Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Imperial County, Poli Flores, Commissioner. Super. Ct. No. JJL23730
McCONNELL, P. J.
Seventeen-year-old Hugo R. entered a negotiated admission to one count of sale or transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)). The juvenile court declared Hugo a ward (Welf. & Inst. Code, § 602), and placed him on probation, conditioned on him spending 60 days in juvenile hall. Hugo appeals, contending the court erred by committing him to juvenile hall without considering less restrictive placements.
Further statutory references are to the Welfare and Institutions Code.
FACTS
On April 18, 2007, Hugo, a citizen of Mexico, attempted to enter the United States in a 1990 Ford. Because Hugo appeared nervous, the customs officer directed him to a secondary station, where a drug-sniffing dog detected controlled substances in the vehicle. Custom officials found 48.15 kilograms of marijuana.
On May 2, Hugo admitted he transported the marijuana. In exchange for the admission, two other allegations were dismissed (possession of marijuana for sale and use of a false compartment to conceal a controlled substance).
At the uncontested dispositional hearing on May 16, Hugo's counsel noted this was his first offense and argued against further time at juvenile hall; she urged the court to return Hugo to his parents' custody. The court did not comment on counsel's request; rather, the court followed the probation department's recommendation that Hugo serve an additional 31 days in juvenile hall. The court removed Hugo from the custody of his parents under section 726, subdivisions (a), (b) and (c). The court committed Hugo to 60 days in juvenile hall with credit for 29 days already served and placed him on probation until his 18th birthday. Following this commitment, the court ordered Hugo to be placed in the custody of the Immigration and Naturalization Service.
At the dispositional hearing, the court stated probation would be terminated on Hugo's 18th birthday, November 25, 2008. It is evident from this record that the court misspoke; Hugo's 18th birthday was November 25, 2007. Similarly, the incorrect date appears in the court minutes for the hearing. This is clerical error—that is, an inadvertent error "made . . . in recording the judgment rendered"—as opposed to judicial error—an error "in rendering the judgment." (In re Candelario (1970) 3 Cal.3d 702, 705; see also Stone v. Regents of University of California (1999) 77 Cal.App.4th 736, 744.) An appellate court has authority to correct such clerical errors. (People v. Rowland (1988) 206 Cal.App.3d 119, 124; see also People v. Hartsell (1973) 34 Cal.App.3d 8, 13.) Accordingly, we shall direct the juvenile court to correct the clerical errors.
DISCUSSION
Hugo contends the juvenile court abused its discretion by committing him to juvenile hall without finding that other, less restrictive placements would be ineffective or inappropriate. The contention is without merit.
We begin by noting that in 1984, section 202 was amended to recognize punishment as an aid to rehabilitating a minor. (In re Asean D. (1993) 14 Cal.App.4th 467, 473.) "[T]he 1984 amendments to the juvenile court law reflected an increased emphasis on punishment as a tool of rehabilitation, and a concern for the safety of the public." (Ibid.) Although rehabilitation remains the goal, the emphasis at a disposition hearing has shifted from the "less restrictive alternative" approach to the " 'protection and safety of the public' " approach, and punishment is properly employed as a rehabilitative tool. (In re Teofilio A. (1989) 210 Cal.App.3d 571, 576; § 202, subds. (a) & (b).)
In making a dispositional order, the juvenile 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." (§ 725.5.)
When a public offense has been committed by a juvenile, the dispositional order is within the sound discretion of the juvenile court. (In re Michael R. (1977) 73 Cal.App.3d 327, 332-333.)
When a minor is placed under probation supervision, the court may impose all reasonable conditions so that "justice may be done and the reformation and rehabilitation of the ward enhanced." (§ 730, subd. (b).) A commitment to juvenile hall as a condition of probation may arguably be viewed as punitive, but it serves the overall purpose of rehabilitating a minor. (In re Ricardo M. (1975) 52 Cal.App.3d 744, 748-749.) "The purpose of such a confinement order is to impress upon the juvenile the seriousness of the misconduct, without the imposition of a more serious commitment." (In re Ronny P. (2004) 117 Cal.App.4th 1204, 1207.) "The confinement order informs the juvenile that continued misconduct will lead to even more serious consequences and thus encourages rehabilitation." (Ibid.)
"A juvenile court's commitment order may be reversed on appeal only upon a showing the court abused its discretion." (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.) " ' "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." ' " (Id. at p. 1330.) It is not our role to determine what we believe to be the most appropriate placement for a minor; that determination is one for the juvenile court. (In re Khamphouy S. (1993) 12 Cal.App.4th 1130, 1135.) "An appellate court will not lightly substitute its decision for that rendered by 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 determining whether there was substantial evidence to support the commitment, we must examine the record presented at the disposition hearing in light of the purposes of the Juvenile Court Law." (Ibid.)
Here, the court's disposition conformed with the policies set forth in section 202. (In re Robert H., supra, 96 Cal.App.4th at p.1330; see also In re Teofilio A., supra, 210 Cal.App.3d at pp. 576-577.) The gravity of the offense is by statute a proper consideration at disposition. (§ 725.5.) Transporting 41.15 kilograms of marijuana, a felony, is a serious offense. In addition to the felony status of the offense, Hugo attempted to smuggle the marijuana into the United States. Further, the large amount of the drug indicates the marijuana was to be sold. These are circumstances indicating that a less restrictive placement would be ineffective or inappropriate to satisfy the goals of holding Hugo accountable for his actions and the community's interest in protection from crime. (§ 202, subds. (a), (b); see, e.g., In re Asean D., supra, 14 Cal.App.4th at p. 473.)
On this record, the court properly exercised its discretion by concluding that Hugo should remain in juvenile hall for an additional 31 days for transporting 41.15 kilograms of marijuana. The fact that Hugo was a first-time offender does not render the juvenile hall commitment an abuse of discretion.
Hugo further contends the court abused its discretion by failing to consider less restrictive alternatives before committing him to juvenile hall. In support of this argument, he relies on cases involving commitments to the California Youth Authority (CYA). (See e.g., In re Teofilio A., supra, 210 Cal.App.3d 571.)
"Since July 1, 2005, the Department of Youth Authority has been renamed 'the Department of Corrections and Rehabilitation, Division of Juvenile Facilities.' (§ 1703, subd. (c).)" (In re Lemanuel C. (2007) 41 Cal.4th 33, 37, fn. 2 .) Since the parties rely on cases, which refer to the CYA, we shall as well for the sake of clarity and consistency.
A order committing a minor to CYA differs from other dispositional orders made by the juvenile court. Section 734 requires the juvenile court to be "fully satisfied" the minor will receive a probable benefit from a CYA. There is no similar statutory requirement for other dispositional commitments.
To justify removal of the minor from the physical custody of his or her parents, the governing section is section 726, which requires a specific finding. Section 726, subdivision (a) reads in relevant part:
"[N]o ward . . . shall be taken from the physical custody of a parent or guardian unless upon the hearing the court finds one of the following facts: [¶] (1) That the parent or guardian is incapable of providing or has failed or neglected to provide proper maintenance, training, and education for the minor. [¶] (2) That the minor has been tried on probation while in custody and has failed to reform. [¶] (3) That the welfare of the minor requires that custody be taken from the minor's parent or guardian."
In re Kenneth H. (1983) 33 Cal.3d 616, 621, our Supreme Court held section 726 requires a finding only in the language of the statute and additional express findings are not required. Here, the court made the requisite findings under section 726 and stated: "The minor requires that custody be taken temporarily from the minor's parent or guardian." (See § 726, subd. (a)(3).)
Under the CYA cases, there must be some evidence the court considered a less restrictive placement. (In re Teofilio A., supra, 210 Cal.App.3d at p. 577.) " ' "The statutory scheme . . . contemplates a progressively restrictive and punitive series of disposition orders . . . — namely, home placement under supervision, foster home placement, placement in a local treatment facility and, as a last resort, Youth Authority placement." ' " (In re Aline D. (1975) 14 Cal.3d 557, 564.)
Although a juvenile court must consider less restrictive alternatives, there is no absolute requirement that a court must attempt less restrictive alternatives before placing a minor in CYA. (In re Ricky H. (1981) 30 Cal.3d 176, 183.) Further, the court does not need to state on the record its consideration of less restrictive alternatives. "If 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." (In re Teofilio A., supra, 210 Cal.App.3d at p. 577.)
Here, it is clear that the option of an in-home disposition was before the court; counsel's argument urged such an alternative placement rather than the juvenile hall commitment that the probation department recommended. Even though the court did not state its reasons for choosing juvenile hall, on this record we conclude the court considered a less restrictive placement.
DISPOSITION
The juvenile court is directed to correct the clerical errors discussed in footnote 2, ante. The order, as modified, is affirmed.
WE CONCUR: McDONALD, J., O'ROURKE, J.