Ricky H., In re

• Decision Date: 09 November 1981
• Docket Number: S.F. 24273
• Citation: 30 Cal.3d 176,636 P.2d 13,178 Cal.Rptr. 324
• Court: California Supreme Court
• Parties: , 636 P.2d 13 In re RICKY H., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. RICKY H., Defendant and Appellant.

Page 324

178 Cal.Rptr. 324

30 Cal.3d 176, 636 P.2d 13

In re RICKY H., a Person Coming Under the Juvenile Court Law.

The PEOPLE, Plaintiff and Respondent, v. RICKY H., Defendant and Appellant.

S.F. 24273.

Supreme Court of California, In Bank.

Nov. 9, 1981.

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Richard E. Shapiro and Mark L. Christiansen, Deputy State Public Defenders, for defendant and appellant.

Wilbur F. Littlefield, Public Defender, Los Angeles, Kenneth I. Clayman and Jack T. Weedin, Deputy Public Defenders, as amici curiae on behalf of defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Robert D. Marshall and Paul V. Bishop, Deputy Attys. Gen., for plaintiff and respondent.

BIRD, Chief Justice.

Appellant Ricky H., a minor, appeals from an order of the superior court declaring him to be a ward of the juvenile court and committing him to the California Youth Authority. Appellant contends that the Youth Authority commitment was an abuse of discretion because the judge did not give adequate consideration to less restrictive alternatives such as placement in the local county youth center. He also challenges the superior court's denial of credit for actual time spent in juvenile hall prior to his commitment and for "conduct credits" of the kind provided for by statute (Pen.Code, § 4019) and by decisional law (People v. Sage (1980) 26 Cal.3d 498, 165 Cal.Rptr. 280, 551 P.2d 375) for adults incarcerated in county facilities. ¹

I.

The issues on appeal concern the orders made by the superior court at appellant's dispositional hearing on December 13, 1978. Two separate petitions were before the court alleging that appellant came within the provisions of Welfare and Institutions Code section 602. ² On November 8th, appellant admitted that the first petition was true with respect to four counts of burglary which involved two schools, a residence and a locked dairy truck. Five other counts of burglary and two counts of petty theft were dismissed in the interest of justice. Appellant's detention, which commenced with his arrest on November 2, was ordered continued, pending a dispositional hearing set for November 21, 1978.

However, on November 13, 1978, a new section 602 petition was filed, alleging that appellant had committed an assault by means of force likely to produce great bodily injury (Pen.Code, § 245, subd. (a)) and had escaped from the juvenile hall (§ 871). Yet a third petition was filed the following day, alleging that appellant had committed a trespass (Pen.Code, § 602) and had unlawfully driven or taken a vehicle (Veh.Code, § 10851). On November 27th, appellant admitted the second petition alleging assault and escape. As a result, the third petition was dismissed.

A social study of appellant was prepared by the probation officer and submitted to the court for the dispositional hearing. (See §§ 280, 702.) The social study indicated that appellant was 15 years old. His only prior contacts with the juvenile court had been three incidents: two petty thefts when appellant was 12 and a possession of alcohol that occurred shortly before petitioner's detention on the first petition. The juvenile court had never (1) imposed a wardship on appellant; (2) placed him on probation; or (3) attempted any out-of-home placement prior to its order committing him to the Youth Authority on the instant petitions. ³

Appellant's statement in the social study indicated that he was involved with "undesirable characters" after he had returned from the Midwest to resume living with his mother. Appellant also admitted that he had assaulted a juvenile hall counselor as part of an escape plan. The probation officer indicated that appellant was apprehensive and concerned about the impending dispositional hearing.

The family background report stated that appellant's parents had separated five years earlier, although at the time of the interview they were attempting a reconciliation. For the several previous years, appellant had travelled between Missouri and California, alternating between his grandparents', his father's and his mother's residences. The parents believed that this situation had detrimentally affected the minor's behavior. While in Missouri with his father for several months the previous winter, appellant had attended school regularly and had not engaged in any criminal activity. However, when he returned to his mother in the spring, he began failing in school. Appellant was held back, and attended only the first day of school in September 1978. Due to nonattendance, he was dropped from the school rolls in late October.

The social report recited that the probation officer had considered placement alternatives, but recommended a Youth Authority commitment. This recommendation was based on appellant's "level of criminal sophistication" implied by the number of burglaries admitted by the minor. The felonious assault upon the juvenile hall employee was also cited as a ground for Youth Authority commitment.

At the dispositional hearing on December 13, 1978, appellant's counsel opposed the Youth Authority commitment recommendation. He stressed the fact that no prior probation services or less restrictive placement for appellant had ever been attempted by the juvenile court. The district attorney argued that appellant's violent escape from the more secure juvenile hall would make placement at the relatively open county youth center inappropriate.

At the conclusion of the hearing, the superior court ordered appellant committed to the Youth Authority. The court set a maximum confinement time of three years on the most severe charge, the assault with force likely to produce great bodily injury, and ordered all other counts to run concurrently. In response to appellant's counsel's request for credit for precommitment time spent in juvenile hall from appellant's detention on November 2d, the court granted credit but only from December 11th.

II.

Appellant's first contention is that his commitment to the Youth Authority was an abuse of discretion in that the superior court did not give adequate consideration to less restrictive placement alternatives. Specifically, the social study lacked data regarding specific alternative placements. The court failed to respond to counsel's argument that the local youth center would be a more appropriate placement. Appellant asserts that the court had a duty to actively inquire as to the suitability of less restrictive placements, because statutory and decisional law placed limitations on the discretion of the juvenile court to commit minors to the Youth Authority.

Appellant is correct in his assertion that there are limitations to a superior court's discretion to commit juvenile offenders to the Youth Authority. Section 734 states, for example, that "(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." ⁴ This court held as a corollary to the mandate of section 734 that "(t) he unavailability of suitable alternatives, standing alone, does not justify the commitment of a nondelinquent or marginally delinquent child to an institution (the Youth Authority) primarily designed for the incarceration and discipline of serious offenders." (In re Aline D. (1975) 14 Cal.3d 557, 567, 121 Cal.Rptr. 816, 536 P.2d 65.)

This court in Aline D. observed that the statutory scheme guiding the superior court in its treatment of juvenile offenders " 'contemplates a progressively restrictive and punitive series of disposition orders in cases such as that now before us-namely, home placement under supervision, foster home placement, placement in a local treatment facility and, as a last resort, Youth Authority placement.' " (Id., at p. 564, 121 Cal.Rptr. 816, 536 P.2d 65; see also In re Bryan (1976) 16 Cal.3d 782, 788, 129 Cal.Rptr. 293, 548 P.2d 693; In re Arthur N. (1976) 16 Cal.3d 226, 237, 127 Cal.Rptr. 641, 545 P.2d 1345.) Nonetheless, there is no absolute rule that a Youth Authority commitment should never be ordered unless less restrictive placements have been attempted. (In re John H. (1978) 21 Cal.3d 18, 27, 145 Cal.Rptr. 357, 577 P.2d 177; In re Willy L. (1976) 56 Cal.App.3d 256, 265, 128 Cal.Rptr. 592.)

Appellant more specifically relies upon In re Michael R. (1977) 73 Cal.App.3d 327, 140 Cal.Rptr. 716, which held a Youth Authority commitment improper. There, the court held that "the juvenile court must consider each individual case on its merits without a mechanized approach based solely on the seriousness of the offense and must evaluate the appropriateness of the available lesser alternative dispositions in light of the purposes of the Juvenile Court Law. Before committing a minor to the C.Y.A., there should be some evidence in the record to support a finding that all these purposes cannot be accomplished by placement in a county facility." ⁵ (Id., at p. 349, 140 Cal.Rptr. 716.) Appellant asserts that the lack of inquiry or comment by the judge at the dispositional hearing establishes that no consideration of less restrictive alternatives was made by the superior court.

This 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. Moreover, the silence of the judge regarding his reasons for making a Youth Authority commitment has never been held to violate statutory or constitutional requirements. (In re John H., supra, 21 Cal.3d at pp. 22-27, 145 Cal.Rptr. 357, 577 P.2d 177.) It...