Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J0800579
Jenkins, J.
Defendant and appellant B.B., a minor, appeals the dispositional order of the juvenile court committing him to the Department of Juvenile Justice (DJJ) for a maximum term of five years. Defendant contends the juvenile court erred by: (1) failing to conduct a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden); (2) excluding certain testimony of defendant’s expert at the dispositional hearing; and, (3) committing him to DJJ absent sufficient evidence to show he would benefit from the commitment and that no less restrictive alternative was appropriate. Defendant’s contentions are meritless. Accordingly, we affirm the juvenile court’s dispositional order.
Facts and Procedural Background
1. Pre-Arraignment
On April 2, 2008, the Contra Costa County District Attorney filed a juvenile wardship petition pursuant to Welfare and Institutions Code section 602, subdivision (a), charging defendant in count one with attempted murder of Alex Joseph, in violation of Penal Code sections 187 and 664. In count two, the petition charged defendant with assault with a firearm on Mable Stallworth, in violation of section 245, subdivision (a)(2). With respect to count one, the petition alleged defendant intentionally discharged a firearm (section 12022.53) and personally used a handgun (section 12022.5, subd. (a)(1)). With respect to count two, the petition alleged defendant personally used a handgun and personally inflicted great bodily injury on Mable Stallworth (section 12022.7, subd. (a)).
Further statutory references are to the Penal Code unless otherwise noted.
The above charges are based on the following underlying events: On January 22, 2008, police responded to a “shots fired” call near 17th Street in Richmond. At the scene, officers found a vehicle crashed into a house. Officers noted the rear window of the vehicle was shattered and inside found Mable Stallworth sitting in the front driver’s seat, disorientated and bleeding from the back right side of her head. Before she was transported to hospital, Stallworth was able to tell police that she was travelling west on Ohio Avenue, heard a loud bang, lost consciousness momentarily and then woke when her vehicle crashed. Stallworth’s condition was listed as serious with bone fragments to her brain. A neighbor informed police he saw a green Buick racing away from the area where the shots were fired.
These events are described in the probation report filed on March 13, 2009, the narrative of which was based on Richmond Police report number 08-6574.
On March 27, 2008, Richmond Police received information on the shooting in an interview with Alex Joseph. Joseph told police that on the day of the shooting, he was driving his green Buick when he saw a blue van with tinted windows. Joseph knew the van belonged to a person he was “feuding” with and noticed the van had begun to follow his vehicle. After the van pulled in behind Joseph’s vehicle, the passenger in the right front seat of the van leaned out the window and began shooting at him. Joseph stated that the first two shots missed his vehicle and hit the car in front (Ms. Stallworth’s vehicle), and the second two shots hit the Buick. After the shooting, the blue van fled the scene. Joseph told police that he recognized the shooter as a person with the nickname “Bo Mony.” In a second interview on March 27, 2008, Joseph identified defendant from a photographic lineup.
On March 30, 2008, police responded to a “shots fired” call in the area of 18th Street and Bissell Avenue in Richmond. Citizens informed officers that a black male, later identified as defendant, was involved in the shooting and that he ran into a residence on Chanslor Avenue carrying a “long gun.” When officers went to the residence on Chanslor Avenue, the owner, defendant’s grandfather, told police defendant ran into the house and then immediately left. Defendant’s grandfather consented to a search of the premises. Police found ammunition in defendant’s room and a SKS type 56 rifle in his brother’s bedroom.
On March 31, 2008, defendant was stopped for driving without a license and subsequently placed under arrest for attempted murder. When questioned by police, defendant denied any involvement in the drive-by shooting on January 22, 2008. Later, defendant admitted he was in the van that chased a green Buick but said that a person named “Michael” was the shooter.
2. Pre-Trial
On August 25, 2008, defendant appeared with counsel for a pretrial conference. Defendant’s counsel announced the parties had agreed to a disposition under which defendant would plead “no contest” to count 2, the victim in count 1 would be added to the charge in count 2, and the charge and allegations in count 1 would be dismissed. The court questioned defendant regarding the consequences of such a plea. Defendant stated he understood he could be committed to DJJ and that the maximum term of confinement was 17 years. Defendant stated he understood all the constitutional rights he would surrender if he entered an admission to count 2 with the enhancements. Further, defendant confirmed that no “promise or deals” had been made to persuade him to enter the plea other than what the trial court stated on the record, that no one threatened or forced him into making the plea, and that he had discussed the matter thoroughly with his attorney. Defendant also confirmed he understood that if he entered a plea of “no contest” the court would treat it as an admission to the charge, and stated he still wished to plead “no contest.” Thereafter defendant entered a plea of “no contest” to the charge of assault with a firearm on Joseph and Stallworth (§ 245, subd. (a)(2)) and to allegations that during commission of the offense he personally used a firearm (§12022.5, subd. (a)(1)) and personally inflicted great bodily injury on Stallworth (§ 12022.7, subd. (a)). Whereupon the court found defendant entered the plea freely and voluntarily and set disposition for September 10, 2008.
The probation report prepared in connection with the disposition hearing on September 10 stated that defendant was interviewed at juvenile hall on September 4, 2008 (about 10 days after he entered his plea). The report noted that defendant was cooperative and respectful throughout the interview. The report states that in the interview defendant denied being in the van involved in the drive-by shooting, denied shooting any gun and denied being in possession of any weapon at any time. Also, the report states that in the interview defendant claimed the police “tricked” him into saying he was in the van, and “now he feels his public defender ‘lied to’ him.”
Regarding defendant’s medical and psychological condition, the probation report states that both defendant and his mother acknowledge defendant suffers from severe anger control issues which require attention. Regarding defendant’s family, the report states that defendant’s mother reported that defendant “is not willing to live with her, is defiant, has not attended school for one year, and is running the streets.” According to mother, defendant’s grandparents cannot control defendant and do not make him go to school. Also according to mother, defendant “is hanging out with men much his senior,” and she described defendant as “a very angry young man who believes no one can tell him what to do.” Regarding defendant’s interim detention, the probation report notes defendant has been detained in juvenile hall for 164 days (from March 31, 2008-September 10, 2008). Staff at juvenile hall report defendant behaves appropriately and is respectful, and that he is currently a Level 1 resident on the incentive program, the highest privilege level.
Regarding screening for placement, the report states defendant’s case was screened by a DJJ agent, who advised that if committed to DJJ defendant would be considered category IV and eligible for parole in two years. The agent advised DJJ would provide defendant with a high school program and counseling to include substance abuse, anger management and victim awareness. The report states defendant had not been screened for the county’s Orin Allen Youth Rehabilitation Facility (OAYRF) because it does not accept offenders who use a weapon in the commission of a crime.
Analyzing the risks posed by defendant, the report stated, among other things, “The act of shooting out of a vehicle towards another moving vehicle during afternoon hours in a residential community is completely disturbing. Just as it did, the possibility of injury to an innocent bystander is highly present. His recklessness in the community proves the minor to be a complete menace to society. Furthermore, he has failed to accept responsibility for his behavior and expressed no remorse for his actions. He is in need of strict consequences to provide for the public safety and comfort to the victims.”
Regarding the minor’s case needs, the report stated: “The minor needs a locked and secure environment to insure protection to the community. He requires a highly supervised environment where his behavior can be closely monitored and he will not be allowed to victimize others. At DJJ, the minor will reside in a structured environment that will insure he obtains academic skills and a high school education. He will receive counseling services to address drug use, victim awareness and empathy, anger management, and possible issues of abandonment arising from his mother’s past substance abuse.” The report stated that probation supervision and commitment to OAYRF had been considered but deemed inappropriate, and recommended defendant be committed to DJJ.
The dispositional hearing was continued several times between September 10, 2008 and the date of the hearing on March 13, 2009. During this interval defendant continued to be detained in juvenile hall. On October 10, 2008, the hearing was continued upon the court’s order that probation screen defendant for placement suitability. On October 30, 2008, probation submitted a memorandum to the court stating that given the seriousness of defendant’s violation and the threat he posed to the community, defendant was found inappropriate for placement at the Orin Allen Youth Rehabilitation Facility and the Youthful Offender Treatment Program. In response, the court ordered probation to further screen defendant for several out-of-county placement facilities and continued the matter. On November 20, 2008, probation submitted a further memorandum to the court stating that defendant had been referred to Bar-O, Crystal Creek and Fouts Springs, and had been accepted for placement at the latter facility. After further continuances, the dispositional hearing was finally set for March 13, 2009.
3. Disposition Hearing
At the outset of the disposition hearing on March 13, 2009 the court stated it had read and considered the probation report of September 10, 2008, and the placement memoranda of October 10 and November 20, 2008. The probation officer added that defendant had now been in detention at juvenile hall for 348 days, “is doing well... and there have been no problems reported.” After the district attorney submitted the matter on the basis of the probation reports, defense counsel called and examined the probation officer, followed by defendant’s mother. The final witness for the defense was Daniel Macallair, executive director of the Center on Juvenile and Criminal Justice, a nonprofit organization based in San Francisco providing direct services, policy analysis and technical assistance in the field of adult and juvenile justice. The prosecution declined voir dire and accepted Macallair as an expert qualified on the ground tendered by the defense, namely, youth incarceration and juvenile justice. In part, Macallair testified about the “Farrell Litigation,” a case in which the state entered a consent decree to develop plans for improving facilities within the DJJ. On several occasions during Macallair’s testimony on the Farrell Litigation, the prosecutor interposed various objections on foundational, vagueness and relevancy grounds that were sustained by the trial court. Macallair also testified about the intake, classification and parole procedures at DJJ, as well as the nature of the group counseling services provided at DJJ. On the key issue of placement, Macallair opined that the types of services defendant requires, such as anger management and victim awareness counseling, are available in a group home setting, which he saw as the “natural alternative” for defendant to DJJ placement.
After receiving evidence and entertaining argument by counsel, the trial court issued its ruling, committing defendant to DJJ for a maximum term of five years. Defendant filed a timely notice of appeal on April 29, 2009.
Discussion
1. Marsden Hearing
Defendant contends that the juvenile court erred by treating his “claim of factual innocence and ineffective assistance of counsel in plea bargaining as evidence of lack of remorse, rather than a circumstance calling for a Marsden hearing.” This contention is based on the probation report of September 10, 2008, in which the probation officer summarizes an interview he conducted with defendant on September 4, 2008. In particular, the probation report states that in the interview defendant asserted his innocence, claimed the police “tricked” him into saying he was in the van and “now he feels his public defender ‘lied to’ him.” Defendant asserts the trial court should have interpreted this language as a request for a Marsden hearing.
“When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. (Citation.) “ ‘ “Although no formal motion is necessary, there must be ‘at least some clear indication by defendant that he wants a substitute attorney.’ ” [Citations.]’ (Citation.) While the law does not require that defendant use the word ‘Marsden’ to request substitute counsel, we will not find error on the part of the trial court for failure to conduct a Marsden hearing in the absence of evidence that defendant made his desire for appointment of new counsel known to the court. (Citation.)” (People v. Richardson (2009) 171 Cal.App.4th 479, 484 (Richardson).)
In our view, the applicable legal standard which requires a “clear indication by defendant that he wants a substitute attorney” (Richardson, supra, 171 Cal.App.4th at p. 484), disposes of his claim of error. Here, the probation officer’s report summarizing remarks made by defendant during an interview is simply insufficient notice to trigger the trial court’s duty to conduct a Marsden hearing. Defendant’s assertion of Marsden error is further undermined by the fact that he appeared in court on several occasions after his probation interview and never expressed any dissatisfaction with counsel.
Furthermore, appellant’s assertion that his claim of actual innocence, coupled with his feeling that counsel lied to him, should have apprised the court that he was receiving ineffective assistance, is flatly unpersuasive in light of defendant’s lengthy and thorough plea colloquy, as well as his admission that he was in the vehicle at the time of the shooting. Similarly unpersuasive is appellant’s reliance on unfounded and speculative assertions about the use of coercive police tactics in connection with Joseph’s identification of the minor or whether some third party was responsible for the crime. None of these various assertions directly or by implication suggest that defendant’s counsel performed so inadequately as to trigger a Marsden enquiry: Rather, these assertions carry all the hallmarks of an unremorseful defendant experiencing buyer’s remorse with his plea bargain, and such is not a situation in which a Marsden inquiry is required. (Compare People v. Molina (1977) 74 Cal.App.3d 544, 547-549 [no showing of inadequate counsel sufficient to trigger Marsden inquiry where defendant stated only that he wished to substitute private counsel for public defender and needed continuance to seek a lawyer] with People v. Mendez (2008) 161 Cal.App.4th 1362, 1366-1367 [defendant’s motion for new trial based on competency of counsel sufficient to put trial court on notice of defendant’s request for Marsden hearing] and People v. Eastman (2007) 146 Cal.App.4th 688, 695-696 [defendant’s letter to trial court in which he asserted defense counsel had failed to adequately represent him triggered trial court’s duty to hold Marsden hearing].) In short, this record contains no evidence that “defendant made his desire for appointment of new counsel known to the court. (Citation.)” (Richardson, supra, 171 Cal.App.4th at p. 484.) Thus, the trial court did not err in failing to conduct a Marsden hearing.
2. Evidentiary Issues
Defendant contends that the juvenile court’s dispositional order should be vacated on the grounds that the judge erred by excluding testimony by Daniel Macallair “concerning compliance with the Farrell consent decree... and instead bas[ed] her judgment upon information she gleaned visiting DJJ facilities on her own.” Regarding exclusion of testimony by Macallair, defendant asserts error on the basis that the trial court sustained, at different points in Macallair’s testimony, objections by the prosecutor on the grounds that the questions posed by defense counsel were, variously, leading, lacking in foundation, vague as to time, or irrelevant.
None of those rulings provide a basis for reversal of the dispositional order. A trial court’s evidentiary ruling will only be reversed if it constitutes an abuse of discretion (see, e.g., People v. Hovarter (2008) 44 Cal.4th 983, 1007-1008), and a trial court abuses its discretion only when its ruling falls outside the bounds of reason, (People v. Benavides (2005) 35 Cal.4th 69, 88.) We have carefully reviewed the transcript of Macallair’s testimony, and conclude that none of the trial court’s rulings amount to an abuse of discretion: Rather, the trial court sustained objections where appropriate and permitted Macallair to testify extensively where his testimony was relevant to the issues at bar. For example, the trial court properly sustained as leading the following question by defense counsel about the Farrell litigation: “So it’s fair to say that the court has not concluded that the reforms have been accomplished, correct?” However, Macallair testified extensively in key areas such as how changes in the categorization of offenses affect a minor’s parole eligibility, and his knowledge of the facilities and programs offered at DJJ together with his perceived deficiencies in those programs.
Furthermore, in our review of the transcript of Macallair’s testimony, we found nothing improper in the trial judge’s comments about the fact that she had visited different types of juvenile facilities in the past. For example, the trial court commented that she had visited the DJJ intake facility at Preston on several occasions and that the categorization of offenses at the intake facility is a matter of public record. Such comments merely illustrate the trial court’s familiarity with DJJ facilities and intake procedures; information that juvenile judges would become familiar with in the dispatch of their responsibilities pursuant to Welfare and Institutions Code section 734. More importantly, nothing in the record supports defendant’s assertion that the trial court injected its general knowledge about different types of juvenile facilities as independent evidence in favor of its decision to commit defendant to DJJ.
Plaintiff’s reliance on Noble v. Kertz & Sons Feed & Fuel Co. (1945) 72 Cal.App.2d 153 (Noble) and its progeny is inapposite. In Noble, the appellate court reversed a judgment because the record demonstrated that the judge viewed the scene of an accident without the consent of the parties and used the information gathered as “independent evidence on a controverted issue so as to support alone a finding otherwise not supported by other evidence, and, in fact, contrary to the evidence introduced.” (Id. at p. 160.) As noted above, nothing in the record suggests the trial court used its experience of juvenile facilities as independent evidence in arriving at the disposition in this case.
3. Sufficiency of Evidence
Defendant contends the judgment should be reversed because there is insufficient evidence that he would benefit from commitment to DJJ and that no less restrictive alternative was available. The juvenile court’s decision to commit a minor to DJJ “will be reversed only when an abuse of discretion has been shown.” (In re George M. (1993) 14 Cal.App.4th 376, 379.) “An appellate court will not lightly substitute its decision for that rendered by the 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 substantial evidence to support them.” (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.) In particular, a commitment to the DJJ must be supported by substantial evidence in the record of 1) probable benefit to the minor, and 2) that less restrictive alternatives are ineffective or inappropriate. (In re George M., supra, 14 Cal.App.4th at p. 379.) “When determining the appropriate disposition in a delinquency proceeding, the juvenile courts are required to consider ‘(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.’ [Citations.]” (In re Jonathan T. (2008) 166 Cal.App.4th 474, 484-485.) A DJJ commitment, however, may be appropriate without previous resort to less restrictive placements. (See In re Angela M. (2003) 111 Cal.App.4th 1392, 1396; see also In re Pedro M. (2000) 81 Cal.App.4th 550, 555-556.) Moreover, “[i]n evaluating the court’s exercise of discretion in committing a minor to [DJJ], we now do so with punishment, public safety, and protection in mind.” (In re Luisa Z. (2000) 78 Cal.App.4th 978, 987-988.)
Applying these guiding principles under the applicable standard of review, we cannot say the trial court abused its discretion in committing defendant to DJJ. First, concerns of public safety and protection favor DJJ commitment. In this regard, the probation report notes that defendant was previously referred to the probation department for misdemeanor battery and misdemeanor carrying a loaded firearm. Under this petition, defendant admitted to a callous act of violence in which he fired multiple gunshots from one moving vehicle at another in broad daylight in a residential neighborhood. This almost resulted in the death of one innocent bystander, could have injured others, and could easily have resulted in the death of his intended victim. The need to protect the public from behavior of this kind strongly mitigates in favor of defendant’s commitment to the DJJ under a locked, secure and highly supervised environment. Moreover, the probation report notes that in the structured environment of the DJJ, defendant will be able to obtain academic skills and a high school education, receive counseling services to address issues of drug use, victim awareness and empathy, and anger management. Within the DJJ, the probation report continues, defendant will have the opportunity “to develop life skills, coping skills and academic skills that will have a positive influence on his future once he is released from custody.” Additionally, the record reflects that less restrictive alternatives were considered and rejected as inappropriate. In this regard, the probation report states defendant was ineligible for Orin Allen Youth Rehabilitation Facility because it does not accept offenders who use a weapon in the commission of a crime. Also, whereas defendant was screened for and accepted at the Founts Springs facility, the trial court considered and rejected that placement because it was not secure enough given the “paramount” concern for public safety in this case. In sum, the record supports the juvenile court’s conclusion that defendant, and the public, will benefit from placing defendant in a locked facility where defendant has an opportunity for rehabilitation while protecting the community from any further acts of extreme violence.
Disposition
The judgment is affirmed.
We concur: McGuiness, P. J.Siggins, J.