Filed 5/6/14 In re George A. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

In re GEORGE A., a Person Coming Under the 

Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

GEORGE A.,

Defendant and Appellant.

F066908

(Super. Ct. No. 08CEJ600789)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Fresno County. James A. Kelley, 

Judge.

Jeff Cunan, under appointment by the Court of Appeal, for Plaintiff and 

Respondent.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. 

Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

 

* Before Cornell, Acting P.J., Gomes, J. and Detjen, J.
2.

George A., a minor at the time of the underlying proceedings, appeals from a 

dispositional order of the Fresno County Juvenile Court committing him to the California 

Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ).1 He 

contends the court abused its discretion by failing to order a less restrictive alternative 

placement. The claim is unfounded. George’s commitment to the DJJ followed multiple 

sustained juvenile petitions and probation violations, and his unsuccessful participation in 

other rehabilitative programs. The record clearly shows that the juvenile court weighed 

and considered the probable benefits of a DJJ commitment against the ineffectiveness of 

less restrictive placements. Finding no abuse of discretion, we affirm the challenged 

order.

FACTUAL AND PROCEDURAL BACKGROUND

George’s history of delinquency dates back to September 2003 when, at eight 

years of age, he was cited by police for a violation of Penal Code section 459 based on 

his admitted participation in a burglary. In 2008, at the age of 13, George admitted to 

misdemeanor possession of a weapon in violation of former Penal Code section 12020, 

subdivision (a) after threatening his teacher with some type of bat or club. He was 

subsequently placed in a “Level 12” group home. 

In 2010, George was arrested for brandishing a knife while threatening school 

officials. He was booked into juvenile hall and later adjudged a ward of the court 

pursuant to Welfare and Institutions Code section 602. The wardship petition was 

 

1 As of July 1, 2005, the correctional agency formerly known as the Department of 

the Youth Authority (or California Youth Authority) became known as the Department of 

Corrections and Rehabilitation, Division of Juvenile Facilities (DJF). The DJF is part of 

the DJJ. (Gov. Code, §§ 12838, subd. (a), 12838.5; Pen. Code, § 6001; Welf. & Inst. 

Code, § 1710, subd. (a).) Statutes that formerly referred to the Department of the Youth 

Authority now refer to the DJF. However, the parties to this appeal, the juvenile court, 

case law, and certain of the California Rules of Court, refer to the DJF as the DJJ. (See, 

e.g., In re D.J. (2010) 185 Cal.App.4th 278, 280, fn. 1; Cal. Rules of Court, rule 5.805.) 

We likewise refer to the DJF as the DJJ. 
3.

sustained based on an admitted misdemeanor violation of Penal Code section 417, 

subdivision (a)(1). George was given credit for 52 days in custody against a maximum 

six-month period of confinement, placed on probation, and ordered to complete 50 hours 

of community service. 

George did not comply with the terms and conditions of his probation for the 2010 

adjudication. He failed to maintain contact with his probation officer, failed to remain in 

the home of his guardian, failed to attend school, failed to complete his community 

service, and tested positive for the use of marijuana and methamphetamine. The juvenile 

court found him to be in violation of probation under Welfare and Institutions Code 

section 777 in October 2011 and again in January 2012. 

In March 2012, George used a fake pistol to commit robbery against a 15-year-old 

victim from whom he stole a cell phone. Following a contested jurisdictional hearing, he 

was found to have violated Penal Code section 211, a felony. On June 4, 2012, the 

juvenile court placed George under the supervision of the probation department until 

December 2013 and ordered him committed to the New Horizons program at the Fresno 

County Juvenile Justice Campus for a period not to exceed 365 days. He received credit 

at that point for 233 days in custody against a maximum confinement period of five years 

and two months for the robbery. 

George’s behavioral problems persisted throughout his commitment at New 

Horizons. He was written up for disciplinary infractions during every month from June 

2012 through November 2012, often getting in trouble for altercations with peers and 

insubordination towards staff members. In mid-December, following a four-week period 

of satisfactory conduct, George became eligible for the privilege of an eight-hour 

furlough release from the facility. Two such releases occurred without apparent incident 

on December 16 and 23, 2012. However, the results of a drug test administered after the 

second furlough release came back positive for methamphetamine. There was evidently 

a delay in the reporting of those results, as George was allowed another furlough release 
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on Christmas day. He did not return at the appropriate time and went missing until 

January 4, 2013, when he was arrested on a bench warrant. 

The misconduct at New Horizons served as the basis for a probation violation 

petition filed on January 7, 2013. George admitted the allegations in the petition. His 

defense attorney later filed a “Statement in Mitigation” with the juvenile court asking that 

it refrain from committing George to the DJJ and instead consider placing him in a 

program called Turning Point or a similar “dual diagnosis” residential facility which 

could offer him treatment for substance abuse and psychiatric problems. In support of 

the request, counsel attached a letter authored by Harold L. Seymour, Ph.D., who opined 

that George has bipolar disorder as well as substance abuse issues, and thus would benefit 

more from a dual diagnosis program than a DJJ commitment. 

The probation officer recommended George be committed to the DJJ for the 

following reasons: “The Court and Probation Department have made extensive efforts to 

rehabilitate the minor such as: short term commitments at JJC, SB 163 Wraparound 

services, Probation supervision, and the New Horizons Program. This officer feels all of 

the local less restrictive options available to assist the minor are inappropriate in this 

matter. The minor has been afforded the highest level of rehabilitative services that this 

County has to offer and he has failed to reform.” It was further noted that George would 

receive an extensive evaluation at DJJ and have access to more services than were 

available locally, including drug treatment programs. 

On March 20, 2013 the juvenile court ordered George committed to the DJJ. 

Pursuant to Welfare and Institutions Code section 731, subdivision (b), the court 

determined the maximum period of confinement to be three years and six months, with 

credit for 514 days in custody. This timely appeal of the commitment order followed. 

DISCUSSION

George claims the juvenile court erred by ordering his commitment to the DJJ in 

the absence of substantial evidence to support such a disposition. More specifically, he 
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argues there is insufficient evidence to support a finding that less restrictive alternatives 

such as a residential drug treatment program would have been ineffective or 

inappropriate. We see the record differently.

Appellant’s arguments are made in reference to a well-established list of factors 

applicable to juvenile disposition proceedings. In making a placement determination, 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.” (Welf. & Inst. Code, § 725.5.) 

“Additionally, ‘there must be evidence in the record demonstrating both a probable 

benefit to the minor by a [DJJ] commitment and the inappropriateness or ineffectiveness 

of less restrictive alternatives.’” (In re Jonathan T. (2008) 166 Cal.App.4th 474, 485.)

“The appellate court reviews a commitment decision for abuse of discretion, 

indulging all reasonable inferences to support the juvenile court’s decision.” (In re 

Angela M. (2003) 111 Cal.App.4th 1392, 1396.) Although a DJJ commitment is 

normally a placement of last resort, the juvenile court is not required to first exhaust all 

less restrictive alternatives. (In re Asean D. (1993) 14 Cal.App.4th 467, 473; In re 

Tyrone O. (1989) 209 Cal.App.3d 145, 151.) “A DJJ commitment is not an abuse of 

discretion where the evidence demonstrates a probable benefit to the minor from the 

commitment and less restrictive alternatives would be ineffective or inappropriate.” (In 

re M.S. (2009) 174 Cal.App.4th 1241, 1250.) 

George purports to rely on In re Teofilio A. (1989) 210 Cal.App.3d 571 

(Teofilio A.), which is an often-cited case that bears little resemblance to the present 

matter in terms of factual and procedural circumstances. There, the minor “had no 

criminal record; his conduct was not aggressive or assaultive; he was not armed; he 

threatened no one, and did not resist his arrest; his offense was a single $60 sale of 

cocaine.” (Teofilio A., supra, 210 Cal.App.3d at p. 578.) The juvenile court in 

Teofilio A. relied exclusively upon the contents of the probation officer’s report. 
6.

However, the report failed to show that the probation officer considered less restrictive 

alternatives and did not address why such alternatives would be ineffective or 

inappropriate. In light of those facts, the appellate court found the record to be “barren 

on this crucial issue.” (Id. at p. 577.)

Here, George was nearly 18 years old at the time of the March 2013 disposition 

hearing and his recidivism was well documented. The juvenile court specifically noted 

“a ten-year history of committing offenses that started in 2003.” He had repeatedly 

flouted the terms and conditions of his probation for the 2010 adjudication and was still 

on probation when he offended again in 2012. Placement at New Horizons was a less 

restrictive alternative commitment for the underlying offense of robbery, yet the minor 

demonstrated a continual inability or unwillingness to abide by the rules of the program. 

As in the briefing on appeal, George’s attorney below emphasized his “noble 

effort” to improve his behavior to the point where he was able to earn furlough releases 

from New Horizons. The juvenile court pointed out the limitations of this argument: “It 

shows that he thrives in custody, and then once he gets out of custody, he fails. So ... 

maybe the custodial setting and the structure is what he needs for now until he figures 

things out. There was some argument by counsel for the minor that his New Horizons 

time was [successful], but I think the fact that he’s here and the fact that he’s using 

[methamphetamine] again shows there was less than 100 percent success.” 

The court went on to acknowledge the position set forth in counsel’s Statement in 

Mitigation and the recommendations of the psychologist, Dr. Seymour, but ultimately 

concluded the arguments of the People and the probation officer were more persuasive. 

The specific findings made at the time of the disposition were as follows: “The Court 

and the probation officer have considered all local, less restrictive programs and forms of 

custody and [the Court] is fully satisfied that they are inappropriate dispositions at this 

time and that the minor can benefit from the various programs provided by CDCR DJJ. 

The mental and physical conditions of the minor are such as to render it probable that the 
7.

minor will benefit by the reformatory and educational discipline or other treatment 

provided by the CDCR DJJ.” 

Pursuant to our foregoing discussion and recitation of the underlying factual and 

procedural background, we conclude the findings of the juvenile court are supported by 

substantial evidence in the record. 

DISPOSITION

The judgment is affirmed.