Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. 06CEJ600296-3 David C. Kalemkarian, Judge.
Linda K. Harvie, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Levy, Acting P.J.
Appellant A.V. admitted one count of assault by means likely to produce great bodily injury and/or assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), and an enhancement for personally inflicting great bodily injury. (Pen. Code, § 12022.7, subd. (a).) Following the dispositional hearing, the juvenile court committed appellant to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ), formerly known as the California Youth Authority, for a maximum term of five years. Appellant appeals, contending the court abused its discretion in committing him to the DJJ. He also contends the court failed to ensure compliance with notice and inquiry duties under the Indian Child Welfare Act (ICWA), and failed to provide advisements with respect to his right to a restitution hearing. For the reasons explained below, appellant’s contentions lack merit. We will affirm the judgment.
FACTUAL HISTORY
On September 28, 2009, appellant attempted to steal a video game from a retail store by grabbing it off the counter and running out the door. His efforts, however, were thwarted by the store clerk and a helpful citizen, who chased appellant and confronted him several blocks later. The clerk told appellant to drop the video game and leave the area.
Appellant, acting perhaps out of fear, and under the influence of alcohol and marijuana, instead attacked the clerk with a small knife with a one to one-and-a-half inch-long blade, slashing the clerk’s forearm. The clerk punched appellant, and the two struggled for possession of the game, during which appellant stabbed the store clerk twice in the back. The citizen helped the store clerk subdue appellant until police and emergency personnel arrived.
The district attorney filed a petition under Welfare and Institutions Code section 602 alleging assault, second degree robbery, second degree burglary, and possession of less than 28.5 grams of marijuana. At the detention hearing, appellant’s mother signed a form indicating she may be of Cherokee heritage, which was filed with the court.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
Appellant admitted the assault allegation and the personal infliction of great bodily injury enhancement. The other allegations were dismissed with the district attorney reserving the right to restitution and to comment on them. The probation officer recommended a DJJ commitment of seven years, given the violent nature of the offense, appellant’s use of a weapon, his violent conduct, and his unsatisfactory prior performance while on probation. The defense submitted a statement in mitigation, highlighting appellant’s troubled personal and family history, his lack of serious prior criminal history, his substance abuse problems, and his good behavior while incarcerated in juvenile hall. Appellant, his mother, his grandmother, a family friend, and the clinical coordinator for a substance abuse treatment organization, submitted letters to the court expressing their concern with a possible DJJ commitment and requesting a more lenient sentence.
At sentencing, the court provided a measured explanation of its reasoning before committing appellant to the DJJ for a maximum of five years. The court balanced factors supporting commitment to the DJJ against mitigating factors. Supporting factors included ineffective prior attempts at local rehabilitative options while appellant was on probation; appellant’s history of assaultive behavior; his poor grades and disruptive behavior in school; and the serious nature of the offense, which involved the use of a weapon-a fact the court emphasized.
In 2006, appellant pushed his friend down, injuring his friend’s knee, and stole his bike, returning it later when his friend’s mother chose to press charges. A petition was filed and appellant admitted to misdemeanor grand theft. (Pen. Code, § 487, subd. (c).) He was put on probation for one year, with terms and restrictions, including electronic monitoring, community service, and anger management program enrollment obligations. He violated probation a few months later when he ran away from his legal guardians’ home, and failed to comply with various terms of his probation. He subsequently committed a misdemeanor battery, for which another petition was filed, but which was merged with his prior probation violation petition.
Appellant tested positive for marijuana on multiple occasions and drank copious amounts of alcohol-up to 15 drinks a day. He did, however, complete probation successfully in 2007 and did not have further criminal activity until the assault. In 2003, he had stolen a pair of shorts from a department store.
Between 2001 and 2007, appellant was suspended from school on 13 occasions. The underlying reasons for the suspensions ranged from defiant behavior to fighting to making a threat to a teacher when held after class. He also gave a knife to another student and disrespected a female student.
Mitigating factors included appellant’s good behavior while incarcerated in juvenile hall, his “relatively insignificant criminal record with no felonies, ” his lack of gang associations, and the fact he was under the influence at the time of the offense. The court also took into consideration the letters written by outside parties, and expressly stated the two-pronged standard it had to adhere to in committing appellant to the DJJ, i.e., that commitment “would result in a probable benefit to [A.V.] and that less restrictive local programs would either be ineffective or inappropriate.”
Explicitly addressing each prong, the court first stated, “regarding a probable benefit... if [A.V.] was committed to the DJJ, he would be considered a category four offender with a targeted parole date in two years. In there he would be eligible for a high school program, victim awareness classes, anger management classes, and other programs as needed, including substance abuse treatment. And if he completed high school while there, he would be eligible for vocational training or an AA degree program.”
Regarding less restrictive local programs, the court declined to determine whether or not they would be ineffective, but found them inappropriate given the circumstances. The court stated, “a less restrictive local program would be inappropriate, and that is based on the following: [A.V.’s] history of prior assaultive behavior, the extremely serious nature of this offense, the fact that a weapon was used and that the victim could have easily been killed, the safety of the community, which seems to be at stake when [A.V.] is out and about, and also for the accountability of the minor.” The court also noted appellant had been on formal probation in the custody of a parent or guardian previously and “has failed to reform.” The court set the maximum period of confinement at five years, which was less than the possible seven-year maximum confinement recommended by the probation officer.
The victim alleged over $1,000 in medical bills, but at the time of the dispositional hearing had yet to provide hospital statements substantiating his claim. Thus, with respect to restitution, the court stated, “[A.V.] is to pay restitution to the victim as determined by the probation officer and collected by the California Department of Corrections and Rehabilitation Division of Juvenile Justice.” The court advised appellant and his mother they were jointly and severally liable for restitution, fines, and penalties assessed by the court, and he had a right to appeal the orders and decisions made in his case.
DISCUSSION
I. DJJ Commitment.
Appellant argues the juvenile court abused its discretion in committing him to DJJ because insufficient evidence showed that: (1) a DJJ commitment would provide a probable benefit to him, and (2) less restrictive alternatives were either ineffective or inappropriate. We find no abuse of discretion.
A. Standard of review.
“The appellate court reviews a commitment decision for abuse of discretion, indulging all reasonable inferences to support the juvenile court’s decision. [Citations.]” (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) Under section 734, “[n]o ward of the juvenile court shall be committed to the Youth Authority 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 Youth Authority.” In making its judgment, the court must also consider the minor’s age, the circumstances and gravity of the offense, and the minor’s previous delinquent history. (§ 725.5.)
Commitment to the DJJ cannot be based solely on retribution grounds. (In re Michael D. (1987) 188 Cal.App.3d 1392, 1396.) Evidence must demonstrate (1) a probable benefit to the minor and (2) that less restrictive alternatives are ineffective or inappropriate. (Ibid.) However, “when we assess the record in light of the purposes of the Juvenile Court Law [citation], we evaluate the exercise of discretion with punishment and public safety and protection in mind.” (In re Lorenza M. (1989) 212 Cal.App.3d 49, 58.) We will not disturb the juvenile court’s findings if substantial evidence supports them. (In re Jonathan T. (2008) 166 Cal.App.4th 474, 485 (Jonathan T.).) We find here that substantial evidence supports both a probable benefit to appellant, and that less restrictive alternatives were inappropriate.
B. Probable benefit.
Appellant asserts there was insufficient evidence he would receive a probable benefit from a DJJ commitment. He makes a number of arguments, but essentially posits that DJJ commitment here is excessively retributive, rather than rehabilitative. Appellant attempts to support his contention on distinctions in wording between the probation report and the court’s reasoning, and an outdated description of the state of the former California Youth Authority. We are not persuaded.
The probation officer reported that appellant, following a needs assessment upon arrival at the DJJ, “may be” eligible for programs to address his various needs, such as anger management classes, substance abuse treatment, and educational programs, including high school and higher education degrees. The juvenile court stated appellant “would be” eligible for those programs. Appellant thus contends the trial court believed he was guaranteed access to the programs he qualified for, when, in fact, he was not guaranteed access. Appellant argues without participation in substantive rehabilitative programs, the DJJ commitment becomes solely a form of retribution, rather than a punishment consistent with the rehabilitative and accountability purposes underlying the Juvenile Court Law.
Appellant also asserts that since the probation officer’s report provided no further detail about rehabilitative programs available in the DJJ, the court could not have known the details of the programs available to appellant and thus had insufficient support for a finding that appellant would probably benefit from them. In other words, the court did not find how appellant would benefit from a DJJ commitment and therefore could not determine he would probably benefit at all.
The juvenile court need only determine if the record supports a finding that it is probable the minor will benefit from being committed to the DJJ. (Jonathan T., supra, 166 Cal.App.4th at p. 486.) “There is no requirement that the court find exactly how a minor will benefit from being committed to DJJ. The court is only required to find if it is probable a minor will benefit from being committed....” (Ibid.) The probation officer’s report noted that appellant was doing poorly in school, failed to attend classes regularly, was failing his classes, and was abusing alcohol and drugs on a daily basis. It is not unreasonable to believe that appellant would most likely qualify for any number of treatment programs, and would probably benefit from the structure and discipline imposed on him at the DJJ. The court so stated on the record, “[t]he mental and physical condition of the minor are such as to render it probable that the minor will benefit by the reformatory and educational discipline or other treatment provided by the [DJJ].” This is supported by the improvement in behavior he exhibited while detained in the confines of juvenile hall. (See Jonathan T., supra, 166 Cal.App.4th at p. 486 [“it is not merely the programs at DJJ which provide a benefit to minor, but the secure setting as well”].)
Appellant also alleges the DJJ fails to provide adequate rehabilitative services based on issues brought to light by Farrell v. Cate (Super. Ct. Alameda County, 2005, No. RG 03079344), a lawsuit brought on behalf of inmates of state juvenile facilities and subsequently settled by consent decree. Appellant, however, seems to assume that DJJ conditions that resulted in litigation in 2004 and 2005 remain in place today. Without any evidence to the contrary, we presume the DJJ is complying with its stipulations to reform its facilities and programs, and is otherwise adhering to the policy set forth in section 1700. (Evid. Code, § 664.)
Section 1700 states: “The purpose of this chapter is to protect society from the consequences of criminal activity and to that purpose community restoration, victim restoration, and offender training and treatment shall be substituted for retributive punishment and shall be directed toward the correction and rehabilitation of young persons who have committed public offenses.”
C. Less restrictive local alternatives.
While the Juvenile Court Law contemplates a progressively restrictive and punitive series of dispositions, there is no absolute rule that a minor must have attempted a less restrictive placement before the juvenile court may order a DJJ commitment. (In re Ricky H. (1981) 30 Cal.3d 176, 183 (Ricky H.).) In Ricky H., appellant challenged his Youth Authority commitment on grounds the judge failed to give adequate consideration to less restrictive alternatives, noting specifically that the probation report lacked data regarding alternative placements. (Id. at p. 182.) Our Supreme Court rejected this contention, noting that, “[t]his court cannot assume that the superior court judge, who presided over the dispositional hearing and heard appellant’s counsel’s arguments, gave them no consideration or completely failed to evaluate appellant’s suitability for the Youth Authority.” (Id. at pp. 183-184.)
Here, defense counsel raised less restrictive alternatives both in a statement in mitigation filed before the sentencing hearing, and in oral arguments at the sentencing hearing. The probation report specifically stated that less restrictive alternatives were inappropriate, opining that the minor was a clear danger to the community and “local custodial programs are inadequate to hold the minor responsible for actions of this degree.” The juvenile court explicitly stated specific reasons on the record when it determined that less restrictive alternatives would be inappropriate. The court had also commented earlier that while appellant was on probation, community service, electronic monitoring, anger management classes, and a day reporting center commitment, including mental health treatment, were all previously attempted.
If the court finds less restrictive alternatives inappropriate, the court need not find them also ineffective. (See Ricky H., supra, 30 Cal.3d at p. 184.)
We recognize the record may indicate the presence of various factors that could support a less restrictive disposition. However, nothing in the record compels such a result. (See In re Reynaldo R. (1978) 86 Cal.App.3d 250, 256 [DJJ commitment was not an abuse of discretion despite fact that minor’s record justified less restrictive disposition]; see also In re Gerardo B. (1989) 207 Cal.App.3d 1252, 1258.) There was, as indicated above, substantial evidence that appellant could benefit from a DJJ commitment and the court reasonably believed a less restrictive disposition would not be adequate to hold appellant accountable for the serious offense he committed or to provide for the safety and protection of the public. (Cf. In re Teofilio (1989) 210 Cal.App.3d 571, 577-578.) The court did not abuse its discretion in ordering appellant committed to the DJJ.
II. ICWA Does Not Apply Where There Is No Risk Of Entering Foster Care.
Appellant next asserts the juvenile court erred in failing to ensure compliance with inquiry and notice duties under California laws and rules implementing ICWA. The Third District Court of Appeal recently addressed the application of ICWA to juvenile delinquency hearings. (R.R. v. Superior Court (2009) 180 Cal.App.4th 185 (R.R.).)We incorporate much of its analysis here, and find that appellant was not “at risk of entering foster care” for purposes of triggering inquiry and notice requirements under ICWA. (§§ 224.3, subds. (a)-(d), 727.4, subd. (d)(2).)
The Federal ICWA provisions govern child custody proceedings involving Indian children. (25 U.S.C. § 1901 et seq.) Title 25 United States Code section 1903(1) expressly excludes from ICWA application the placement of a child resulting from the disposition of a delinquency petition. However, when the California Legislature implemented ICWA by adopting sections 224 through 224.6, it imposed on the court “an affirmative and continuing duty to inquire” as to a child’s possible Indian heritage “in any juvenile wardship proceedings if the child is at risk of entering foster care or is in foster care.” (§ 224.3, subd. (a).) Sections 224.3, subdivision (d) and 224.2 set forth the court’s duty to provide proper notice in such proceedings. The Judicial Council has adopted rules of court governing the requirements of inquiry and notice. (Cal. Rules of Court, rules 5.481-5.484.) These rules are specifically made applicable to proceedings under section 602 in which the child is at risk of entering foster care or is in foster care. (Cal. Rules of Court, rule 5.480; R.R., supra, 180 Cal.App.4th at p. 194.) “Thus, California law, unlike ICWA, imposes a duty of inquiry in juvenile proceedings arising out of an act which would be deemed a crime if committed by an adult, where the child is at risk of being placed in foster care or is in foster care.” (R.R., supra, 180 Cal.App.4th at p. 199; § 224 et seq.) Appellant fails to meet the threshold requirement of being “at risk of entering foster care” to trigger the court’s state-mandated ICWA duties.
Addressing the definition of “foster care, ” the R.R. court explained, “[w]hile the federal definition of foster care placement is broad, encompassing ‘temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated, ’ ‘foster care’ for purposes of a section 601 or 602 proceeding is strictly limited by state statute. (25 U.S.C. § 1903(1)(i); § 727.4, subd. (d)(1).) Moreover, ‘at risk of entering foster care’ as used with reference to a section 601 or 602 proceeding, means ‘that conditions within a minor’s family may necessitate his or her entry into foster care unless those conditions are resolved.’ (§ 727.4, subd. (d)(2).)” (R.R., supra, 180 Cal.App.4th at pp. 202-203, fn. omitted.) “Foster care, ” is defined in section 727.4, subdivision (d)(1) as “residential care provided in any of the settings described in Section 11402.” No setting set forth in section 11402 describes a DJJ commitment.
“The definition of the phrase, ‘at risk of entering foster care’ found in section 727.4, subdivision (d)(2) is the appropriate definition of the phrase in section 224.3 because the same wording is used and because section 727.4 specifically deals with placements in delinquency cases.” (R.R., supra, 180 Cal.App.4th at p. 203.)
Section 11402 provides in pertinent part, “[¶] (a) The approved home of a relative... [¶] (b)(1) The licensed family home of a nonrelative. [¶] (2) The approved home of a nonrelative extended family member.... [¶] (c) A licensed group home.... [¶] (d) The home of a nonrelated legal guardian.... [¶] (e) An exclusive-use home. [¶] (f) A licensed transitional housing placement facility.... [¶] (g) An out-of-state group home.... [¶] (h) A licensed crisis nursery....”
The juvenile court in R.R. found the minor had been at risk of entering foster care, thus triggering ICWA application as implemented by California law. (R.R., supra, 180 Cal.App.4th at p. 203, fn. 6.) The court noted the probation officer had made a reasoned recommendation for foster care based on R.R.’s previous dependency history and the fact all his siblings were also in long-term placement. R.R.also refused to attend counseling sessions. (Ibid.) Here, the record makes no indication the trial court or the probation officer considered a foster care placement for appellant at any point in the proceedings.
Furthermore, DJJ commitment and foster care are specifically separated under the Welfare and Institutions Code. Section 202, subdivision (b) states in pertinent part, “ … 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.…” Subdivision (e) goes on to explain, “[a]s used in this chapter, ‘punishment’ means the imposition of sanctions. It does not include retribution and shall not include a court order to place a child in foster care as defined by Section 727.3. Permissible sanctions may include any of the following: [¶]…[¶] (5) Commitment... to the Division of Juvenile Facilities, Department of Corrections and Rehabilitation.” Thus, the Juvenile Court Law explicitly distinguishes foster care from DJJ commitment.
Because we find that appellant was not “at risk of entering foster care” for purposes of triggering inquiry and notice duties, we need not address the federal preemption issue appellant raises, and which is currently under review by our Supreme Court in In re W.B., Jr., review granted May 12, 2010, S181638.
III. Restitution Hearing Advisement.
Appellant also requests the dispositional order be revised to include an advisement as to his right to a hearing on the amount of restitution. While appellant has a right to a restitution hearing pursuant to section 730.6, subdivision (h)(4), the hearing is to dispute the determination of the amount of restitution. At the time of appellant’s disposition hearing, the victim had not yet submitted hospital statements supporting his estimate of medical bills exceeding $1,000. The court, at the disposition hearing, stated the probation department was to determine the amount of victim restitution. The record makes no indication the amount has since been determined.
A defendant’s due process rights are protected where he or she has a reasonable opportunity to challenge the accuracy or validity of the victims’ claimed losses. (In re Brittany L. (2002) 99 Cal.App.4th 1381, 1391, fn. 21.) The proper procedure is for the court to review all proffered evidence bearing on the claimed losses and appellant’s challenges before determining the amount which fully reimburses the victim for all economic loss incurred as a result of appellant’s criminal conduct. (Id. at p. 1391.) Since all evidence has not yet been submitted, appellant’s request is premature.
Even assuming the court erred in failing to notify appellant of his right to a restitution hearing, such error was harmless. “‘[A]n uninformed waiver based on the failure of the court to advise an accused of the consequences of an admission constitutes error which requires that the admission be set aside only if the error is prejudicial to the accused.’ [Citation.]” (People v. Walker (1991) 54 Cal.3d 1013, 1022-1023.) Furthermore, appellant knew the approximate amount of the restitution the victim claimed and defense counsel could have contested it at the disposition hearing, but failed to do so, thus waiving the error. (Id. at p. 1023 [“when the only error is a failure to advise of the consequences of the plea, the error is waived if not raised at or before sentencing”].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Kane, J., Detjen, J.