Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County No. DL022482, Claudia Silbar, Judge.
Jean Matulis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Raymond M. DiGuiseppe, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O’LEARY, ACTING P. J.
Juan G. appeals from a judgment rendering him a ward of the juvenile court (Welf. & Inst. Code, § 602) after the juvenile court found true he committed first degree murder, street terrorism, attempted murder, and found true firearm and street terrorism allegations. He argues the court erroneously denied his motion to continue, insufficient evidence supports his convictions and the allegations, and the court erroneously committed him to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJJ). None of his contentions have merit, and we affirm the judgment.
FACTS
One June evening, John Kelsey, “Pumba,” “Tiny,” “Dope,” and “Criminal” were visiting in front on an apartment building Kelsey previously called home. A blue Dodge van with the driver’s side door facing the men drove by. The van’s driver and Kelsey “mad-dogg[ed]” each other as the driver continued to drive away. Approximately five to 10 minutes later, the van returned, this time with the passenger side door facing the men. The van’s driver stopped the van, the van’s sliding door opened, and someone from inside the van who was sitting on the middle seat started shooting. Kelsey, who threw himself on the ground, heard seven shots. He could not identify the men because their faces were covered with rags, but he said there were five men in the van: the driver, a front passenger, two on the middle seat, including the shooter, and one on the back seat. Kelsey believed the gun to be a .22 caliber. Kelsey was shot in the chest and armpit, and his friend, Esteban Cuellar, died from a gunshot wound to his chest.
Approximately four months later, Officer Matthew McLeod interviewed 14-year-old Juan who was 13 years old at the time of the shooting. After advising Juan of his Miranda rights, Juan told McLeod he “back[ed] up” and “tagg[ed] for” the “Walnut Street” gang for approximately one year. Juan described “backing up” a fellow gang member meant supporting them “in any way, such as assisting them in a physical fight or continuing an assault if that fellow gang member was unable[.]” Juan stated he knew “several current and active Walnut Street gang members” who were his “homeboys.” Juan stated he had not been “jumped in” to the Walnut Street gang, but had been committing vandalism for the gang, which led McLeod to believe he had either “crimed in” or “walked in” to the gang. Juan named several Walnut Street gang rivals, including the “Bishop Street” gang. Juan stated something had recently happened between Walnut Street and Bishop Street and they were rivals. Juan said he was aware of several Walnut Street related shootings. He explained the Walnut Street gang possessed several guns and they were “available [to] him to take care of business[.]” He said these guns were passed around to any Walnut Street gang member who needed a gun.
McLeod testified he interviewed Juan on December 19, but Officer David Rondou testified the interview was on October 19.
Miranda v. Arizona (1966) 384 U.S. 436.
Juan initially denied being involved in the shooting, but changed his story. Juan explained he was standing in Walnut Street territory when a blue van with five or six Walnut Street gang members stopped. They asked him to get into the van, and he did. Although he initially refused to identify them, Juan stated their monikers were “Casper,” “Ghost,” “Clumsy,” “Menace,” and “Mono.” Juan stated that when he got into the van, he saw Clumsy, who was sitting in the middle of the van, “loading a semi-automatic handgun.” He told McLeod, “he knew that the group was going to do a drive-by shooting.” Juan explained he sat in the back of the van, and after driving for approximately eight minutes, Clumsy told everyone to be quiet. He again said he knew “the group was about to do a drive-by” shooting. Juan said the driver stopped the van, the sliding door opened, Clumsy started shooting, and he ducked in the back. Juan stated that as Clumsy fired the gun, he yelled Walnut Street. The van’s driver returned to the same area where it had picked up Juan. When McLeod asked Juan what his role was in the shooting, he said it was to “backup” or support his fellow gang members.
An amended petition charged Juan with murder (Pen. Code, § 187, subd. (a)) (count 1), street terrorism (§ 186.22, subd. (a)) (count 2), and attempted murder (§§ 664, subd. (a), 187, subd. (a)) (count 3). The petition requested the juvenile court consider Juan’s prior criminal record and commit him to the DJJ (Welf. & Inst. Code, § 726, subd. (c)). As to count 1, the petition alleged Juan committed the murder to further a criminal street gang (§ 190.2, subd. (a)(22)), from a motor vehicle (§ 190.2, subd. (a)(21)), and while being a gang member vicariously discharging a firearm causing death (§ 12022.53, subds. (d), (e)(1)). Additionally, the petition alleged Juan committed count 3 while being a gang member vicariously discharging a firearm causing death (§ 12022.53, subds. (d), (e)(1)). Finally, the petition alleged Juan committed counts 1 and 3 for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
All further statutory references are to the Penal Code, unless otherwise indicated.
At the contested adjudication hearing, the prosecutor offered McLeod’s testimony concerning the culture and habits of criminal street gangs. After detailing his background, training, and experience, McLeod explained a person can join a criminal street gang by “being jumped in, crimed in, or walked in.” McLeod explained the importance of respect in criminal street gangs and stated gangs and gang members gain respect by committing violent acts. He stated “backup means supporting one’s fellow gang members in any way possible[.]” He added that providing “backup” is one of the easiest ways to share in the notoriety of committing a crime because a gang member does not have to be the person who actually fires the gun. McLeod stated a gang gun is a gun any gang member may use, hide, and know its whereabouts.
Based on his training and experience, McLeod explained the evolution of Walnut Street and opined it was a criminal street gang as statutorily defined. He stated Walnut Street gang’s primary crimes were violent assaults and vehicle theft and there were other Walnut Street associates in the van with Juan. McLeod explained the Walnut Street and Bishop Street gangs are bitter rivals and had been for some time. He stated this shooting occurred in Bishop Street territory, and there were three other shootings in the same area about the same time as well as a previous assault and vandalism. Based on his investigation of this case, Juan’s prior contacts with law enforcement officers, and Juan’s prior admission his moniker was “Li’l One” and he associated with the Walnut Street gang, McLeod opined Juan was an active participant in Walnut Street at the time of the incident. McLeod opined a drive-by shooting in rival territory would bring respect to Walnut Street because it is the killing of a rival.
The juvenile court found true all counts and enhancements except the section 190.2 allegations, which the court found to be not true. The juvenile court found the maximum term of confinement to be as follows: count 1, life; count 2, three years; count 3, life; section 12022.53, subdivisions (d), and (e)(1), enhancements, consecutive life terms; section 186.22, subdivision (b)(1), enhancements, 10 years.
At the dispositional hearing, the juvenile court explained it considered the probation report, a psychological evaluation prepared by Jennifer Bosch (the Bosch report), a document entitled, “‘Safety and Welfare Plan Implementing Reform in California” (the Safety and Welfare Plan), and sentencing briefs. As relevant here, the court explained Juan had twice been placed on supervised probation and failed to reform arising out of incidents in September 2005 and January 2006. The court stated the maximum term of confinement was as follows—75 years, plus an additional life term, plus a three year term. Based on the facts of this case, the post-conviction submissions, Juan’s family background, school performance, behavioral issues, prior record, substance abuse, and non-remorse, the fact there were no further local-level resources, and the fact there were no less restrictive placements Juan had not already tried and failed, the court “committed [Juan] to the [DJJ].” The court committed him for 75 years to life.
DISCUSSION
I. Motion to continue
Juan argues the trial court erroneously denied his motion to continue the contested adjudication hearing because his parents were not there. We disagree.
“The United States Supreme Court has repeatedly recognized that the ‘Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.’ [Citation.]” (In re James R. (2007) 153 Cal.App.4th 413, 428-429.) Welfare and Institutions Code section 679 provides: “A minor who is the subject of a juvenile court hearing and any person entitled to notice of the hearing under the provisions of [s]ection 658, is entitled to be present at such hearing.” Parents are entitled to notice of the hearing, and therefore, are entitled to be present at a hearing. (Welf. & Inst. Code, §§ 658, subd. (a), 656, subd. (e); Cal. Rules of Court, rule 5.530(b) [“the following persons are entitled to be present: (1) The child; (2) All parents”].)
“A continuance shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the moving party at the hearing on the motion. Neither stipulation of the parties nor convenience of the parties is, in and of itself, good cause.” (Welf. & Inst. Code, §§ 682, subd. (b), 700; Cal. Rules of Court, rule 5.550(a)(2) [“Continuances may be granted only on a showing of good cause, and only for the time shown to be necessary[]”].) “The determination of whether good cause exists is left to the sound discretion of the trial court.” (In re Maurice E. (2005) 132 Cal.App.4th 474, 481.)
Although parents are entitled to be present at a contested adjudication hearing, there is no statutory or decisional authority mandating parents be present at such a hearing. (In re Eric J. (1988) 199 Cal.App.3d 624, 629 [neither the statutory rule nor the rules of court “expressly gives the minor an absolute right to have his or her parents present at the adjudication hearing”] (Eric J.).) In Eric J., the court addressed the issue of whether minor “had the right to have his mother present at his adjudication hearing[.]” (Id. at p. 628.) The court found it unnecessary to answer that question concluding “that when a particular minor’s dependence on or need for his or her parent renders preparation of a defense impossible without that parent’s assistance and when that parent is willing and able to assist the minor, such a minor does have the right to a reasonable continuance to make reasonable efforts to secure the presence of his or her parent at the adjudication hearing.” (Id. at p. 630.) The court concluded the juvenile court erroneously denied minor’s motion to continue because minor’s defense counsel demonstrated her representation was inadequate because minor refused to cooperate with counsel due to the absence of his ill mother. (Id. at p. 630.)
In In re Byron S. (1986) 176 Cal.App.3d 822, 828-829 (Byron S.), the court addressed the issue of whether the presence of a parent at the adjudication hearing, as opposed to the dispositional hearing where physical custody of the minor may be taken, is a prerequisite to the validity of the adjudication hearing. Minor’s deaf father objected on numerous occasions to the proceedings on the ground that “he could not understand the court-appointed deaf interpreter.” (Id. at p. 825.) The court opined “the minor is entitled to the full participation and assistance of his father at the adjudication hearing as well as the disposition hearing.” (Id. at pp. 828-829.) The court concluded minor was not prejudiced because his mother was present, neither parent was a percipient witness to the crime, everyone was represented by counsel, and minor communicated with his father. (Id. at pp. 828-829.) The facts in Eric J. and Byron S. are different than the facts here.
Here, Juan’s mother had attended hearings on October 24, 2006, October 31, 2006, November 15, 2006, November 30, 2006, December 15, 2006, and January 3, 2006. Juan’s father attended all but the October 24 hearing. On the date set for trial, January 3, 2007, with Juan’s parents present, Juan’s counsel requested a continuance to obtain additional discovery. The juvenile court rescheduled the hearing for January 8, and allowed Juan to visit with his parents. On January 8, Juan’s counsel requested a continuance to locate an alibi witness. The prosecutor objected on the grounds she and her witnesses had gone to “extraordinary measures” to be ready for trial the previous week and she was not aware of the continuance motion until that morning. The court granted the continuance finding there was good cause and allowed Juan to call his parents who were not present to notify them of the new date, February 26.
On February 26, Juan’s counsel requested another continuance. Counsel stated the previously assigned prosecutor indicated the previous week the trial would not proceed on February 26, and counsel advised Juan’s parents the trial would be continued but they could attend to visit. Counsel stated earlier that morning, the previously assigned prosecutor advised her that due to a scheduling change, trial would proceed that afternoon. Counsel stated she could not reach Juan’s parents, but left several messages for them. The new prosecutor objected on the grounds the trial had been continued “on a very similar issue” and that date had been elected to accommodate the minor. The prosecutor indicated the victim and three law enforcement officers were present and ready to testify. The juvenile court denied the motion reasoning that at the January 8 hearing the parents were informed through a Spanish speaking interpreter to return to court that date without further order or notice of the court. The court opined Juan’s parents were given more than adequate notice of the hearing.
Based on the record before us, we conclude the juvenile court properly denied Juan’s motion to continue. As we explain above, it is not mandatory a parent attend a child’s contested adjudication hearing. However, parents are entitled to attend such hearings, and Juan’s parents consistently attended the court proceedings. Their prior attendance did not make their future presence mandatory.
At the February 26 contested adjudication hearing, defense counsel requested a continuance “to have [Juan’s] parents present.” Counsel did not provide any further explanation as to why Juan’s parents presence was necessary. Counsel did not explain how Juan was dependent on his parents or how their absence would prevent her from preparing a defense. The fact Bosch’s report indicated Juan was “immature, impressionable, young[,] and vulnerable” does not mean Juan was dependent on his parents or that their presence was necessary for his defense. Although we do not in any way minimize the importance of a parent’s emotional and moral support for a child, especially in a case like this where 14-year-old Juan stood accused of serious offenses, Juan’s parent’s were not percipient witnesses to the crime and it does not appear they were going to testify. Juan has failed to demonstrate how the outcome of the proceedings would have been any different had his parents been present.
Despite our conclusion the court properly denied the motion, the record is clear Juan’s parents were not at the January 8 hearing, and therefore, the court did not notify them the hearing had been rescheduled to February 26 through a Spanish speaking interpreter. Instead, the court allowed Juan to call his parents to notify them of the new date. However, this does not change our conclusion the court properly denied Juan’s motion.
Although we conclude the juvenile court properly denied Juan’s motion to continue and he was not prejudiced by his parents’ absence from his contested adjudication hearing, we wish to highlight one fact that does cause us concern. The week before the February 26 hearing, the previously assigned prosecutor informed Juan’s counsel the hearing would not proceed. Then on February 26 at 11:00 a.m., the same prosecutor informed counsel the hearing would proceed that afternoon. Counsel was unable to contact Juan’s parents to notify them of the change. In today’s society where both parents often work, it is not surprising defense counsel could not contact Juan’s parents. Nor can we be sure that had counsel contacted them, they would have been able to attend the hearing based on such short notice.
We caution the prosecutor to not inform opposing counsel a matter will be postponed, and then at the 11th hour inform counsel that matter will in fact proceed. Although there may be an entirely innocent explanation for proceeding with the matter, the perception of the maneuver as a slick practice cannot be ignored.
II. Sufficiency of the evidence
Juan contends insufficient evidence supports his convictions for counts 1 and 3. In a passing comment, he also claims there was no evidence to support his conviction on count 2 and the related enhancements. None of his contentions have merit.
“In reviewing a sufficiency of evidence claim, the reviewing court’s role is a limited one. ‘“The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]”’ [Citations.] [¶] “‘Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]” [Citation.]’ [Citation.]” (People v. Smith (2005) 37 Cal.4th 733, 738-739 (Smith).)
A. Murder and attempted murder
“Murder is the unlawful killing of a human being, . . . with malice aforethought.” (§ 187, subd. (a).) Murder in the first degree is murder that is willful, deliberate, and premeditated. (§ 189.) “‘Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.’” (Smith, supra, 37 Cal.4th at p. 739.)
“[A]n aider and abettor’s guilt ‘is based on a combination of the direct perpetrator’s acts and the aider and abettor’s own acts and own mental state.’ [Citation.] ‘“[O]nce it is proved that ‘the principal has caused an actus reus, the liability of each of the secondary parties should be assessed according to his own mens rea.’”’ [Citation.] Thus, proof of aider and abettor liability requires proof in three distinct areas: (a) the direct perpetrator’s actus reus—a crime committed by the direct perpetrator, (b) the aider and abettor’s mens rea—knowledge of the direct perpetrator’s unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettor’s actus reus—conduct by the aider and abettor that in fact assists the achievement of the crime. [Citation.]” (People v. Perez (2005) 35 Cal.4th 1219, 1225.)
“Mere presence at the scene of a crime is not sufficient to constitute aiding and abetting, nor is the failure to take action to prevent a crime, although these are factors the jury may consider in assessing a defendant’s criminal responsibility. [Citation.] Likewise, knowledge of another’s criminal purpose is not sufficient for aiding and abetting; the defendant must also share that purpose or intend to commit, encourage, or facilitate the commission of the crime. [Citation.] . . . [¶] . . . [¶] A person may aid and abet a criminal offense without having agreed to do so prior to the act. [Citations.] In fact, it is not necessary that the primary actor expressly communicate his criminal purpose to the defendant since that purpose may be apparent from the circumstances. [Citations.] Aiding and abetting may be committed ‘on the spur of the moment,’ that is, as instantaneously as the criminal act itself. [Citations.]” (People v. Nguyen (1993) 21 Cal.App.4th 518, 529-532.)
Juan claims there was insufficient evidence he “shared in the shooter’s specific intent, he knew the full extent of the [shooter’s] purpose, and [he] gave aid or encouragement[.] He portrays himself as an immature 13 year old helplessly caught in a situation where he had no involvement. The evidence offered at the hearing paints a different picture.
During his interview with McLeod, Juan explained that a blue van with five or six Walnut Street gang members stopped and picked him up in Walnut Street territory. Juan told McLeod he had been committing crimes for Walnut Street for one year, and he names several Walnut Street gang members who were his “homeboys.” He knew Bishop Street was a Walnut Street rival, there was a recent dispute between the two gangs, and Walnut Street had guns they used to commit crimes.
Juan’s statements to McLeod demonstrate he knew his Walnut Street gang associates were going to commit a drive-by shooting and he shared in the shooter’s specific intent. Juan stated that when he got into the van, he saw Clumsy “loading a semi-automatic handgun.” Juan told McLeod, “he knew that the group was going to do a drive-by shooting.” He also told McLeod that when Clumsy later told everyone to be quiet, “he specifically knew the group was about to do a drive-by [shooting].” Juan contends that based on these two statements it is unclear when he knew there was going to be a shooting. We do not view this evidence as confusing. Juan’s statements to McLeod evince he knew when he got into the van and later when Clumsy told everyone to be quiet that they were going to commit a drive-by shooting. From Juan’s statements it is clear he knew there was going to be a shooting before the shooting.
Juan’s statements to McLeod also demonstrate he acted to support Walnut Street and his criminal street gang associates, and thereby aided and encouraged the commission of the crime. When McLeod asked Juan what “backing up” a fellow gang member meant, he described it as supporting them “in any way[.]” When McLeod asked Juan what his role was in the shooting, he said it was to “backup” his fellow gang members. The fact he was in the back seat or “ducked” anticipating return fire does not negate the fact he aided and encouraged Walnut Street gang members by supporting them during the commission of the crimes. McLeod testified gang members gain respect within a gang by supporting other gang members during the commission of crimes. He also opined that acting as a “backup” is one of the easiest ways to gain respect because a gang member does not have to be the person who fires the gun.
Juan relies on an exchange during cross-examination when defense counsel asked McLeod what Juan said “backup” meant to claim there was no evidence he was “backing up” fellow Walnut Street gang members. McLeod stated: “Once again, I cannot be specific or cannot specifically quote his words, but he relayed that he had been supporting -- had not been supporting the fellow gang members in this way.” A little later, McLeod testified Juan told him his role in this case was “backup.” Where there is substantial evidence supporting the trier of fact’s judgment, we may not substitute our evaluation of a witness’s credibility for that of the fact finder. (Smith, supra, 37 Cal.4th at pp. 738-742.)
Relying on Mitchell v. Prunty (9th Cir. 1997) 107 F.3d 1337 (Mitchell), and People v. Manriquez (1999) 72 Cal.App.4th 1486 (Manriquez), Juan argues he was convicted based solely on “guilt by association.” Mitchell is inapposite and Manriquez does not provide the sole basis for conviction on an aiding and abetting theory.
Mitchell was overruled on other grounds in Santamaria v. Horsley (9th Cir. 1997) 107 F.3d 1337, 1342.
In Mitchell, supra, 107 F.3d at pages 1338-1339, after defendant and his fellow gang members had a series of confrontations with rival gang members, one of the rival gang members unexpectedly stopped in front of defendant’s building and taunted the members of defendant’s gang, who were standing on a second-floor balcony. One of the gang members shot the taunter. Defendant and his companions then fled in two cars, and one of the cars ran over the shooting victim, inflicting a fatal injury. Defendant did not encourage the shooting by word or gesture and did not encourage the car’s driver to run over the shooting victim. (Id. at pp. 1341-1342.) Here, Juan’s participation was not so passive. As we explain above, Juan associated with Walnut Street gang members and knew there was a recent dispute with Walnut Street’s rival, Bishop Street. When Juan got into the van, he saw Clumsy loading a gun, and he knew they were going to commit a drive-by shooting. By his own admissions, Juan participated in the shooting to support his fellow Walnut Street gang members.
In Manriquez, supra, 72 Cal.App.4th at page 1489, defendant was one of two occupants in a vehicle that drove by a taco stand yelling gang slang and displaying a handgun. The vehicle reappeared minutes later, followed by another vehicle. Shots were fired from both vehicles, and the shots from the second car killed a victim. The shots fired by defendant did not strike anyone. Defendant admitted hanging out with gang members, but denied being a gang member. Defendant also admitted knowing about the gang rivalry involved, and earlier that day, members of the other gang had pelted him with bottles. According to a gang expert, the shooting “fit the classic pattern of a gang-related drive-by shooting.” (Id. at p. 1490.) The court, relying on the evidence of the events leading up to and surrounding the shooting, concluded defendant aided and abetted in the murder. (Id. at p. 1491.) Although there was no evidence Juan yelled anything or possessed a weapon, he did know there was going to be a shooting and he participated in the shooting to support Walnut Street. Juan remained in the van ready to backup Walnut Street “in any way.” There was sufficient evidence from which the trier of fact could convict Juan of first degree murder and attempted murder on an aiding and abetting theory.
B. Street terrorism
Juan makes a conclusory attempt to attack the sufficiency of the evidence concerning the street terrorism substantive offense and enhancements. He cites to section 186.22, subdivision (a), the substantive offense, but not to subdivision (b), the enhancement. In the last sentence of the section he states: “For all the same reasons, the allegation under section 186.22, subdivision (a)[,] and the related enhancements fail.” Juan does not provide any reasoned argument on this point so we need not discuss it any further. (Cal. Rules of Court, rule 8.204(a)(1)(B); People v. Stanley (1995) 10 Cal.4th 764, 793 [“‘every brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration’”].) In any event, based on the entire record, including the circumstances of this case and McLeod’s expert testimony concerning criminal street gangs, we conclude there was sufficient evidence Juan engaged in street terrorism and he committed counts 1 and 3 for the benefit of a criminal street gang.
We note the juvenile court found true beyond a reasonable doubt the street terrorism substantive offense and the street terrorism enhancements as to counts 1 and 2. But the court found not true the special circumstance allegation Juan committed count 1 while he was an active participant in a criminal street gang and to further the activities of a criminal street gang. (§ 190.2, subd. (a)(22) [“The defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of [s]ection 186.22, and the murder was carried out to further the activities of the criminal street gang”].) Based on the record before us, we are unsure how the juvenile court could have found true the street terrorism substantive offense and enhancements, but not the special circumstance. For purposes of this appeal, it is unnecessary to resolve this discrepancy.
III. Commitment
Juan claims the juvenile court abused its discretion in committing him to the DJJ because it was the most restrictive commitment alternative and he would have benefitted from a local residential facility. Relying on the Bosch report and the Safety and Welfare Plan, he also claims that he was immature and vulnerable and the DJJ’s persistent problems with housing juveniles contradicts any notion commitment to the DJJ would be a beneficial rehabilitative experience. As we explain below, we conclude the juvenile court properly committed Juan to the DJJ.
Welfare and Institutions Code section 731, subdivision (a)(4), authorizes a juvenile court to commit a minor to the DJJ. (See Welf. & Inst. Code, § 202, subds. (b), (e)(5).) In determining the proper disposition, the juvenile court must 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.) Other relevant evidence includes the minor’s social history. (Welf. & Inst. Code, § 706.) A juvenile court cannot commit a minor to the DJJ “unless the judge of the court is fully satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefited by the reformatory educational discipline or other treatment provided by the [DJJ].” (Welf. & Inst. Code, § 734.) We review a juvenile court’s commitment decision for an abuse of discretion. (In re Asean D. (1993) 14 Cal.App.4th 467, 473 (Asean D.).)
“[I]t is clear that a commitment to the [DJJ] may be made in the first instance, without previous resort to less restrictive placements. [Citation.] [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. [Citation.]” (Asean D. supra, 14 Cal.App.4th at p. 473; In re Eddie M. (2003) 31 Cal.4th 480, 488.)
As we explain above, the juvenile court considered the probation report, the Bosch report, the Safety and Welfare Plan, and sentencing briefs. The court opined Juan had a strong and supportive family and this fact worked against him because he made poor choices despite having positive role models. The court stated Juan had been disruptive in school, and vandalized school property and personal property at school, and he was expelled. The court also stated Juan had two prior sustained petitions for vandalism and he was twice placed on supervised probation. The court noted those rehabilitative efforts failed. The court said Juan had a history of substance abuse. The court then described in detail the circumstances of the offense and Juan’s admitted gang membership. The court noted Juan had expressed no remorse.
In sentencing Juan, the juvenile court indicated it was not a “happy occasion” to have to sentence a 14 year old. The court found it would be detrimental to Juan and the community if he remained with his parents. The court found Juan had failed to reform and had failed in a county institution. The court also found there were no other reasonable local-level resources that would aid in his rehabilitation. The court indicated that it had considered less restrictive placement, but that has previously been tried and failed. The court committed Juan to the DJJ.
The juvenile court engaged in a comprehensive review of the submitted documents and the circumstances of the case. Although Juan disputes the record supports the court’s statements the shooting was in retaliation for a recent attack against Walnut Street and it did not matter who was shot, these are reasonable inferences that can be drawn from the record before us. The circumstances and gravity of the offenses Juan committed justify commitment to the DJJ. Additionally, Juan’s prior history demonstrated less restrictive alternative would be ineffective. Juan’s previous two attempts at supervised probation failed to reform him. Juan continued to associate with gang members and engage in disruptive and violent behavior despite a loving and supportive family and the benefit of local government resources. Based on the circumstances of this case and Juan’s history, we conclude the court properly committed Juan to the DJJ.
DISPOSITION
The judgment is affirmed.
WE CONCUR: MOORE, J., IKOLA, J.