Opinion
A130439
10-17-2011
In re L.V., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. L.V., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County Super. Ct. No. 33675J)
L.V. (Minor) appeals from a disposition order committing him to the Division of Juvenile Justice (DJJ). He contends the trial court abused its discretion and that there is no evidence he would benefit from the commitment. We affirm.
I. BACKGROUND
A. The Underlying Offense
The District Attorney filed a juvenile wardship petition (Welf. & Inst. Code, § 602, subd. (a)) on August 11, 2009, alleging in count one that Minor had committed assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)); and in count two that he had actively participated in a criminal street gang (Pen. Code, § 186.22, subd. (a)). Count one included allegations that the assault was committed for the benefit of a criminal street gang with the intent to promote criminal conduct by gang members (Pen. Code, § 186.22, subd, (b)(1)(C)) and that Minor personally inflicted great bodily injury upon the victim (Pen. Code, §§ 12022.7, subd. (a) & 1192.7, subd. (c)(8)). Minor admitted counts one and two and the great bodily injury allegation, and the gang enhancement was dismissed.
According to the probation report, Minor and four other males approached the victim of the assault at a taco truck, and asked him if he "banged." The victim denied being in a gang, and Minor and his companions knocked him to the ground, kicked him, and punched him in the head, back, and shoulders. The victim was unconscious for approximately two minutes. When sheriff's deputies saw him, he was bleeding profusely from his nose, and his eye and jaw were swollen and bruised. He was unable to remember his last name or his address. He suffered a broken nose that required stitches, and reported that he was left with a scar on his nose.
Minor and his companions appeared to a witness to be Sureño gang members; another witness reported they were " 'throwing gang signs.' " The victim was wearing a red shirt and red shoes, and reported that one of the attackers confronted him about his red clothing.
After being arrested, Minor admitted he and two other " 'Mexican nationals' " had had an altercation with the victim and the victim's companion, who appeared to be a Norteno. He said he had been extremely intoxicated at the time and that he probably would not have fought if he had been sober. Minor was 17 years old at the time of the incident.
B. Minor's Background
In 2002, Minor had been referred to Sonoma Valley Youth and Family Services due to his involvement in a battery. He successfully completed the program. He was again cited for battery in 2006, but was ineligible for Sonoma Valley Youth and Family Services' programs because of his history of fighting and gang involvement. He was sent to live with his father in Sacramento County as a dependent pursuant to section 300. In 2007, after he returned to live with his mother in Sonoma, he was arrested for fighting in school and declared a ward of the court. He completed the Outward Bound Wilderness Program, but in 2008 was detained in juvenile hall as a result of his involvement in a gang related battery. He was sent to live with his aunt in Arizona. In 2009, all proceedings in the earlier juvenile matters were dismissed, and he returned to live with his mother.
Minor acknowledged that he had been involved in Sureño street gangs at various times. When he was 12 or 13 years old, he was "jumped in" to the PVLS (Puro Vatos Locos Sureños) as one of its original members. PVLS dispersed after a year, and he was jumped in to BBH (Brown By Honor) when he was 14 years old. The gang dissolved shortly thereafter. Minor started a gang called CVG (Central Vario Gang), but it fell apart after a couple of months. He had two gang-related tattoos, and had been shot in a gang-related incident. He denied any recent gang involvement and said he had been "jumped out" of the Sureño Criminal Street Gang on three occasions. His claim was substantiated by Juvenile Hall incident reports, which indicated he had been assaulted by Sureño residents for his " 'drop out status.' "
Minor said he used alcohol infrequently, and that he had used marijuana in the past. He graduated high school while in juvenile hall in September 2009.
C. Recommendations and Orders
The Probation Department noted that Minor was not eligible for probation camp or suitable placement services because he had turned 18 and had graduated from high school. The Department recommended that Minor be committed to juvenile hall for eight months and participate in services through California Youth Outreach when released. It stated that the Departmental Screening Committee "did not agree the minor was suitable for commitment to the Division of Juvenile Justice, given his limited criminal history and the circumstances related to the instant offense," and characterized its recommendation as giving Minor "one last opportunity to change his behavior while being served through Juvenile Court." The juvenile court placed Minor on probation and ordered him to serve 270 to 340 days in juvenile hall. Among the conditions of probation were the requirements that he obey all laws and that he not use or possess any intoxicating substances.
In January 2010, the juvenile court granted Minor's request for early release from juvenile hall to allow him to attend junior college. In doing so, the court stated, "Right now we have our hooks into [Minor], and I don't intend to let those go. And it will be very much a zero tolerance. So that means if you hang out with any of the old friends, wear any of the old gang colors, engage in any of the old gang behaviors, then I expect probation to have you back in the hall and in front of me in very short order. And then what you've told me is, 'You know what, Judge? I can't make it on the outside. I need to be locked up, because that's the only place I do well.' And I don't want to see that." The court also warned Minor that based on his offense, the court could keep him "in a secured, locked facility" for six years and approximately five months, and reiterated the conditions of his probation.
D. Probation Violation and Commitment to DJJ
The Department filed a notice of probation violation on September 8, 2010, alleging Minor had tested positive for cocaine, and recommending that he be ordered to serve 180 days in any penal institution. Minor admitted the probation violation. According to the supplemental disposition report prepared by the Department, Minor had also had three positive marijuana tests since his release from juvenile hall. Minor had said that the cocaine use was " 'no big deal,' " and that he had used cocaine only once, on his birthday. He also acknowledged having had approximately six beers on his birthday. The report stated that after being released from juvenile hall, Minor had enrolled in general education courses at a junior college, but had stopped attending classes after about a month in order to seek employment. Based on "the severity of the initial offense, the minor's present violation, and his lack of follow through with his educational plan," the Department recommended Minor serve six months to one year in a penal institution.
On October 4, 2010, the juvenile court retained Minor as a ward of the court and committed him to DJJ for two years. In doing so, the court stated its belief despite the Department's recommendation, that "the appropriate disposition is the Division of Juvenile Justice. I believe we have exhausted what we can do locally." The court found "that the previous disposition has not been effective in the rehabilitation of the minor and . . . that the welfare of the minor requires that custody be taken from the minor's parents," and that "[t]he mental and physical condition and qualifications of this youth render it probable that he will benefit from the reformatory discipline or other treatment provided by the California Division of Juvenile Justice."
II. DISCUSSION
Minor contends the juvenile court abused its discretion in ordering him committed to the DJJ. According to Minor, the record is devoid of evidence that he would receive probable benefit from a DJJ commitment, which served only to punish him. He argues that his performance on probation showed that he was no longer involved in gangs and had not committed any further violent offenses, and that there was no evidence he posed a danger to the community.
"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.] Although the DJJ is normally a placement of last resort, there is no absolute rule that a DJJ commitment cannot be ordered unless less restrictive placements have been attempted." (In re M.S. (2009) 174 Cal.App.4th 1241, 1250; see also In re Asean D. (1993) 14 Cal.App.4th 467, 473.)
"When determining the appropriate disposition in a delinquency proceeding, the juvenile courts are required to consider '(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.' [Citations.] Additionally, 'there must be evidence in the record demonstrating both a probable benefit to the minor by a [DJJ] commitment and the inappropriateness or ineffectiveness of less restrictive alternatives.' [Citation.] 'A juvenile court's commitment order may be reversed on appeal only upon a showing the court abused its discretion. [Citation.]' [Citation.]" (In re Jonathan T. (2008) 166 Cal.App.4th 474, 485-485 (Jonathan T.); see also Welf. & Inst. Code, § 734.) The court need not "find exactly how a minor will benefit from being committed to DJJ. The court is only required to find if it is probable a minor will benefit from being committed . . . ." (Jonathan T., supra, 166 Cal.App.4th at p. 486.)
The record supports the juvenile court's conclusion that DJJ commitment was appropriate. Minor was 19 years old at the time of the commitment, and it appears he was no longer eligible for probation camp or other placement services. After being granted early release from Juvenile Hall to continue his education, Minor not only stopped taking his classes, but violated his conditions of probation by using drugs on a number of occasions. The juvenile court had warned Minor when releasing him from juvenile hall that the release was "zero tolerance." Based on Minor's age, the violence of the original offense, the fact that the original offense was committed while Minor was intoxicated, and Minor's violation of the probation condition prohibiting him from using intoxicating substances, the juvenile court could reasonably conclude that the services available locally would not be effective and that Minor would benefit from the structured setting and treatment available at DJJ. (See Jonathan T., supra, 166 Cal.App.4th at p. 486.) We see no abuse of discretion in the court's decision to commit him to the DJJ.
III. DISPOSITION
The order appealed from is affirmed.
RIVERA, J. We concur: RUVOLO, P. J. REARDON, J.