In re D.Y., A122223 (Cal. App. 7/15/2009)

• Decision Date: 15 July 2009
• Docket Number: A122223
• Court: California Court of Appeals Court of Appeals
• Parties: In re D.Y., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.Y., Defendant and Appellant.

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In re D.Y., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent, v. D.Y., Defendant and Appellant.

A122223

Court of Appeals of California, First Appellate District, Division One

July 15, 2009

Not to be Published in Official Reports

Appeal from the Napa County, Super. Ct. No. JV14731.

GRAHAM, J.^*

Following a contested dispositional hearing the juvenile court committed defendant to the Division of Juvenile Justice (DJJ)¹ for a maximum term of 16 years and 8 months. In this appeal defendant complains that the DJJ commitment is not supported by evidence of benefit to him, and the restitution order is unauthorized in part. We conclude that the dispositional order was not an abuse of the trial court's discretion, and the restitution order was proper. We therefore affirm the judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY²

On the afternoon of September 5, 2006, defendant, his "best friend" Robert, the victim, and another close friend Michael, sat in defendant's car in front of his apartment on Collier Boulevard in Napa, listening to music.³ Defendant was in the driver's seat; Robert occupied the front passenger seat; Michael sat in the back. Defendant was in possession of a 9 millimeter semi-automatic handgun he had purchased a few days before in Vallejo. He was displaying the loaded gun to his friends in the car when it "went off." Robert was hit by a single shot in the chest.

Defendant and Michael carried the victim upstairs to the apartment, and called defendant's mother to inform her that Robert had been shot. Defendant's mother then directed her son Ronald "to call 911." Defendant threw the gun used to shoot the victim and another firearm into a closet.

When police officers responded to the scene, Robert was found lying on his back just inside the front door of the apartment. He was subsequently pronounced dead by paramedics.

Police officers interviewed defendant at the scene of the shooting; he was "very emotional" and crying. Defendant stated that Robert was shot by an "unknown suspect" who approached the car in which they were sitting and shot a gun through the driver's side window. Defendant said that he did not own a gun. Defendant was interviewed further at the police station, where he continued to adamantly deny that he shot the victim by "accident," as suggested by the officers. He stated to the officers that he did not immediately call for emergency assistance for the victim, but rather attempted to stop the bleeding with a wet cloth.

After one of the officers again challenged defendant's version of the shooting, defendant admitted that he "did it," but not "on purpose." Defendant explained that he purchased the gun and two magazines — one empty and one partially loaded — four days before on the streets in Vallejo for protection from local Surenos who had been giving him and his friends "problems." On the day of the shooting, defendant said he retrieved the gun from his room and brought it to the car to show the victim. He did not realize the magazine in the gun was loaded. Defendant and the victim then "passed the gun back and forth." As defendant was "playing with the trigger," he "pulled it by accident," and a shot was fired that struck Robert in the chest. After the shooting occurred, defendant threw the gun and the clip in the living room closet of his apartment. Defendant also admitted that he had another gun which usually he kept in his bedroom.

A search of defendant's apartment resulted in discovery of a 9 millimeter Taurus semi-automatic handgun and a black revolver in the living room closet, a black handgun ammunition magazine on a mattress in defendant's bedroom, numerous Ecstasy pills and U.S. currency in a Ziploc bag on the same mattress, and more Ecstasy pills in an Altoids canister on a closet shelf. Defendant initially admitted that he possessed the Ecstasy pills, but later claimed that the drugs "belonged to Michael." A witness told the police, however, that defendant possessed and sold Ecstasy at his apartment and elsewhere.

The petition (Welf. & Inst. Code, § 602) was filed on August 17, 2007. On November 2, 2007, defendant admitted that he committed the charged offenses of involuntary manslaughter (Pen. Code, § 192, subd. (b)), possession for sale of a controlled substance (Health & Saf. Code, § 11378), and misdemeanor battery on school grounds (Pen. Code, § 243.2, subd. (a), along with enhancements for being personally armed with a firearm and personal use of a firearm (Pen. Code, §§ 12022, subd. (c), 12022.5, subd. (a)) in commission of the involuntary manslaughter offense.⁴

At an uncontested dispositional hearing on December 7, 2007, the juvenile court considered the reports and the evaluations submitted by two defense psychiatrists in support of the request for camp placement rather than DJJ commitment. Both psychiatrists stated in their evaluations that defendant suffers from posttraumatic stress disorder and depressive symptoms (Dysthymic Disorder), and would be better treated in a local camp facility rather than DJJ. The report noted that defendant performed successfully during his stay of over one year in the structured setting of juvenile hall by graduating from high school and completing an anger management class. Following the hearing the court placed defendant on probation, granted him credit for 459 days of time served in juvenile hall, and ordered him committed to the Bar-O-Boy's Ranch camp program until age 19. He was also ordered to pay a restitution fine and restitution to the victims.

On March 21, 2008, respondent filed a notice of probation violation based upon possession of methadone in the Bar-O-Boy's Ranch following a visit from his mother.⁵ The result of a urine test on March 11, 2008,⁶ indicated that defendant tested positive for use of methadone. When first confronted with the accusation that he possessed the methadone, defendant implicated "another minor" at the camp. Defendant later acknowledged that he obtained eight methadone pills from his mother's purse without her knowledge during an overnight visit. He took half a pill himself, and dispersed other pills to four minors in the camp. The Bar-O-Boy's Ranch terminated defendant's placement in the camp, and he was transported to juvenile hall.

A contested dispositional hearing on the probation violation allegation was held on July 21, 2008. The dispositional report recommended placement of defendant at DJJ. The report stated that defendant failed to take advantage of the opportunity and services in the "full term camp program" offered at the less restrictive setting of Bar-O-Boy's Ranch, and therefore an "escalation of supervision and placement is warranted." The need for a "lengthy program" to assist defendant in dealing with issues of "depression and possible PTSD" was noted. According to the report, counseling services to address defendant's mental health issues, along with substance abuse counseling, anger management, victim awareness and vocational courses, would be available to defendant as part of a DJJ commitment.

At the dispositional hearing defense counsel argued in favor of continued placement of defendant in a residential program, and pointed out that a single facility, Amicus House in Santa Clara, considered him eligible for services that included treatment for PTSD. The probation officer asserted that funding for defendant's placement at a residential placement facility by the department was problematic due to the fact that defendant was over 18 years old, although defendant's mother indicated that she would pay for any "additional counseling" for defendant.⁷ Respondent also asserted that Amicus House is a "12-step drug and alcohol program," not a facility that provides the "psychological services" defendant needed, and is "not a locked facility." Defense counsel countered by advising the court that Amicus House has "licensed family therapist" available "once a week" who has "training on PTSD."

The juvenile court offered the opinion that any PTSD which afflicted defendant was not "in any way related" to his act of violating his probation by bringing methadone into the Bar-O-Boy's Ranch facility. Rather, the court stated, defendant acted in "blatant disregard" of the court's orders and the opportunity granted to him in a less restrictive placement. The court found that defendant needed "to participate in a lengthy commitment at DJJ," a secure, disciplined environment, and take advantage of the counseling services available to address his mental health issues. A finding of probable benefit to defendant from the "reformatory, education, discipline and other treatment provided by" the DJJ was also made by the court. Defendant was committed to the DJJ for a term not to extend beyond his 25th birthday, with credit for time served.

DISCUSSION

I. The Commitment to DJJ.

The primary contention presented by defendant in this appeal is that his commitment to the DJJ was error. Defendant points out that he had "no history of prior adjudications," and never received "the counseling and medical treatment he required" in his prior placement. He asserts that the court "ignored the unanimous opinions of the mental health professionals," who recommended that he receive treatment for PTSD and symptoms of depression in a local facility. Defendant also argues that "no evidence" was presented to support the court's finding "of probable benefit" to him from programs available at the DJJ. He therefore claims that the disposition order is an abuse of discretion and must be reversed.

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...