Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County No. 03CEJ601088, Timothy A. Kams, Judge.
Carol A. Koenig, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Cornell, J. and Gomes, J.
On May 15, 2007, appellant Guy S., who was then a minor, admitted an allegation in an amended juvenile wardship petition that he committed second degree robbery. (Pen. Code, §§ 211, 212.5, subd. (c)) At the August 7, 2007 disposition hearing, the court adjudged Guy a ward of the court; ordered him committed to the Department of Corrections and Rehabilitation, Juvenile Justice (DCRJJ), formerly known as the California Youth Authority (CYA); declared his statutory maximum period of confinement to be five years, but exercised its discretion to select three years as the maximum period of confinement (Welf. & Inst. Code, §§ 726, subd. (c), 731, subd. (b)); awarded 100 days of predisposition credits; and imposed a $100 restitution fine (Welf. & Inst. Code, § 730.6).
Additional allegations of criminal threats (Pen. Code, § 422) and assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) were dismissed.
On appeal, Guy contends the court abused its discretion in ordering him committed to the DCRJJ. As we shall explain, we disagree and will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Instant Offense
On April 30, 2007, police were dispatched to an apartment building regarding a robbery. The victim, a security guard, reported he was in his apartment recovering from an on-the-job injury and wearing a soft-style neck brace when two male juveniles forcibly entered the apartment. Both of the juveniles were wearing bandanas that covered their mouths and noses. One of the juveniles, later identified as Guy, was holding a black handgun the victim believed to be a 9 millimeter Glock. Guy demanded the victim’s gun. After the victim denied several times that he had a gun, Guy hit him on the head with the butt of the gun, leaving a wound that required seven stitches. During this exchange, the other juvenile searched the apartment.
Guy insisted he wanted the gun the victim used while on duty as a security guard; the victim responded he did not bring that weapon home. The other juvenile took the gun from Guy and demanded that the victim remove his jewelry. The juveniles collected various other items, including a payroll check, jewelry, a DVD player, DVDs, and cell phones, and left the apartment.
The victim told officers Guy, who was a friend of his girlfriend’s son and who he had given rides to in the past, lived nearby. When officers went to Guy’s residence, he fled out a window. Officers found items matching the description of the victim’s property in Guy’s bedroom. A black handgun, later identified as an “Air Soft Pistol,” was also found in the bedroom. Officers subsequently detained Guy and the other juvenile, who the victim positively identified as the robbers.
Previous Wardship Proceedings
In May 2003, Guy was placed on informal probation after being cited for two offenses: (1) on March 20, 2003, it was reported that Guy threatened to take the victim’s bike and when the victim resisted, Guy pushed the victim, causing him to fall and hit his elbow on the concrete, and punched him several times about the face and head; and (2) on April 23, 2003, after two groups of students passed each other in a middle school’s hallway and exchanged words, Guy and another student reportedly engaged in a fist fight. After Guy was cited on May 20, 2003 with shoplifting approximately $100 worth of property from a store, informal probation was terminated and the charges reinstated.
In July 2003, a wardship petition was filed alleging Guy committed theft (Pen. Code, § 484, subd. (a)), disturbance of the peace at a school (Pen. Code, § 415.5, subd. (a)), and battery (Pen. Code, § 242). The latter two charges were dismissed and the court sustained the theft charge, which it declared to be a misdemeanor. Guy was placed on one year of probation, which terminated on September 2, 2004, and ordered to perform community service and receive anger management counseling.
In August 2005, Guy was cited for being involved in a fight with another student at a middle school. Guy was referred to, but failed to complete, community service and victim offender reconciliation program requirements.
On December 17, 2006, Guy was found to have a loaded .38 caliber revolver, with the serial number defaced, in his pocket. Guy said he had purchased the gun a week before from an “unidentified Mexican male ‘crack head’” because he had been stabbed in an earlier incident. Two days later, a wardship petition was filed alleging he was a minor in possession of a concealable firearm (Pen. Code, § 12101, subd. (a)(1)), carrying a loaded firearm (Pen. Code, § 12031, subd. (a)(1)), and carrying a concealed firearm on his person (Pen. Code, § 12025, subd. (a)(2)). Guy admitted the second count after it was reduced to a misdemeanor and the remaining two charges were dismissed. He was committed to the Juvenile Justice Center Program for 60 days and placed on probation through January 17, 2008. He also was ordered not to own or have any dangerous or deadly weapons in his possession, and to attend psychological testing and substance abuse counseling.
Additional Background
When the probation officer’s report was prepared in May 2007, Guy was 17 years, four months old. He was not enrolled in school, and although he should have been in the 11th grade, he had credits only to the ninth grade. During the spring semester of the 2004-2005 school year, Guy received “F”s in all of his classes, and during the fall semester of the “current school year,” he received 1 “B,” 4 “C”s and 6 no credits, which equate to “F”s. Guy had a history of poor school attendance and was dropped for non-attendance in December 2006. Guy said he was enrolled in a home study program after his release from custody on March 5, 2007, but according to the home study program, he did not enroll until April 23, 2007.
Between April 2003 and September 2005, Guy was suspended from school for various misbehaviors, including fighting with another student before school, possession of a pellet gun on campus (which resulted in his expulsion), disrupting class, putting a garbage can over another student’s head, hitting a student in the face, hitting another student in the back of the head, willful defiance, refusal to obey rules, continually cutting class and failing to serve assigned detention.
Guy denied any gang activity, but previously had admitted being a member of the “Diamond Crips” gang. Guy admitted drinking half a bottle of brandy on the day of the instant offense and to using both alcohol and marijuana, although claimed his use of either was rare. Guy lived with his mother, a sister, and two brothers, one of whom was on probation. Guy’s oldest brother was shot to death “last year.” Guy reported that he and his brothers do not listen to their mother, as she tells them to stay home, but once she leaves for work, they all leave. Guy also stated he respects his mother, but does not follow her directives. Guy’s mother, however, reported in a January 2007 disposition report that there were no behavioral issues with Guy and she believed his brother’s murder had affected him and he needed counseling.
A DCRJJ “intake officer” told the probation officer that upon entering DCRJJ, Guy would be a “Category 5,” with a tentative parole consideration date of 18 months. Guy would be assessed for academics and psychological needs. His program would cover victim awareness, gang awareness and conflict thinking. Since he did not appear to have any special educational needs, Guy’s main focus would be school, with an emphasis on getting a high school diploma. Guy would also participate in individual and group counseling.
In recommending Guy be committed to DCRJJ, the probation officer explained: “Less than two months after being released from custody for possession of a loaded gun, the minor forced entry into the victim’s home, and beat and threatened the victim in the hopes of getting another gun. The minor gave very little insight into what motivated him, but did not deny his actions. The victim, having suffered a laceration requiring 7 stitches, reports that he thought he was going to die that day. He stated he had only tried to help the minor in the past by giving him rides. This is even more disturbing that the minor would target someone who had only shown him kindness. [¶] Due to the violent nature of the offense, this officer does not feel that minor can be sufficiently rehabilitated at the local level. The minor has shown he is a danger to the community, as he has shown a repeated desire to be armed. Even after serving a custodial commitment and being placed on probation, the minor continues in his quest to obtain and use firearms. Therefore, for the rehabilitation of the minor as well as protection to the community, this officer feels that a commitment to the Department of Justice is necessary.”
Disposition Hearing
In response to the probation officer’s recommendation, Guy submitted a statement in mitigation, which explained that in October 2005, gang members shot and killed Guy’s brother, and on December 13, 2006, Guy received a small cut on his left hand while trying to help his friend during a fight with three Hispanic males who stabbed the friend. The statement also explained that on April 29, 2007, at 3 a.m., Guy’s mother received two threatening phone calls from “Terry Westside Struter,” who told her Guy had robbed him, she better tell Guy to step out of the house, and she should leave the house because “I’m going to light it up.” Guy told his mother the caller was his ex-girlfriend’s boyfriend. Guy’s mother reported the calls to the police, who took a report later that day.
Guy asserted he committed the instant crime out of fear of predators and the resulting belief he needed a gun for protection, which was reasonable given his brother’s death, being stabbed himself, and the threatening phone call, and he only targeted the victim because he knew he was a security officer who was likely to have a gun. Guy argued he should not be committed to DCRJJ because he had not been afforded the least restrictive alternatives to that recommendation, and DCRJJ commitment would ignore the circumstances leading to his actions on April 30, 2007, as well as his limited criminal history. Instead, Guy asked the court to consider a less restrictive and more appropriate program, such as the Elkhorn Correctional Facility Boot Camp or the Delta Program.
At the disposition hearing, the court stated it had received and considered the probation officer’s report and recommendation, and received and reviewed the statement in mitigation. The court questioned why, if Guy’s intent in entering the victim’s apartment was to take his gun, he actually stole jewelry, DVD components and money, and it appeared to the court Guy intended to commit “a robbery to obtain whatever was available.” Guy’s counsel argued it was clear from the police report that Guy went into the apartment with one goal, to get the security guard’s gun, and he and his co-perpetrator took the other items only after they determined they were not going to achieve that goal. The court replied, “Well, I guess you are asking in part that we go on faith that’s what his intentions were.”
After discussion between the court and Guy’s counsel about the alleged telephone threat, the court heard comments from the prosecutor and probation department representative. In announcing its decision to commit Guy to DCRJJ, the court stated: “ . . . The Court finds that the Minor has been tried on formal probation in the physical custody of a parent or guardian and has failed to reform. [¶] The Court further finds that the Probation Department has considered all local less restrictive programs and forms of custody and is fully satisfied they are inappropriate dispositions at this time. The Court does find that the mental and physical condition of the minor are such as to render it probable that he will benefit by the reformatory, educational, discipline or other treatment provided by the [DCRJJ]. He’s not an individual with exceptional educational needs. . . . ” The court further explained “[i]t is the Court’s hope in making this commitment, which I have given careful consideration, that the Minor will receive gang intervention services which he certainly needs as well as vocational and[/]or educational training so that he can be employed upon his release and be productive in the future.”
DISCUSSION
Guy contends the juvenile court abused its discretion in ordering DCRJJ commitment because the court failed to consider sufficient less restrictive alternatives and there was not substantial evidence to support a finding that such a commitment would be of probable benefit to him. We disagree.
“The appellate court reviews a commitment decision for abuse of discretion, indulging all reasonable inferences to support the juvenile court’s decision. [Citations.] Nonetheless, there must be evidence in the record demonstrating both a probable benefit to the minor by a [DCRJJ] commitment and the inappropriateness or ineffectiveness of less restrictive alternatives. [Citations.] A [DCRJJ] commitment may be considered, however, without previous resort to less restrictive placements.” (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396; accord, In re Eddie M. (2003) 31 Cal.4th 480, 507; In re Ricky H. (1981) 30 Cal.3d 176, 183; In re Lorenza M. (1989) 212 Cal.App.3d 49, 53.) Indeed, “‘[c]ircumstances in a particular case may well suggest the desirability of a [DCRJJ] commitment despite the availability of … alternative dispositions ….’” (In re Tyrone O. (1989) 209 Cal.App.3d 145, 151.) Inasmuch as the juvenile court’s goals are to protect the public and rehabilitate the minor (In re Calvin S. (2007) 150 Cal.App.4th 443, 449), when assessing the record in light of the purposes of the Juvenile Court Law (Welf. & Inst. Code, § 202), a reviewing court must evaluate the exercise of discretion with punishment and public safety and protection, not just rehabilitation of the minor, in mind (In re Lorenza M., supra, 212 Cal.App.3d at pp. 57-58).
We turn first to the issue of the consideration of less restrictive alternatives. In determining the appropriate disposition, “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.) “This section and other relevant policies of juvenile court law require that the court consider ‘the broadest range of information’ in determining how best to rehabilitate a minor and afford him adequate care.” (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329; In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684.) This includes the underlying facts of the dismissed counts, as such consideration was not precluded by the terms of Guy’s plea agreement. (In re Robert H., supra, at p. 1329; In re Jimmy P., supra, at pp. 1684-1685.)
The record shows that Guy had a four year history of aggressive and violent behavior, primarily at school. Despite having completed probation following his adjudication for theft, which included receiving anger management counseling, his violent behavior at school continued. In December 2006, he was in possession of a loaded firearm. Within two months of being released from custody on that offense, and after being ordered not to possess a dangerous or deadly weapon, he committed the instant offense, which involved threatening the victim with an air soft pistol the victim believed was a firearm, assaulting him when he could not produce the gun Guy was looking for, and robbing him. While Guy attempts to minimize his behavior by arguing his conduct “pales in comparison” to other cases where the courts have approved a DCRJJ commitment, his attempt fails in light of his violent and dangerous behavior in striking a neighbor with whom he was familiar and who had been kind to him while attempting to obtain another firearm.
Significantly, Guy was 17 and a half years old at time of the dispositional hearing, leaving little time to attempt to curtail his delinquency within the juvenile justice system. He was tried on informal and formal probation, and had been in custody in juvenile hall for 60 days, yet he failed to comply with the court’s orders. The probation officer, whom we presume to be knowledgeable about the various alternative placements available, opined that local programs would not rehabilitate Guy sufficiently in light of the serious and violent nature of his conduct and his failure to take advantage of his prior opportunities to reform.
Under the circumstances, and in light of the fact defense counsel argued for a local placement, we reject Guy’s claim that the trial court failed to consider less restrictive alternatives. “[I]f there is evidence in the record to show a consideration of less restrictive placements was before the court, the fact the judge does not state on the record his consideration of those alternatives and reasons for rejecting them will not result in a reversal. We emphasize, however, there must be some evidence to support the judge’s implied determination that he sub silentio considered and rejected reasonable alternative dispositions.” (In re Teofilio A. (1989) 210 Cal.App.3d 571, 577.)
Since there is evidence to show consideration of less restrictive placements before the juvenile court, Guy’s argument that reversal is required because both the probation report and the juvenile court failed to explain why less restrictive alternatives would be ineffective is without merit. In In re Ricky H., supra, 30 Cal.3d 176, our Supreme Court rejected a similar argument that because the social study lacked data regarding specific local placement alternatives and the court failed to respond to counsel’s argument that a local placement would be more appropriate, the court failed to adequately consider less restrictive placement alternatives and had a duty to actively inquire into the suitability of less restrictive placements. (Id. at p. 182.) The Supreme Court explained that while a lack of a statement of reasons for DCRJJ commitment makes appellate review of the decision more difficult, “the absence of inquiry does not establish that the superior court failed to consider other placements.” (Id. at p. 184.) Here, as indicated above, the court had before it information that Guy had been tried on informal and formal probation and been confined in juvenile hall. We are aware of no requirement the record contain references to all possible less restrictive alternatives or a specific explanation as to why those alternatives would be ineffective.
Although Guy does not have a lengthy record of wardship proceedings, he is not a mildly delinquent youth for whom a DCRJJ commitment would be inappropriate. (See In re Jose R. (1983) 148 Cal.App.3d 55, 61.) Instead, his behavior and background are such that the court reasonably could conclude the purposes of the Juvenile Court Law could not be accomplished by a less restrictive placement, and that such a placement would be ineffective or inappropriate. (See In re Ricky H., supra, 30 Cal.3d at p. 184; In re Samuel B. (1986) 184 Cal.App.3d 1100, 1104-1105, disapproved on other grounds in People v. Hernandez (1988) 46 Cal.3d 194, 206, fn. 13; compare In re Teofilio A., supra, 210 Cal.App.3d at pp. 577-578 minor not suitable candidate for CYA where he had no criminal record, his conduct was not aggressive or assaultive, he was not armed, and offense was single $60 sale of cocaine.)
Guy next contends there was insufficient evidence to show probable benefit from a DCRJJ commitment. This is not a case, however, in which the probation officer’s report contained little or no concrete information concerning the types of programs that might be available to Guy. Instead, Guy’s specific case had been screened with the DCRJJ intake services coordinator, who related the services Guy would be able to receive. In light of Guy’s background and circumstances, services involving victim awareness, gang awareness, conflict thinking, individual and group counseling, and completion of his high school diploma would undeniably be of benefit to him.
Guy does not contend otherwise. Instead, Guy contends the court abused its discretion in finding probable benefit because there is no evidence the services he would receive at DCRJJ are not also available through local programs or that commitment to DCRJJ would benefit him more than commitment to local programs. The test, however, is not whether Guy could have received benefit from some other program or whether he, or even this court, might believe some other disposition to be preferable. The test simply is whether the disposition the juvenile court actually chose was within that court’s discretion. On this record, we find no abuse of discretion.
DISPOSITION
The order is affirmed.