Michael R., In re

• Decision Date: 26 August 1977
• Docket Number: Cr. 30257
• Citation: Michael R., In re, 140 Cal.Rptr. 716, 73 Cal.App.3d 327 (Cal. App. 1977)
• Court: California Court of Appeals
• Parties: In re MICHAEL R., a person coming under the juvenile court law. Kenneth F. FARE, as Acting Chief Probation Officer, etc., Plaintiff and Respondent, v. MICHAEL R., Defendant and Appellant.

Page 716

140 Cal.Rptr. 716

73 Cal.App.3d 327

In re MICHAEL R., a person coming under the juvenile court lawKenneth F. FARE, as Acting Chief Probation Officer, etc., Plaintiff and Respondent, v.MICHAEL R., Defendant and Appellant.

Cr. 30257.

Court of Appeal, Second District, Division 3, California.

Aug. 26, 1977.

As Modified Sept. 23, 1977.

Paul Halvonik, State Public Defender, Charles M. Sevilla, Chief Asst. State Public Defender, and Janice L. Feinstein, Deputy State Public Defender, under appointment by the Court of Appeal, for appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Shunji Asari and Abram Weisbrot, Deputy Attys.Gen., for petitioner and respondent.

POTTER, Associate Justice.

Michael R., a 15-year-old minor, appeals from the order of the juvenile court adjudicating him a ward of the court under Welfare and Institutions Code section 602¹ and committing him to the California Youth Authority.On December 6, 1976, a juvenile court petition was filed alleging that minor came within the provisions of section 602 by violation of Penal Code section 246.²On December 20, the petition was sustained following an adjudication hearing before Referee Victor Reichman.On January 14, 1977, the disposition hearing was held before a different referee, Jerry Moore.

The probation report prepared for the disposition hearing recommended placement in a 'CAMP FACILITY' under the 'CAMP-COMMUNITY PLACEMENT' program.There was no previous history of juvenile court appearance or even informal probation.The report, however, indicated several negative factors in this first offender's background including lack of a 'STABLE HOME ENVIRONMENT,' poor school attendance and grades, negative peer relationships, and a possibility of a resumption of hostilities.³In her 'ANALYSIS AND PLAN,' the officer then explained her reasons for her recommendation as follows: 'THE LACK OF CONTROL IN THE FAMILY HOME, LOW EDUCATIONAL ACHIEVEMENT, THE MINOR'S INABILITY TO DISCUSS THE SITUATION AND THE SERIOUSNESS OF THE INCIDENT INDICATES (sic) A NEED FOR ON-GOING COUNSELING IN A DETAINED SITUATION.PLACEMENT IN THE CAMP FACILITY WILL OFFER THE MINOR AN OPPORTUNITY TO DEMONSTRATE A LEARNED CONTROL OF IMPULSES FOR HIMSELF AND TO EXERCISE PROPER JUDGMENT IN COMMUNITY SITUATIONS.( ) DUE TO THE VIOLENT NATURE OF THE OFFENSE IT IS FELT THAT THE MINOR WOULD BE DIFFICULT TO PLACE IN A COMMUNITY SETTING AND THEREFORE PLACEMENT IS NOT WARRANTED AT THIS TIME.( ) HOME ON PROBATION DOES NOT SEEM WARRANTED AT THE TIME DUE TO HIS MOTHER'S EMPLOYMENT AND HIS FATHER'S PHYSICAL DISABILITIES.'.

At the outset of the hearing, Referee Moore stated that he had read the probation report but that since he personally had not 'heard the evidence,'he'would like to hear what the evidence showed with respect to who fired the shots.'The prosecutor pointed out that on December 1, 1976, minor and three companions drove past the occupied home of some other youths three or four times, shots were fired from the car on 'two of the occasions' and 'it appeared' minor 'fired the shots.'

The referee then asked for argument by counsel, indicating that he was 'not particularly decided at this point as to which disposition is indicated.'He stated that he viewed the violation 'as a very serious offense,' but that 'all possibilities appear to (be) open.'

The three potential dispositions argued by opposing counsel were the same considered by the probation report: home on probation, community placement, or camp placement.The public defender argued that 'either a placement situation or home on probation (in the father's custody) with strict conditions and involvement in some kind of program would be better for Michael than the camp program.'In response, the district attorney, referring to the probation report and recommendations, argued in favor of the report's recommendation, pointing out the inadvisability of returning minor to the community at this time and 'the disadvantages to returning the Minor to his home.'The district attorney claimed 'the proper recommendation should be in some type closed setting which emphasizes the responsibility of the Minor to himself and the persons around him.'

The court then stated: 'I am very concerned about the extreme wantonness of the conduct . . . firing at a dwelling house with people present.It is only luck that there isn't someone dead and this is a murder charge.I realize he didn't have an extensive record of convictions, but it appears his conduct has deteriorated in recent months and years.( ) In fact, I should state for the record I have read and considered the probation report as received in evidence.The report card dated November 19, 1976, indicates all grades of fail and unsatisfactory work habits and citizenship.The comments indicate the Minor has serious problems with truancy and is involved with students who consistently defy authority.( ) The thing that concerns me is that he is able to shoot at people and that in and of itself shows a pretty disturbed individual to me that I think means long term incarceration.'

The minor's father and the probation officer then testified.The father indicated that he thought if he had custody, he could control the minor at home.In response the probation officer stated that the minor was excessively truant despite the father's taking the minor to school, and reiterated her recommendation that minor's 'conduct in the community warrants removal from the community.'

The referee then said: 'For the reasons stated, I find that the mental and physical condition and qualifications of the ward are such as to render it probable he will be benefited by the reformatory educational discipline or other treatment provided by the Youth Authority.( ) I find the welfare of the minor requires custody be taken from the parents and guardians.He is committed to the California Youth Authority.'

On January 17, this appeal was filed.

Contentions

Minor contends that the commitment to the California Youth Authority was an abuse of discretion.We agree for the reasons that follow.Since we must reverse the order and remand for a new disposition hearing, we need not reach minor's two other contentions that the referee failed (1) to adequately specify the findings under Welfare and Institutions Code section 726, and (2) to advise minor of his right to a rehearing by a judge.⁴

The Commitment to the California Youth Authority Was Improper

Minor contends that his commitment to the California Youth Authority was an abuse of discretion because he'had never been exposed to (any) local treatment programs,' and the commitment was improperly based on 'retribution rather than rehabilitation.'

The rule governing our review of the propriety of the California Youth Authority commitment was stated in In re Clarence B., 37 Cal.App.3d 676, 682, 112 Cal.Rptr. 474.

'It is well settled in California that when a public offense has been committed by a juvenile, certification of the juvenile to the CYA is within the sound discretion of the committing court, be it the juvenile court(Welf. & Inst.Code, §§ 731,1736) or the superior court(Welf. & Inst.Code, § 1731.5).(SeeIn re Dale S., 10 Cal.App.3d 952, 957, 89 Cal.Rptr. 499;People v. Moran, 1 Cal.3d 755, 762, 83 Cal.Rptr. 411, 463 P.2d 763;People v. Woolbert, 232 Cal.App.2d 544, 547, 42 Cal.Rptr. 919.)The decision of the juvenile or superior court may be reversed on appeal only upon a showing that the court abused its discretion in committing the minor to the CYA.(SeeIn re Dale S., supra, 10 Cal.App.3d at p. 957, 89 Cal.Rptr. 499;People v. Hutson, 221 Cal.App.2d 751, 754, 34 Cal.Rptr. 790.)A reviewing court must indulge in all reasonable inferences to support the findings of the juvenile court, and such findings will not be disturbed on appeal when there is substantial evidence to support them.(In re Schubert, 153 Cal.App.2d 138, 143, 313 P.2d 968.)'

(See alsoIn re Willy L., 56 Cal.App.3d 256, 265, 128 Cal.Rptr. 592, 597.)

In order to determine whether there was substantial evidence to support this commitment, we must examine the evidence presented at the disposition hearing in light of the purposes of the Juvenile Court Law.

The general statutory purposes of the law are stated in section 502 of the Welfare and Institutions Code.That section provides:

'(a) The purpose of this chapter is to secure for each minor under the jurisdiction of the juvenile court such care and guidance, preferably in his own home, as will serve the spiritual, emotional, mental, and physical welfare of the minor and the best interests of the state; to protect the public from criminal conduct by minors; to impose on the minor a sense of responsibility for his own acts; to preserve and strengthen the minor's family ties whenever possible, removing him from the custody of his parents only when necessary for his welfare or for the safety and protection of the public; and, when the minor is removed from his own family, to secure for him custody, care, and discipline as nearly as possible equivalent to that which should have been given by his parents.This chapter shall be liberally construed to carry out these purposes.

'(b) The purpose of this chapter also includes the protection of the public from the consequences of criminal activity, and to such purpose probation officers, peace officers, prosecuting attorneys, and juvenile courts shall take into account such protection of the public in their determinations under this chapter.'

The rehabilitative purpose of the Juvenile Court Law was expressed in In re Aline D., 14 Cal.3d 557, 121 Cal.Rptr. 816, 536 P.2d 65.In Aline D., our Supreme Court stated: 'Juvenile commitment proceedings are designed for the purpose of rehabilitation and treatment, not punishment.'(Id. at p. 567, 121 Cal.Rptr. at p. 822, 536 P.2d at p. 70.)The court noted that...