Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIJ107568. Charles J. Koosed, Judge.
Ann Penners Bergen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Kevin Vienna and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
The juvenile court found that defendant and appellant N.M. (minor) had committed assault with a firearm (Pen. Code, § 245, subd. (a)(2)) for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members (§ 186.22, subd. (b)). Minor was on probation following a prior admission that he possessed a concealable firearm. (§ 12101, subd. (a).) The juvenile court committed minor to the Department of Juvenile Justice (DJJ) for a maximum period of eight years eight months, consisting of the midterm of three years for the assault, five years consecutive for the gang enhancement, and an additional eight months consecutive (one-third the midterm) for the firearm possession. Minor contends the juvenile court abused its discretion because less restrictive alternatives existed and, according to minor, the juvenile court failed to consider the goals of juvenile sentencing. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
BACKGROUND
On April 18, 2009, minor pulled out a handgun and waived it in the direction of a group of partygoers confronting members of his gang. Minor was 17 years old at the time of the offense.
While the present offenses were being adjudicated, the county gang task force conducted a probation compliance search of minor’s residence. They discovered “significant gang related jail letters addressed to minor, ” two cell phones, and gang related attire.
Minor’s disposition hearing was on March 25, 2010. By that time, minor was five months shy of his 19th birthday. The probation department’s dispositional report recommended that minor be placed with DJJ.
At the hearing, the probation officer testified that she was familiar with the county youth offender program (YOP), but did not consider county placement. Minors can stay in YOP until they are 21, and minor was screened and accepted at YOP. YOP and DJJ were similar in their substance abuse counseling, gang intervention, and educational options. However, the probation officer thought DJJ offered better vocational training and offered post-release employment services. The probation officer also thought, but was not certain, that, because of his age, minor would not be kept on probation if he was sent to, and then released from, YOP. Minor had no high school credits, but was supposed to be working on his GED. However, minor and his parents claimed the cost of the GED was prohibitive.
The probation officer also thought that minor had a level of criminal sophistication “that would be better suited for DJJ.” In particular, she noted minor’s attempt to fabricate an alibi; the firearm from the firearm possession offense had the serial number obliterated; minor’s presence in the Riverside turf of his gang even though he lived in Perris; minor’s claim to have attended the party by himself (indicating an attempt to avoid implicating his gang association); and minor’s lack of remorse.
A private investigator, who retired in 1999 from being a Riverside County probation officer for 31 years, testified on behalf of minor. The investigator reviewed two probation reports and met with minor for an hour. Based upon his meeting with minor, the investigator did not think minor was criminally sophisticated, because minor did “not seem to be a very sophisticated young man at all.” The investigator opined that YOP was “tailor-made for somebody like [minor], ” not enough had been done at the county level to warrant sending minor to DJJ, and that if minor failed YOP he could still be placed with DJJ. However, YOP did not exist while the investigator worked for the probation department, the investigator acknowledged current probation officers would possesses more extensive knowledge of YOP, and the investigator did not recognize the name of the DJJ intensive gang-related disaffiliation program. The investigator also agreed with the juvenile court, that age is factored into a placement because “it’s not a good idea necessarily to have 14, 15-year-olds placed with 18 and 19-year-olds.”
At the People’s request, the juvenile court permitted the probation officer assigned to the court to comment without question and answer on the issue of vocational training. She stated, “regarding the vocational programs at YOP, they do offer assistance and training with culinary and landscaping. In other words, they assist the gard[e]ners with mowing the lawn and trimming trees. As with culinary, they help cook food in the facility in the kitchen. [¶] When they transfer down to Twin Pines Ranch, they have vocational programs for fire tech, carpentry, electrician, landscaping as in they actually go off the grounds and learn to be landscapers and as well as culinary where they cater events in the city where they live. However, due to [minor’s] age—they usually transfer from YOP to Twin Pines between the sixth and ninth-month mark. By that time, he will be 19 years old and he will be unable to transition to Twin Pines Ranch, thus the only vocational training that he would receive in a very limited capacity would be culinary and landscaping.”
Counsel for the People then stated she had spoken with defendant’s trial counsel and with the DJJ’s court services liaison, who told her that DJJ was not shutting down, and that DJJ had a program called Impact “that’s a cognitive restructuring. It deals with addiction, life skills, how to become a man, one on one counseling, group counseling, and they have access for one week every two hours or for two hours [sic] and they can ask for additional counseling in addition to the classes that they would be taking... to disassociate themselves from gang life.”
After entertaining arguments from counsel, the juvenile court ruled: “[T]o say that well, he hasn’t gone to a placement so you should let him [go] to a placement I think misses the point. That’s like saying, you now, well, he’s never... been on [deferred entry of judgment] so give him DEJ. [¶] Well, there are some offenses that are so bad and the history is so bad that you don’t get DEJ. I don’t find you to be... suitable. Sometimes the history does point directly to a DJJ commitment. Nowadays I can’t even send a minor to DJJ unless I have found a [Welfare and Institutions Code section 707, subsection (b), ] offense to have been committed... in this case, I did, so it’s one of my options now at this point. [¶]... I indicated that I didn’t think any private placements could take him because of his age. [The probation officer assigned to the court] agreed with that. [¶]... [¶] And so of the possible county placements, I sent it back and had it screened. And as it stands, the YOP folks have accepted him or at least whoever screened him have indicated he’s accepted into that program. I just really hesitate to send him there for a lot of reasons. One is his age. And his age is whatever it is. The case... got older for whatever reason, but the truth is... that when this happened, he is 17, pushing 18 already. And whether or not I would have placed him six months ago or a year ago, I don’t know. Nobody knows the answer to that. [¶] I find this conduct... to be very adult-like, very gang entrenched, extremely dangerous.... [I]t came about a week after I put him on probation for having a loaded gun. My goodness. He is going to kill someone or himself. Let’s not fool ourselves here. [¶] I have no question that his parents love him deeply. I have no question that his parents and him have gone through a horrendous tragedy in their life. That’s not lost on me. But the conduct of this young man is frightening. [¶] Moreover... there was a probation search done as recent as January 2010 wherein they found gang-related jail letters addressed to [minor], [a hat with a symbol of defendant’s gang], two cell phones, [and] a jersey [with a gang related number on it]. So to say that ever since this offense has occurred he has somehow been a model citizen I think is a misstatement. [Minor] has a lot to work on, a drastic life change to work on. [¶] All in all, I think the recommendation is an appropriate one. I think it’s a reasonable one. It’s not one that I enjoy doing. I don’t like sending children to DJJ but, you know, [minor] is not a child anymore, and he’s not engaging in child-like behavior. He completely ignored the rules of this court, the orders of this court. I give him a break. You know, 20 days in juvenile hall for a loaded gun, to me, is a break. And how he respects that and responds to that is he goes to a party with a gun, and with his gang buddies, and threatens to kill everyone. Holy smokes. His disregard for the law is astonishing to me.” The juvenile court then followed the DJJ recommendation but selected the midterm for the assault “for some of the reasons that were argued by” minor’s trial counsel.
After the juvenile court ruled, minor’s trial counsel inquired as to whether a diagnostic was needed before sending minor to DJJ. The juvenile court recited an example where it used a diagnostic, and then denied the request stating, “I’ve thought about this a lot. And given the totality of what we’re dealing with here, this is truly what I think is the best thing for this young man.”
DISCUSSION
Minor contends the juvenile court abused its discretion because less restrictive alternatives existed and, according to minor, the juvenile court failed to consider the goals of juvenile sentencing. Minor further contends that his commitment was arbitrary and, thus, is a deprivation of his rights to due process. We hold that the trial court did not abuse its discretion and, thus, do not address minor’s due process contention.
“We review a [DJJ] commitment decision only for abuse of discretion.” (In re Asean D. (1993) 14 Cal.App.4th 467, 473 [Fourth Dist., Div. Two].) “An appellate court ‘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. [Citations.]’ [Citation.] ‘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....’ [Citation.]” (In re Jose T. (2010) 191 Cal.App.4th 1142, 1147.)
“The purposes of juvenile wardship proceedings are twofold: to treat and rehabilitate the delinquent minor, and to protect the public from criminal conduct. [Citations.] The preservation of the safety and welfare of a state’s citizenry is foremost among its government’s interests, and it is squarely within the police power to seek to rehabilitate those who have committed misdeeds while protecting the populace from further misconduct.” (In re Jose C. (2009) 45 Cal.4th 534, 555.) Accordingly, in determining placement in a juvenile delinquency case, the court focuses on the dual concerns of the best interest of the minor and the need to protect the public. (Welf. & Inst. Code, § 202, subd. (d); In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684.) “[J]uvenile courts are required to consider ‘the circumstances and gravity of the offense committed by the minor, and... the minor’s previous delinquent history.’ [Citations.]” (In re G.C. (2007) 157 Cal.App.4th 405, 409 [Fourth Dist., Div. Two].)
“One of the primary objectives of juvenile court law is rehabilitation, and the statutory scheme contemplates a progressively more restrictive and punitive series of dispositions starting with home placement under supervision, and progressing to foster home placement, placement in a local treatment facility, and finally placement at the DJJ. [Citation.]” (In re M.S. (2009) 174 Cal.App.4th 1241, 1250.) However, nothing bars DJJ placement for “wards who have received no other placement. [Citations.]” (In re Eddie M. (2003) 31 Cal.4th 480, 488.)
Minor is a gang member who communicates with jailed associates and who is willing to brandish firearms during his gang activities. The seriousness of this behavior supports a DJJ commitment to protect the public.
The additional vocational services offered by DJJ over YOP indicate that a DJJ placement is in the best interest of minor. YOP offers substance abuse counseling, gang intervention, and educational options comparable to DJJ but in a less restrictive environment. However, because of minor’s age, a YOP placement would not be able to include the expanded vocational options available in the ranch phase. Thus, a YOP placement would have restricted minor’s vocational training to working the kitchen at the YOP facility, and tending to the landscaping at the YOP facility. Thus, the DJJ commitment was of probable benefit to minor and the less restrictive YOP placement would have been ineffective or inappropriate for preparing minor for gainful employment upon his release.
Accordingly, the juvenile court did not abuse its discretion because the DJJ commitment reflects the dual concerns of the best interest of the minor and the need to protect the public.
Minor contends the juvenile court committed minor to the DJJ solely due to the seriousness of the offenses and the court’s concern about minor being placed with younger attendees of YOP. However, the juvenile court was required to consider “the circumstances and gravity of the offense” by Welfare and Institutions Code section 725.5. The juvenile court did directly inquire of the investigator to have him confirm that age is a factor in placement considerations because “it’s not a good idea necessarily to have 14, 15-year-olds placed with 18 and 19-year-olds.” However, there is nothing inappropriate about considering the age range served by a placement, or the peer group in which a ward would be placed. While minor contends the juvenile court was considering the effect of his placement on other wards, the court was validly considering how the peer group in a placement would affect a minor’s opportunity for rehabilitation. Indeed, the age range served by a placement my affect the services offered. For instance, in this case, minor’s age rendered him ineligible for the ranch phase of a YOP placement. Lastly, “we consider the correctness of the [juvenile] court’s ruling itself, not the correctness of the [juvenile] court’s reasons for reaching its decision. [Citations.]” (People v. Letner & Tobin (2010) 50 Cal.4th 99, 145.) Thus, even assuming such reasoning was improper and was relied upon by the juvenile court, the DJJ commitment itself was not an abuse of discretion.
Minor also contends that the juvenile court’s reference to having given him “a break, ” by previously sending him to juvenile hall for 20 days for the prior firearm possession, indicates a retributive intent. We disagree. The juvenile court was required to consider “ ‘the minor’s previous delinquent history.’ [Citations.]” (In re G.C., supra, 157 Cal.App.4th at p. 409.) More importantly, the ineffectiveness of the prior disposition at rehabilitating minor indicates that a less restrictive alternative was attempted but was unsuccessful, and minor remained a threat to the public. Accordingly, the juvenile court properly considered minor’s prior disposition, and the ineffectiveness of that disposition supported imposition of a more restrictive placement.
DISPOSITION
The judgment is affirmed.
We concur: MILLER J., CODRINGTON J.