretion.
Even on the merits, reversal would not be required. Following the adjudication of
a petition, the juvenile court may order and adjudge a minor to be a ward of the court.
(Welf. & Inst. Code, § 725, subd. (b).) When exercising its discretion on the proper
disposition of a minor adjudged to be a ward under Welfare and Institutions Code section
602, the juvenile court considers a broad range of information, including a probation
officer’s report and any other relevant and material evidence that may be offered,
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including statements by the victim and, for victims who are minors, the victim’s parents.
(§ 706.)
Additionally, in making its dispositional orders, “the 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; In re John F. (1983) 150
Cal.App.3d 182, 185.) “‘[T]he purpose of the juvenile justice system is “(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 community’, and (2) to ‘provide for the protection and safety of
the public . . . .’ [Citations]” [Citation.]’” (In re Greg F. (2012) 55 Cal.4th 393, 417,
quoting In re R.O. (2009) 176 Cal.App.4th 1493, 1500.) There is no mandatory
requirement that the court order a psychiatric or psychological evaluation of a minor
before making dispositional orders.
A juvenile court’s commitment decision is reviewed for abuse of discretion,
indulging all reasonable inferences to support its decision. (In re N.C. (2019) 39
Cal.App.5th 81, 85, citing In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) “‘A
juvenile court’s commitment order may be reversed on appeal only upon a showing the
court abused its discretion. [Citation.]’” (In re Jonathan T. (2008) 166 Cal.App.4th 474,
485, quoting In re Robert H. (2002) 96 Cal.App.4th 1317, 1329–1330.)
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Here, the minor argues the court abused its discretion by ordering his commitment
to SYTF without the benefit of a psychological or psychiatric evaluation. Yet, the minor
cites no authority requiring that a court consider such ancillary material and does not
demonstrate how the dispositional order would have been more favorable to him if such
an evaluation had been conducted.
The juvenile court considered all the matters it was mandated to consider in
making the dispositional order, that is, the probation report and recommendation (Welf.
& Inst. Code, § 706) and the factors identified in Welfare and Institutions Code section
725.5. Aside from the requisite items for consideration, the court had discretion,
pursuant to Welfare and Institutions Code section 741, to “order that the probation officer
obtain the services of such psychiatrists, psychologists, physicians and surgeons, dentists,
optometrists, audiologists, or other clinical experts as may be required to assist in
determining the appropriate treatment of the minor and as may be required in the conduct
or implementation of the treatment.” (Emphasis added.) But these services are not
required before making a dispositional commitment, as is evident from the use of the
words “may” and “treatment.” The fact that the probation officer had recommended an
evaluation in connection with D.T.’s original petition from his previous matter, which
was never carried out, does not mean such an evaluation was required in the current
proceeding, where no similar recommendation was made by the probation officer.
Therefore, even if a timely request had been made, reversal would not be required absent
a showing of prejudice.
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We recognize that lengthy commitment for a minor as young as D.T. is harsh, but
it does not mean a commitment to SYTF was an abuse of discretion where that facility
has the intensive treatment and training necessary for his rehabilitation. (See In re
Joseph H. (2015) 237 Cal.App.4th 517, 544-545 [commitment of 11 year-old minor to
DJF for murder upheld because structure and nature of programs at DJJ were best suited
for minor’s complex problems].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
FIELDS
J.
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