1 Filed 8/26/14 In re Ryan P. CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

In re Ryan P., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent,

v. Ryan P., Defendant and Appellant. A140120
(Alameda County Super. Ct. No. SJ09012267)

In sustaining his fourth delinquency petition since the ag e of 12, the juvenile court found that 16-year-old Ryan P. fired several gunshots at a family friend. Following a contested disposition hearing, the court committed him to the Department of Corrections and Rehabilitation, Divi sion of Juvenile Facilities (DJF; formerly Division of Juvenile Justice). Ryan appeals, arguing the court abused its discretion in finding he would probably benefit from the commitment and that less rest rictive alternative placements were inappropriate. We affirm.
I. B ACKGROUND A. First Petition In October 2008, Ryan (then age 12) ch ased, restrained, and then “assaulted a female peer [middle school] classmate . . . by grabbing her, licking the side of her neck, biting her on her left breast a nd squeezing her buttocks,” leav ing a visible bite mark on the victim’s breast. The incident was Ry an’s 17th school disciplinary referral since2 May 2008, and many had been sexual in na ture, such as pulling down a girl’s pants during gym class. The Contra Costa County District Atto rney filed a wardship petition (Welf. & Inst. Code, § 602) 1 charging Ryan with sexual battery (Pen. Code, § 243.4, subd. (a)). Ryan admitted si mple misdemeanor battery (Pen. Code, §§ 242, 243, subd. (a)), and the sexual batte ry charge was dismissed. The juvenile court declared Ryan a ward and released him to his mother’s home. A licensed psychologist assessed Ryan and concluded he was not a high recidi vism risk, was not a sexual predator, and did not pose a significant harm to the community. The matter was transferred to Alameda County, where Ryan had moved with his moth er. In January 2010 , Ryan was diagnosed with attention deficit hyperactivity disorder, oppositional defiant disorder, and anxiety. On July 6, 2010, a notice of probation vi olation (§ 777) alle ged that Ryan had failed to appear in court. An arrest warrant had issued, and Ryan was taken into custody after he was caught shoplifting. Ryan admitte d the probation viola tion and was released
to his mother’s home with stricter conditions.
B. Second Petition In May 2011, Ryan (then ag e 14) robbed a teen ager on the street after threatening to shoot him. Ryan became co mbative when officers attempted to search and arrest him. The Alameda County District Attorney filed a petition ch arging Ryan with robbery, possession of stolen property, and resisti ng arrest (Pen. Code, §§ 211, 496, 148, subd. (a)). Ryan admitted felo ny theft (Pen. Code, § 487, subd. (c)), and the original charges were dismissed. In a probation evaluation, Ryan reporte d that he had been beaten and sexually abused by a stepgrandmother from the age of nine. A psychodiagnostic evaluation of Ryan stated, “There is little doubt that Ryan has experienced a long history of psychological and physical trauma,” and his “d elinquent behaviors are attributable to his mental disturbance,” cognitive deficits, a nd emotional deprivation in his family relationships. Ryan minimized his use of ma rijuana and alcohol, but admitted associating

1 Undesignated statutory references are to the Welfare and Institutions Code.3 with gang members. At disp osition in June 2011, the cour t ordered Ryan placed at a group home in San Jose. In October 2011, Ryan ab sconded from the group home and was arrested a week later. A notice of probation violation issued and Ryan admitted the offense. Ryan was accepted into a collaborative court program and referred to the family preservation unit. In February 2012, Ryan was released from juvenile hall to his mother’s care on GPS monitoring, and the mo nitoring condition was lifted two weeks later.
C. Third Petition In early March 2012, Ryan (then ag e 15) committed an armed carjacking and robbery with a companion, th en fled by car, driving the wrong way on a highway, and then on foot. The Alameda County District Attorney filed a petition charging Ryan with robbery (Pen. Code, § 211), and evading a po lice officer by driving on the wrong side of the highway (Veh. Code, § 2800. 4). As to the robbery coun t, it was alleged that Ryan personally used a deadly or dangerous weap on (a replica BB gun) (Pen. Code, § 12022, subd. (b)). After a contested jurisdictional he aring, the juvenile court found both counts and the enhancement allegation true. The di sposition report noted that Ryan had a gang tattoo and admitted prior gang membership. The court terminated family preservation services, and after an extend ed placement process, placed Ryan at a group home in Stockton (Teen Triumph), a “highly struct ure[d] living environment that emphasizes
behavior modification” where he would participate in ther apy and attend school. The court also approved administration of ps ychotropic medication for impulsivity and depression, an order that was renewed and ex panded the following y ear. The jurisdiction and disposition orders were affirmed on appeal. ( In re Ryan P. (Aug. 27, 2013, A135485) [nonp ub. opn.].) In December 2012, Ryan absconded from Teen Triumph. A notice of probation
violation was filed and a warrant issued for his arrest.
D. Current Petition On January 15, 2013, Ryan fired several shots at R. W., a family friend he had known for years. R.W. had walked past Ry an and he started shoo ting in her direction4 when she reached the por ch of a friend’s house; she was able to enter the house unhurt. R.W. was unsure of Ryan’s motive, but tho ught he might have been upset because she had refused to give him money a few days ea rlier, or he might have had a dispute with
her friend’s brother. 2 The Alameda County District A ttorney filed a petition charging Ryan assault with a firearm and alleging he personally used the firearm (Pen. Code, §§ 245, subd. (a)(2), 12022.5, s ubd. (a)). Following a contested jurisdictional hearing, the juvenile court found the charge and allegation true.
E. Disposition of Current Petition Ryan asked the court to send him to a “s trict out-of-state wilderness type program”
rather than DJF. Defense counsel confessed error in advocating for Ryan to be sent to Teen Triumph rather than a more rigorous pr ogram at the prior disposition hearing. “I now realize . . . Ryan needed a program like ROP [(Rite of Passage)]. . . . [B]ecause Teen Triumph was relatively gentle in the delivery of its program, Ryan never actually made any genuine commitment to thei r program and eventually found it too easy to AWOL and return to his corrupt life in Oakland.” Defense counsel also argued that a DJF commitment would be dangerous for Ryan
because he had been labeled a “snitch”: “While on the run, Ryan became a witness to a shooting and killing . . . . As a witness and not a suspect, he helped to identify several now charged suspects. As a resu lt the word has gotten around th at he’s a ‘snitch.’ I have personally confirmed that during Ryan’s current stay in Juve nile Hall, he has been the
victim of threats and an assault as sociated with being labeled a snitch. [3] According to [Ryan’s] mother, she has recei ved a message from [DJF] inma tes that they are waiting for

2 Ryan did not testify at the jurisdiction hearing, but after the petition was sustained he provided the following informa tion about the incident during the disposition proceedings. He claimed R.W. and others had viciously attacked him—and R.W. had personally pistol whipped him— earlier on the day of the sh ooting because R.W. believed he had stolen something from her. Other peop le then egged Ryan on to retaliate against her. When he shot at R.W., he inte nded to injure her, but not to kill her.

3 In May 2013, the court ordered Ryan tran sferred to a juvenile facility in another county.5 Ryan. Given his problem criminal associatio ns locally and the ‘snitch’ label [he] now has, it seems a [DJF] commitment could be pr oblematic and dangerous. My discussions with an intake counselor at ROP[] gives me the impression they are better equipped to handle disputes between so called ‘enemies ’ and often have grea t success reducing the
tensions between feudi ng gangs and residents.”
The court was also asked to consider two research papers describing serious problems at DJF and the 2013 report of a sp ecial master in litigation on DJF conditions. Defense counsel argued DJF wa s not appropriate for Ryan because it housed the worst of the worst, and that DJF could not offer Ryan the mental health and other services he
needed. The probation department recommended “a remote placement” and a “high level residential placement” rather than a DJF co mmitment. “[Ryan] ha s been involved in several serious incidents[,] however, does appear to be remorseful and could be successful in a placement program. Ryan has few positive influences in his life and little family support. It is believed that [he] has turned to the ‘streets’ and negative peers for support and due to his immature and childlike nature is easily persuaded negatively. . . . Ryan has requested he be placed in Pennsylvania as he is afraid for his safety. He claims his life is being threatened by a juvenile who is being detained in Juvenile Hall.” By the time of the disposition hearing, ROP and two other programs had rejected Ryan. ROP wrote: “The treatment team has a number of concerns with Ryan’s safety. First, the MOB gang put a h it out on his life for testifying as a witness in a [BART] shooting. Second, the MOB gang shot up Ryan’s mother’s home. Thir d, Ryan said that he knows MOB gang members who are currently at ROP . . . and he would have problems with them.” Clari nda Academy rejected him “due to his sexual abuse issue and not completing any sex offender treatment. ” George Junior Republic rejected him because of his history of aggressive, assau ltive and criminal beha vior, which required a
more restrictive environment. Ryan had, however, been accepted at Woodward Academy in Iowa (Woodward) and defense counsel urged the court to place hi m there. “This progra m is ideal for Ryan6 because it offers him sex offe nder counseling, could addre ss his mental and educational needs, has a more diverse minor population, and its remoteness and lack of a Bay Area population practically eliminates all safety concerns . . . .” An acceptance letter from
Woodward states: “We feel our sex offender specific pr ogramming would be the most appropriate programming for him to openly deal with his past abuse as a victim and a perpetrator. He will also be able to address his past beha viors, relationship issues, and choices that have resulted in him being de tained both in the past and presently.” At the disposition hearing, Ryan pres ented testimony by staff members from the locked juvenile hall units for high-risk offe nders where he had been housed in Contra
Costa and Alameda Counties. Ryan had no major behavior pr oblems while in custody, and he participated in mental health and educational prog rams. However, the witnesses were not aware of Ryan’s full criminal record , gang affiliation, or hi story of absconding from unsecured placements. Th ree acknowledged that juve niles who do well in the controlled environment of a locked facility mi ght nevertheless be vi olent on the streets.
The defense also called Jennifer Zaballo s, the probation officer who had written Ryan’s disposition report, and w ho had supervised Ryan when he was at Teen Triumph.
She recommended Woodward because it was out of state and it offered a sex offender program and mental health services. Howeve r, Zaballos appeared to be unfamiliar with Ryan’s full criminal history and prior performance on probation, and she was not personally familiar with Woodward. The deputy district attorney urged the court to commit Ryan to DJF in order to hold him accountable, to protect the public, a nd to rehabilitate him. She argued Ryan’s long history of serious and increasingly vi olent offenses, as well as his history of absconding from less restrictive placements, called for a DJF commitment, and noted that Ryan had squandered an opport unity at his last disposition when the court responded to his plea not to be committed to DJF. The juvenile court committed appellant to DJF with the following remarks: “Woodward . . . is like trying to put a square peg in a round hole. The only reason they would take Ryan for an extended program, which I believe he needs, is that he has a . . .7 possible sex offense treatment issue, which r eally goes back many, many years, and, you know, I see Ryan not as a sex offender at this point. He’s certainly much more violent and much more significant an offender than he was when he committed the . . . sex offense when he was very young. He’s gr aduated, if you will, to robberies, to carjackings, to assaults, to use of guns and being in gangs . . . . [¶] . . . [W]e had many discussions off the record, and I was hoping to try to find a placement which I thought might make sense for him, and that one was sp ecifically [ROP]. I thought he would do very well there. . . . I don’t think Woodward . . . is anywhere close to that type of program. . . . I did as much research as I c ould, and . . . I thought it was a much different type of placement.” The court found that Ryan’s mental and ph ysical conditions and qualifications were such that he probably would benefit from programs provided at DJF. “[H]e needs to be in a locked facility and to obtain the educ ation that [DJF] has to offer for him . . . [including] substance abuse treatment, anger management, victims’ awareness activities, specialized programs fo r people who are emoti onally disturbed.” On the reports critical of DJF, the court no ted several comments in the reports about vast improvements. “Mental health . . . is the one area that was not improved yet, but there’s a plan to improve it, and I think that Ryan would benefit from that plan.” Personally addressing Ryan, the court said: “You and I have been with each other for many, many times, many weeks and months , and you know I really think you can make it. I think you have it in you that you can do it, and I don’t think that [DJF] is going to be as awful as maybe you might think also . We’ve had quite a fe w kids come through here who have done fine at [D JF]. They get educat ed. They get their G.E.D. or get their high school diplomas. They don’t get in fight s. They don’t bang and they just do what they have to do and they get through it, and I think you’re capable of that, I really do. You’re darn lucky that the dist rict attorney didn’t try to file this as an adult against you because that actually was what I thought they would have done for this case, and if that were the case, you’d be, more than likely, going to prison. So do wh at you have to do. Take advantage of it.”8 The court committed Ryan to DJF for the maximum term of commitment of eight years three months, with cred it for 690 days time served.
II. D ISCUSSION The court has the authority to commit an offender in a case like Ryan’s to a range of restrictive placements up to and includi ng a DJF commitment. (§§ 727, 730, 731, 733.) In choosing an appropriate disposition, the court must consider, “in addition to other relevant and material evidence, (1) th e age of the minor, (2) the circumstances and gravity of the offense comm itted by the minor, and (3) the minor’s previous delinquent history.” (§ 725.5.) The court also must be guided by the purpose of California’s juvenile delinquency law, which is to “provide for the protection and safety of the public and each minor under the jurisdiction of the j uvenile court and to pr eserve and strengthen the minor’s family ties wh enever possible . . . . [¶] . . . Mino rs . . . shall . . . receive care, treatment, and guidance that is consistent w ith their best interest, that holds them accountable for their behavior, and that is a ppropriate for their circumstances. This guidance may include punishment that is consistent with the rehabilitative objectives of this chapter. . . . [¶] . . . [¶] . . . As used in this chapter, ‘punishment’ means the imposition of sanctions. It does not include retri bution . . . .” (§ 202, subds. (a), (b), (e);
In re Carl N. (2008) 160 Cal.App.4th 423, 432–433 .) Before the court may commit a ward to DJF, it must be “f ully satisfied that the ment al and physical condition and qualifications of the ward are such as to rend er it probable that he will be benefited by the reformatory educational discipline or other treatment provided by the [DJF 4 ].” (§ 734.)
There also must be evidence of “the inappropriaten ess or ineffectiveness of less restrictive alternatives.” ( In re Angela M. (2003) 111 Cal.Ap p.4th 1392, 1396.) “The decision of the juven ile court to commit a juvenile offender to [DJF] may be reversed on appeal only by a showing that the court abused its discretion. [Citation.] ‘[D]iscretion is abused whenev er the court exceeds the bounds of reason, all of the

4 On and after July 1, 2005, statutory re ferences to the Calif ornia Youth Authority are deemed to refer to the DJF. (§ 1000.)9 circumstances being considered.’ [Citation.] [¶ ] . . . ‘[A]n appellate court will not lightly substitute its decision for that rendered by th e juvenile court. We must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substan tial evidence to support them. [Citations.] In determining
whether there was substantial evidence to support the commi tment, we must examine the record presented at the disposition hearing in light of the purposes of the Juvenile Court Law.’ ” ( In re Carl N., supra, 160 Cal.App.4th at pp. 431–432.) Ryan argues there was in sufficient evidence to suppor t a finding that he would probably benefit from a commitment to DJF. First, he argues his personal safety was at
risk in DJF because he had b een labeled a snitch and received threats against his life. Ryan cites no evidence that DJ F could not protect him from any enemies who might be in DJF, which is a statewide system with fac ilities in numerous counties. Ryan does not dispute that he was safe at Contra Costa County Juvenile Hall, ju st one county removed from the juvenile hall in Alamed a County. Further, the reports Ryan cites to demonstrate violence and fear persist at DJF also includ es evidence that violence and fear have decreased and a security classification syst em has been successfully implemented to separate youth with high risk of violent activity from those with a lower risk evidence. Ryan asserts that DJF could not adequate ly address his mental health and special education needs, citing the special master’s re port of ongoing issues in mental health and educational programming. However, Ryan does not identify specif ic mental health treatment or educational programming he needs that is unavailable at DJF. The special master’s report indicates that DJF operate s high schools offering special education services and that, as of July 2013 (prior to Ryan’s Oct. 2013 commitment), DJF had hired new mental health program leadership and established new implem entation goals. With regard to Ryan’s more specifi c argument that he would not receive adequate sex offender treatment at DJF, the special master’s report indicates that DJF provides a sexual behavior treatment program. Moreover, the r ecord does not show a compelling need for sex offender treatment in Ryan’s case. A lthough the first of Ryan’s four section 602 petitions charged a sex offense following ot her disciplinary referrals involving sexual10 conduct, Ryan was in middle school at the time, the charge was reduced to simple battery and a psychologist concluded in a court-orde red assessment that Ryan was not a sexual predator. The psychologist recommended i ndividual therapy, not specialized sex offender treatment. Ryan’s more recent offe nses involved firearms, theft and evading or resisting arrest. The fact that Ryan was rejected from one program because he had not undergone sex offender treatment, or th e possibility he might benefit from such treatment, did not require the court to d eem it an overriding consideration in the disposition calculus. Ryan further argues there was insuffici ent evidence that th e less restrictive
alternative of Woodward was an inappropriate placement for him. The court expressed its concern, however, with the limited inform ation Ryan provided about Woodward. The brochure provided by Ryan de scribed Woodward as a highly-structured community residential program aimed at redirecting delinquent behavior to ward more positive conduct and offered education, sex offender and substance abuse treatment. The court
conducted additional research about Woodward and concl uded that sending Ryan there would be “like trying to put a square peg in a round hole” in that it did not seem to provide the structure and servi ces Ryan’s increasingly violent behavior required. Ryan also had a history of absco nding from nonsecure residential programs, and Woodward had accepted Ryan specifically into its sex o ffender program, thereby focusing treatment
on an issue that evidence indicated was not Ryan’s pressing need. The juvenile court also seriously consid ered a less restrictiv e alternative to DJF commitment for Ryan and all relevant criteri a and circumstances. Apparently several discussions regarding placement were held off the record with counsel and the disposition hearing was repeatedly contin ued, providing counsel and th e probation department ample time to identify and inform the court about po ssible alternative placements. As the court said, “I think I’ve had more thought and resear ch and feelings about this case than any other in 25 years, which is saying a lot because I’ve had ki ds who have done well and done poorly and had all kinds of issues . . . .” We will not second guess the court’s judgment in this case. The court acted we ll within its discretion in determining that11 Ryan’s personal needs, and th e protection of public safety , warranted a commitment to
DJF.
III. D ISPOSITION The disposition order is affirmed.

_ ____________ ____________ Bruiniers, J.

We concur:

_____________ ____________ Jones, P. J.

_____________ ____________ Needham, J.