Opinion
C088254
10-03-2019
In re E.O., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. E.O., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 18DQ002087)
Minor E.O.-C. appeals from a disposition order committing him to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (the division) following his admission that he committed second degree robbery (Pen. Code, § 211) with a special allegation that he personally used a firearm (Pen. Code, § 12022.53, subd. (b)), an offense qualifying him for such commitment. (See Welf. & Inst. Code, §§ 731, 800.) We understand his argument to be that the juvenile court abused its discretion in ordering his commitment to the division because less restrictive placement options were available and appropriate. We shall order the correction of an omission in the commitment order and otherwise affirm the judgment.
I. BACKGROUND
We derive much of this background from the disposition report preceding the minor's commitment to the division that served as the stipulated factual basis for his admission to second degree robbery with a personal use of a firearm enhancement. A. The Offense
The minor and two other males approached the victim on the street and stated, " 'give me what you got.' " The minor brandished a loaded revolver and one of his companions had a Glock-style handgun. The minor struck the victim in the head with his handgun and demanded the victim's shoes. The group also demanded his wallet and phone. After taking the victim's property, the group left on foot, and the victim obtained help from some bystanders, using one of their phones to call 911. The minor and his co-defendant were later detained and authorities recovered the victim's cell phone and bank card from them. The third individual involved was never identified, and the balance of the victim's property was not recovered. B. The Probation Disposition Report and Recommendation
Items not recovered included the victim's wallet, watch, shoes, and cash for which the court ultimately ordered $285 in victim restitution.
The minor told the probation officer that he committed the robbery to make money, which he learned to do because he grew up in a tough area and did what he had to to survive. If he could do it again, he would have run the opposite direction from his friend so that he could take the rap alone. He denied gang involvement, but probation found him in several pictures on social media posing with gang members and guns. The minor used marijuana daily and consumed alcohol most weekends. He had used both marijuana and alcohol on the day of the offense. The minor conceded "he would not be able to follow the conditions of probation supervision."
Prior to his arrest, the minor lived alone with his mother, who worked long hours at a restaurant job. He admitted his mother did not supervise him and his mother complained that the minor would not listen to her, nor could she otherwise change his behavior. The minor's mother wanted him to return to school and said his "friends have had a major impact on him not going to school," and she wanted them to stop coming to their home. She expressed relief that he was off the streets and doing well in school. The report also noted that while the minor was in the twelfth grade, he was severely credit deficient and had not attended school for the six months preceding his arrest.
While in juvenile hall for six weeks before the disposition hearing, the minor had suffered four serious rule violations and 13 minor rule infractions. The serious rule violations were "for being defiant and volatile towards staff which caused him to have to be physically restrained, for threats toward staff, and twice for creating an unsafe environment by challenging another minor to fight. [¶] According to juvenile hall staff, the minor has generally demonstrated appropriate social skills and hygiene, and responds favorably to counseling." Juvenile hall staff also noted the minor's "tremendous effort" in school and that he had "been a joy in class from day one."
The probation department (the department) considered several potential placements for the minor's rehabilitation. It first considered a placement in a group or foster home for which he was eligible, but the department determined such placement would be inappropriate given the seriousness of the minor's offense. The department also considered a placement at Camp Condor for which the minor was also eligible, ultimately concluding that this placement was also inappropriate because the serious nature of the minor's offense (1) made him ineligible for temporary releases due to the risk to public safety and (2) "would make it difficult to place him in a less restrictive environment such as the welding program, and outings for Community Restoration Projects." As a result, "the Camp Condor Program would be of limited and marginal value to the minor's rehabilitation."
Ultimately, the department concluded that a division placement was needed because of the minor's need for a "structured, secure and restrictive placement beyond the realm of resources locally available where he can obtain an education and life skills while keeping the community safe." The minor would also receive "counseling to address his issues regarding his violent conduct, behavior modification, victim awareness classes, gang awareness classes, and drug and alcohol counseling." Finally, the report concluded that the minor would benefit from the added period of supervision that he would receive following his release from the division. C. The Disposition Hearing and Commitment to the Division
Specific rehabilitation programs the minor could participate in, if it were determined that he would benefit from them, were described therein.
At the outset of the hearing, the court indicated its inclination to follow the department's recommendation. In response, the minor's attorney argued several factors weighed against a commitment to the division: (1) this was the minor's first offense, and he had not been afforded any other rehabilitative efforts; (2) he had not had the benefit of supervision because his father was not in his life and his mother worked long hours late into the night; (3) he had a sister who was 27 and had not been in trouble; (4) the minor used marijuana, but not hard drugs; (5) the crime was unsophisticated, and the victim had no visible marks; (6) the minor's co-defendant accepted some responsibility for the crime; (7) the minor had just turned 17, leaving time for rehabilitative efforts; and (8) the minor was smart. His attorney concluded "he's just been an unsupervised young man who went along with his environment and his friends" who would benefit greatly from Camp Condor as demonstrated by his behavior in school while in juvenile hall.
The People disagreed, arguing the seriousness of the offense wherein the minor robbed the victim at gunpoint and then pistol-whipped him with a loaded firearm. The disposition report clearly showed the minor had association with a gang and the division had the better gang programming. The Camp Condor placement was designed to transition a minor back home, but given both the minor and mother's admission that she cannot supervise or control the minor, this placement would be inappropriate. Further, the 13 minor and four major rule infractions in less than six weeks in juvenile hall, when combined with his stated need to rob to make money, further demonstrated that allowing him to participate in a program that contemplates temporary releases within 90 days would be inappropriate. Rather, the minor needed the long-term structure and stability that would be provided by the division, which also had better programming to address the minor's needs. The division was the least restrictive placement available to meet his needs.
Ultimately, the court concurred with the People and department's recommendation, and committed the minor to the division for the maximum of 15 years. In so doing, the court found, "it is in the best interest of the minor to be committed to the Department of Juvenile Justice, inasmuch as he has—they have the programs and capacity to deal with an individual who was involved in behavior that lead him to be before the court." The court further found "the mental and physical conditions of the ward are of such to render it probable that he will be benefited by the Division of Juvenile Justice." The minor was given credit for 67 days in custody. The court awarded $285 in victim restitution and imposed a $100 restitution fine and $10 collection fee. The division was directed to collect the full $395. The commitment order does not include the $10 collection fee.
II. DISCUSSION
The minor challenges the juvenile court's commitment order, arguing the court either misspoke or was confused concerning counsel's arguments that Camp Condor should be tried first, that substantial evidence supported less restrictive alternatives, and that the decision to commit him to the division was "excessively harsh." We are not persuaded that the juvenile court abused its discretion.
" 'The appellate court reviews a commitment decision for abuse of discretion, indulging all reasonable inferences to support the juvenile court's decision.' [Citation.] 'A [division] commitment is not an abuse of discretion where the evidence demonstrates a probable benefit to the minor from the commitment and less restrictive alternatives would be ineffective or inappropriate.' (In re M.S. (2009) 174 Cal.App.4th 1241, 1250-1251 [substantial evidence supported court's reason for finding less restrictive alternative would be inadequate or ineffective].) 'Although the [division] is normally a placement of last resort, there is no absolute rule that a [division] commitment cannot be ordered unless less restrictive placements have been attempted.' [Citation.] [¶] We examine the evidence in light of the purposes of the juvenile court law. (In re Michael R. (1977) 73 Cal.App.3d 327, 333; In re Carlos E. (2005) 127 Cal.App.4th 1529, 1542 [purposes of the juvenile system include 'the protection of the public as well as the rehabilitation of the minor'].)" (In re A.R. (2018) 24 Cal.App.5th 1076, 1080-1081.)
The minor selectively focuses on his favorable juvenile hall school report, and the juvenile court's initial wrestling with the choice between Camp Condor or the division, while ignoring the court's next statements concerning the department's conclusion that the Camp Condor placement was inappropriate given the seriousness of the offense, which made a less restrictive placement difficult. The juvenile court was also troubled by the minor's major rule infractions, ultimately choosing to commit the minor to the division.
The seriousness of the minor's offense, his lack of remorse, his mother's inability to control his behavior, the minor's own admission that he would not comply with probation orders, and his serious rule infractions threatening violence while in juvenile hall all supported the department's reasoned rejection of the Camp Condor placement, which contemplated unsupervised releases within 90 days and an ultimate goal of transitioning the minor back to his mother. Given this, the juvenile court did not abuse its discretion in accepting the department's recommendation that a division commitment was the least restrictive available placement that would meet the minor's rehabilitative needs while protecting the community and that he would benefit from that commitment. (Welf. & Inst. Code, § 734.) This is substantial evidence supporting these determinations despite this being the minor's first offense. (In re A.R., supra, 24 Cal.App.5th at p. 1080; see also In re Joseph H. (2015) 237 Cal.App.4th 517, 543-545; In re M.S., supra, 174 Cal.App.4th at pp. 1250-1251.)
We disagree with the minor's suggestion that his admission to the commission of the offense showed remorse. The minor clearly told the probation officer that if he had to do it over again, he would have run in the opposite direction from his friend so that he could take the rap alone. --------
III. DISPOSITION
The order of commitment shall be modified to reflect the $10 collection fee imposed by the juvenile court such that the division will collect $395, not $385. This amended order shall be forwarded to the division. The judgement is otherwise affirmed.
/S/_________
RENNER, J. We concur: /S/_________
BLEASE, Acting P. J. /S/_________
MAURO, J.