In re D.J. CA1/3

Filed 12/1/22 In re D.J. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
In re D.J., a Person Coming Under
the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent, A164486
v.
(Contra Costa County
D.J.,
Super. Ct. No. J2100426)
Defendant and Appellant.
D.J. (Minor) appeals from a disposition order adjudging him an
indefinite ward of the court and committing him to the secure youth
treatment facility at Briones Youth Academy (BYA) after he pled no contest
to attempted voluntary manslaughter with firearm and great bodily injury
enhancements. Minor contends the juvenile court’s order was an abuse of
discretion because the evidence did not sufficiently show that his mental
health needs would be addressed at BYA. He also contends the evidence did
not support the court’s finding that a less restrictive alternative would have
been inappropriate. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Briefly, the facts underlying the offense are as follows. A restaurant
employee witnessed the shooting of her brother in the restaurant parking lot
during an apparent argument. The police found four spent bullet casings in
the parking lot.
After the shooting, Minor called his mother and told her he shot
someone. Minor’s mother retrieved him and subsequently flagged down a
police officer at which point Minor turned himself and his firearm (a ghost
gun) in. Minor, who was 17 years old, told the police that he shot the victim.
The victim—who was then 35 years old—had been shot once in the neck and
was thereby rendered a quadriplegic with major brain trauma.
The People filed a wardship petition pursuant to Welfare and
Institutions Code section 602, subdivision (a),1 charging Minor with one count
of attempted murder. (Pen. Code, §§ 664/187.) Minor pled no contest to an
amended count of attempted voluntary manslaughter (id., §§ 664/192), and
he admitted firearm and great bodily injury enhancements (id., §§ 12022.5 &
12022.7, subd. (b)). At his change of plea hearing, the court confirmed
Minor’s understanding that he could be confined in a locked facility for a
maximum period of 12 years. Minor further affirmed his understanding that
the charged offense was an offense enumerated in section 707,
subdivision (b), and that he could potentially be committed to the “most
restrictive facility . . . at the local county level,” which would be Secure Track
at BYA.2
In advance of the disposition hearing, a probation report was prepared
that detailed the circumstances of the offense. The probation report also
expressed great concern about Minor’s mental health, noting circumstances
1 All further statutory references are to the Welfare and Institutions
Code unless otherwise indicated.
2 This is sometimes referred to in the record as “Secure Pathway.” We
will generally refer to this as “Secure Track,” consistent with the parties’
briefs.
2
regarding Minor’s family, Minor’s mental and emotional state, and various
psychological diagnoses rendered after his detention.3 Among other things,
the report indicated Minor recently lost his uncle, a father figure, to suicide.
Minor self-reported his struggles with various mental health issues. The
report indicated Minor needed to address his mental health issues to
rehabilitate.
The probation report also expressed concern regarding Minor’s prior
history of possessing a weapon. About two school years prior, Minor had been
put on a year of informal probation for bringing a BB-gun to school. Minor
participated in counseling and community service while on probation.
Although Minor successfully completed his probation, he went on to commit
the instant offense.
The probation report noted Minor was assessed using the “Ohio Youth
Assessment System” (OYAS) in order to identify his “underlying motivation
for delinquent behavior” and to target his specific needs. OYAS indicated low
concern based on Minor’s peer and social support network, and values, beliefs
and attitudes. But there was moderate concern based on his juvenile justice
history; family and living arrangements; education and employment; pro-
social skills; and substance abuse, mental health, and personality. Overall,
under OYAS, Minor was deemed a low risk of re-offense.
The probation report recommended that the juvenile court adjudge
Minor an indefinite ward and commit him to Secure Track at BYA. The
report noted probation manager Malkia Crowder screened Minor and found
him eligible and suitable for Secure Track. In order to rehabilitate, Minor
would need to address his poor decision-making skills and mental health
3 To maintain confidentiality, we refrain from providing details in text
concerning Dr. Andrew Pojman’s diagnoses of Minor’s mental health issues.
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issues, and continue his education. Minor also needed structure and close
supervision in a safe and secure environment while participating in
treatment. At BYA, a multidisciplinary team would create an individualized
treatment plan for Minor, which could include programs like “Thinking for a
Change, Anger Replacement Training, Victim Empathy, Advanced Practice,
Free Your Mind, and Interactive Journaling.” BYA would also offer Minor
the opportunity to receive life skills, vocational training, and further
education,4 in line with its “holistic approach to create a rehabilitative
environment through collaboration with the community, family,
mental/behavioral health, and education, while offering the minor life skills
designed to promote vocational and educational success beyond the term of
commitment.” The report detailed Secure Track’s various “levels” of
treatment and noted that the court would receive updates of Minor’s progress
on Secure Track based on evaluations undertaken every six months.
At the disposition hearing, the juvenile court received a psychological
evaluation by Dr. Pojman, and letters from Minor, his mother, and others.
The sister of the victim made a statement discussing the impact of the offense
and the fact that the victim’s wife gave birth to a newborn child after the
shooting.
Minor’s counsel objected to probation’s recommendation that Minor be
committed to Secure Track at BYA and asked that the court instead commit
him to BYA’s Commitment Track.5 Minor’s counsel argued that Minor did
not meet the criteria for commitment to Secure Track under section 875,
4 With regard to his education, the report indicated Minor had poor
attendance and grades, and was far behind on credits he needed to graduate
from high school.
5 This is also referred to in the record as “Commitment Pathway.” We
will refer to this as “Commitment Track,” consistent with the parties’ briefs.
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subdivision (a)(3). And pointing to Minor’s mental health issues and
asserting they caused the offense, counsel argued that Commitment Track,
rather than Secure Track, would afford Minor the mental health treatment
he needs.
The juvenile court asked probation officer Edward Schuck to address
why various less restrictive settings would not be appropriate. Schuck
asserted generally that in cases involving the most serious violent crimes,
especially when a firearm is used, youths are not screened for placement in a
non-secure setting like a ranch or a short-term residential therapeutic
program, which would be open to the public and where youths could simply
leave at any time. Schuck further noted psychotropic medication cannot be
provided at a ranch, though he was unsure if Minor was taking medication
that would be disallowed. Schuck then explained that one commitment
packet is sent to BYA and screened to determine whether Commitment Track
or Secure Track is most appropriate. Schuck explained that the difference
between these tracks is “the dosage of treatment” and that Commitment
Track is “designed to provide approximately 200 hours of cognitive based
therapy.” Because “[a] lot of research has shown that for some of our most
serious offenders the minimum amount of cognitive behavior treatment that
has a significant impact is going to be approximately 300 hours,” Schuck
advised that Commitment Track is not usually the most appropriate
placement for someone who has committed a very serious offense and needs a
significant amount of treatment.
Probation manager Crowder testified that Commitment Track and
Secure Track are the only secure setting placements available in the county
(both are in juvenile hall). Commitment Track is a 10-and-a-half month
program, where youths receive individualized case and rehabilitation plans
5
that are based on their needs and include “evidence-based programming and
life skills and things that have been determined to be needed for the
individual.” Secure Track’s timeline is based on the recommendation of the
court, and youths in Secure Track receive an individualized rehabilitation
plan with more programming than those in Commitment Track. For
example, “Free Your Mind”—which is only available in Secure Track—is a
30-session program for individuals considered high risk that teaches positive
thinking and models behaviors such as emotional regulation, victim
awareness, and mental toughness. Crowder also explained that Interactive
Journaling is a program in which youths maintain individual journals and
write about specific lessons, and in Commitment Track there are six journals
whereas there are nine in Secure Track.
Crowder affirmed that youths in Secure Track have access to mental
health and psychological services throughout their commitment. Mental
health services at BYA include assigning every youth to a “behavioral health
specialist”—which is BYA’s term for a “mental health therapist”—who they
meet with once a week. BYA also is developing a “home component” where
youths will receive family therapy toward the end of their commitment.
The prosecutor argued that Minor needed the extra treatment offered
by Secure Track, and that Secure Track was the most appropriate setting for
Minor. Probation officer Schuck noted that, with good behavior, Minor’s term
of commitment in Secure Track could be adjusted.6 Minor’s counsel asked
that Minor be placed in Commitment Track at BYA, arguing he could be
rehabilitated there.
6 Presumably, Schuck was referring to the flexibility of commitments to a
secure youth treatment facility under section 875.
6
Ultimately, the juvenile court adjudged Minor an indefinite ward and
committed Minor to BYA’s Secure Track with a baseline term of two years
and a maximum term of 12 years or up to the age of 25, whichever occurs
first. The court found that this commitment would address the goals of
rehabilitation and community safety, and that a less restrictive alternative
than BYA’s Secure Track would be unsuitable for Minor. In making this
finding, the court noted the severity of the offense, including consequences to
the victim and his family; Minor’s minimal prior history, including his prior
term of probation; his age; his mental and emotional health; and his “other
special needs.” While acknowledging that BYA’s Secure Track and
Commitment Track are similar, the court observed that Commitment Track
would provide Minor with less “dosage” in terms of programming. The court
further noted that Secure Track could address Minor’s various distinct
treatment needs, including his mental health and emotional regulation
needs.
DISCUSSION
Minor contends the juvenile court abused its discretion in ordering him
committed to the secure youth treatment facility at BYA’s Secure Track. He
argues first that the evidence wholly failed to show that BYA could
adequately and appropriately address his significant mental health needs.
Next, he argues the evidence failed to establish that a less restrictive
placement was unsuitable.
A. Legal Principles and Standard of Review
In determining the appropriate disposition in a section 602 case, “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.”
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(§ 725.5.) Courts should also consider “the safety and protection of the public,
the importance of redressing injuries to victims, and the best interests of the
minor in all deliberations.” (§ 202, subd. (d).) Further, courts must “consider
‘the broadest range of information’ in determining how best to rehabilitate a
minor and afford [the minor] adequate care.” (In re Robert H. (2002) 96
Cal.App.4th 1317, 1329.)
If a minor is adjudged a ward under section 602, “the court may make
any reasonable orders for the care, supervision, custody, conduct,
maintenance, and support of the minor.” (§ 727, subd. (a)(1).) Courts have
the discretion to place such wards on probation or to order commitment to a
juvenile home, ranch, camp, or forestry camp. (§§ 727, subd. (a)(2)–(3), 730,
subd. (a).) Additionally, a court may order commitment to a secure youth
treatment facility if the ward meets all of the following criteria: “(1) The
juvenile is adjudicated and found to be a ward of the court based on an
offense listed in subdivision (b) of Section 707 that was committed when the
juvenile was 14 years of age or older. [¶] (2) The adjudication described in
paragraph (1) is the most recent offense for which the juvenile has been
adjudicated. [¶] (3) The court has made a finding on the record that a less
restrictive, alternative disposition for the ward is unsuitable.” (§ 875,
subd. (a)(1)–(3).)
Placement decisions are reviewed for abuse of discretion. (In re Nicole
H. (2016) 244 Cal.App.4th 1150, 1154.) “We review the court’s findings for
substantial evidence, and ‘ “[a] trial court abuses its discretion when the
factual findings critical to its decision find no support in the evidence.” ’
[Citation.] ‘ “ ‘ “In determining whether there was substantial evidence to
support the commitment, we must examine the record presented at the
disposition hearing in light of the purposes of the Juvenile Court Law.” ’ ” ’ ”
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(Ibid.) The purpose of juvenile court law “is to provide for the protection and
safety of the public and each minor . . . and to preserve and strengthen the
minor’s family ties whenever possible, removing the minor from the custody
of his or her parents only when necessary for his or her welfare or for the
safety and protection of the public.” (§ 202, subd. (a).) “Minors under the
jurisdiction of the juvenile court as a consequence of delinquent conduct shall,
in conformity with the interests of public safety and protection, 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 this chapter.” (Id., subd. (b).)
B. Analysis
To reiterate, Minor contends the juvenile court abused its discretion in
committing him to BYA’s Secure Track. In Minor’s view, “no evidence was
presented which established that the mental health resources at BYA were
appropriate to meet [his] specific mental health treatment needs, as set forth
in Dr. Pojman’s report.” Instead, he claims, “the probation department stated
in its report and at the disposition hearing, only generally, that the Secure
Track would provide more ‘intensive treatment.’ ” We are unpersuaded.
First of all, to the extent Minor complains about his commitment to
BYA itself, we observe Minor’s counsel specifically asked the court at the
disposition hearing to commit Minor to BYA’s Commitment Track. In so
doing, Minor forfeited his current appellate challenge to a BYA commitment.
(In re Aaron B. (1996) 46 Cal.App.4th 843, 846.)
But even assuming the contention was not forfeited, we would reject it
on its merits. In recommending commitment to BYA’s Secure Track, the
probation report expressed concern that Minor’s untreated mental health
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issues needed to be addressed to rehabilitate Minor. According to the
probation report and the testimony of probation manager Malkia Crowder,
BYA would assess Minor’s needs and create an individualized rehabilitation
plan providing Minor with programming and services, including behavioral
programs addressing positive thinking, emotional regulation, and victim
awareness, as well as vocational and college courses. If committed to Secure
Track, Minor would be assigned a “behavioral health specialist”—i.e., a
mental health therapist—to meet with once a week and would have access to
mental health and psychological services throughout his commitment.
Furthermore, Minor would attend a review hearing at six-month intervals,
which would provide the court with updates as to Minor’s progress.
Commitment to Secure Track would also include an opportunity for Minor to
be in a transitional unit that would prepare him for successful reintegration
into the community. All this evidence amply supported the conclusion that
Minor would receive treatment appropriate to meet his specific mental health
needs.
Minor’s reliance on In re Carlos J. (2018) 22 Cal.App.5th 1 (Carlos J.),
is unavailing. In Carlos J., the probation report recommended a minor’s
commitment to the Division of Juvenile Facilities (DJF) but failed to
document the specific treatment the minor would receive there, and no
witnesses testified at the disposition hearing. (Id. at pp. 7–9.) Moreover, a
psychologist opined the minor needed treatment for PTSD and discouraged a
commitment to DJF. (Id. at p. 8.) The Carlos J. court reversed the juvenile
court’s order committing the minor to DJF (id. at p. 9), finding no substantial
evidence of probable benefit from the commitment because the record
contained “no specific information in the record regarding the programs at
the DJF.” (Id. at p. 4.) The court indicated that, as part of the initial
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showing required to support a DJF commitment, “the probation department,
in its report or testimony, [should] identify those programs at the DJF likely
to be of benefit to the minor under consideration. Where a minor has
particular needs, the probation department should also include brief
descriptions of the relevant programs to address those needs.” (Id. at p. 12.)
The Carlos J. court was clear, however, that “the probation department
is not required in its report and initial testimony to provide indepth
information about the DJF’s programs or to preemptively respond to even
predictable criticisms of the DJF. Under Evidence Code section 664, where
the probation officer has identified programs of benefit to a minor and
provided brief information about the most important programs, it may be
presumed the probation officer’s recommendation is based on an assessment
the programs are available and appropriate. If a minor wishes to dispute the
availability or efficacy of particular programs, or to suggest that other
conditions at the DJF undermine the programs, the minor must present
sufficient evidence to reasonably bring into question the benefit he or she will
receive from the adoption of the probation department’s recommendation.”
(Carlos J., supra, 22 Cal.App.5th at p. 13, italics added.)
In stark contrast to the situation in Carlos J., here the probation
report, the report of Dr. Pojman, and testimony at the disposition hearing
identified both Minor’s mental health issues and the specific programming
and treatment Minor could receive at BYA’s Secure Track. Minor presented
nothing to dispute the availability or efficacy of the available programming
and treatment at BYA. As such, Carlos J. is amply distinguishable and
provides no basis for overturning the juvenile court’s commitment order.
We next turn to Minor’s alternative contention that there was no
substantial evidence of the unsuitability of a less restrictive alternative than
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Secure Track. In support of this claim, Minor asserts that the probation
report did not state he was unsuitable for Commitment Track and that the
record is “ ‘barren’ ” as to why Commitment Track7 or a non-BYA
commitment would be unable to address his needs. This, too, is a meritless
claim.
In order to commit a minor to a secure treatment facility, a court must
make a finding that a less restrictive alternative disposition is unsuitable.
(§ 875, subd. (a)(3).) The court must consider all relevant and material
evidence, the views of the probation department and counsel, and the
following criteria: “(A) The severity of the offense or offenses for which the
ward has been most recently adjudicated, including the ward’s role in the
offense, the ward’s behavior, and harm done to victims. [¶] (B) The ward’s
previous delinquent history, including the adequacy and success of previous
attempts by the juvenile court to rehabilitate the ward. [¶] (C) Whether the
programming, treatment, and education offered and provided in a secure
youth treatment facility is appropriate to meet the treatment and security
needs of the ward. [¶] (D) Whether the goals of rehabilitation and community
safety can be met by assigning the ward to an alternative, less restrictive
disposition that is available to the court. [¶] (E) The ward’s age,
developmental maturity, mental and emotional health, sexual orientation,
gender identity and expression, and any disabilities or special needs affecting
7 There is nothing in the record indicating the dissimilarity of the
security restrictions on minors while they are in either Commitment Track or
Secure Track at BYA. Minor appears to be arguing that Commitment Track
is a less restrictive alternative based on the limited length of time minors can
be placed in Commitment Track and the additional programming minors in
Secure Track receive.
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the safety or suitability of committing the ward to a term of confinement in a
secure youth treatment facility.” (Ibid.)
Here, the record reflects that the juvenile court considered all the
relevant evidence and required criteria and that substantial evidence
supported the court’s explicit finding that a less restrictive placement, such
as placement in a non-secure treatment facility, would be unsuitable for
Minor. Specifically, the evidence established that BYA’s Commitment Track
and Secure Track were the only secure treatment settings available in the
county. Indisputably, the offense in this case was extremely serious and
Minor’s actions had severe, life altering consequences for the victim and his
family. Beyond the seriousness of the offense, evidence was also presented
concerning Minor’s age, immaturity, and significant mental health issues.
And though Minor’s prior delinquent history was minimal, Minor had
recently been on probation for about one year for bringing a BB-gun (which
was modified to look like a real gun) to school after a fight with another
student. Despite Minor’s receipt of counseling and some programming while
on probation, this prior treatment proved insufficient to rehabilitate Minor or
to protect the community, as Minor went on to commit the instant offense
with a “ghost gun.”
Substantial evidence also supported the conclusion that placement in
BYA’s Commitment Track would be unsuitable for Minor. The testimony at
the disposition hearing established that Commitment Track was only 10-and-
a-half months long, which was shorter than Minor’s year on informal
probation, while Secure Track’s timeline was based on the recommendation of
the court. Similarly, Commitment Track provided only about 200 hours of
cognitive based therapy, whereas the probation officer here pointed to
research showing that “for some of [the] most serious offenders the minimum
13
amount of cognitive behavior treatment that has a significant impact is going
to be approximately 300 hours.” Moreover, Crowder testified that in Secure
Track, youths receive an individualized rehabilitation plan with more options
than in Commitment Track program, including programs like “Free Your
Mind, a longer dosage of our interactive journaling, advanced practice and,
also, [BYA’s] vocational program and . . . college courses.” Furthermore,
Secure Track would provide Minor with access to mental health and
psychological services, including weekly meetings with a mental health
therapist, throughout his commitment.
Minor contends the finding of unsuitability should not be based on the
seriousness of his offense alone, as section 875, subdivision (a)(3) requires
consideration of all enumerated factors. But again, the record here reflects
the court considered all relevant and material evidence presented and all of
the factors set out in section 875. Section 875 does not require the court to
assign weight to any of the criteria in a specific manner; it only requires that
the court consider all of the criteria in making its determination. (§ 875,
subd. (a)(3).) Thus we reject Minor’s suggestion that the court misweighed
the criteria or that it should have weighed them differently. In conducting a
review for substantial evidence, we do not reweigh the evidence. The record
here amply supports the court’s finding that a less restrictive, alternative
disposition would not be suitable for Minor.
In sum, we conclude the juvenile court did not abuse its discretion in
committing Minor to BYA’s Secure Track.
DISPOSITION
The order of the juvenile court is affirmed.
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FUJISAKI, J.
WE CONCUR:
TUCHER, P.J.
RODRÍGUEZ, J.
In re D.J. (A164486)
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