Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. DL027722 John C. Gastelum, Judge.
Richard Glen Boire, 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, and Kevin Vienna, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
The juvenile court sustained the district attorney’s Welfare and Institutions Code section 602 petition against 14-year-old A.H. (born in March 1994) after he admitted committing assault (Pen. Code, § 245, subd. (a)(1)) and inflicting great bodily injury (Pen. Code, § 12022.7, subd. (a)). The court committed the minor to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (§§ 1703, subd. (c), 1710, subd. (a) (DJF)), setting the maximum term of confinement at seven years. The minor argues the juvenile court abused its discretion by failing to consider less restrictive sanctions before committing him to the DJF. He also contends the juvenile court failed to tailor his commitment to DJF based on the facts and circumstance of his case, and erred in failing to declare the assault offense a felony or misdemeanor. (§ 702.) The Attorney General concedes the latter point, and we accept the concession. Consequently, the matter is remanded for a section 702 declaration.
All further statutory citations are to the Welfare and Institutions Code unless noted.
Effective July 1, 2005, the Department of Youth Authority (CYA) was 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.) The cases also use the term Division of Juvenile Justice or DJJ.
I
Factual and Procedural Background
In September 2006, the minor participated with other Santa Ana criminal street gang members in the shooting murder of a rival gang member in retaliation for an earlier stabbing. In late April 2008, while proceedings on a section 602 petition for the murder were pending, the minor assaulted another youth at the juvenile hall annex at Theo Lacy jail. According to a report of the incident, the minor and the victim argued over the score of a handball game they were playing when the minor charged the youth and knocked him to the concrete, rendering him semiconscious. The minor jumped on top of the victim and repeatedly punched him in the face, disregarding staff orders to step back. The victim suffered significant injuries and was transported to the hospital in an ambulance.
In August 2008, the juvenile court sustained the allegations of the first petition and found the minor committed second degree murder (Pen. Code, § 187), actively participated in a criminal street gang (Pen. Code, § 186.22, subd. (a)), and vicariously discharged a firearm (Pen. Code, § 12022.53, subds. (d), (e)(1)). In October 2008, the court declared the minor a ward of the court and set the maximum term of confinement at 40 years and eight months to life. Against the probation officer’s recommendation, the court placed the minor on probation on condition he serve 730 days in local custody, with credit for 526 days previously served.
The probation officer reported minor still claimed gang membership at the time she interviewed him for the disposition hearing. He admitted drug addiction (crack cocaine, marijuana, alcohol). Minor’s father reported minor suffered behavioral problems, resisted adult supervision, and had been expelled from school. While in custody, minor had repeatedly violated institutional rules and engaged in gang-related activity. The probation officer stated minor “presented as a troubled young man” and appeared “fully entrenched in the gang culture.” The probation officer noted that given the “extreme gravity of the offense” and gang involvement “it does not appear the minor is a suitable candidate for rehabilitation at the local level. It is felt that a commitment to [DJF] is an appropriate disposition. This type of commitment would address accountability, ensure the safety of the public, as well as meet the rehabilitative needs of the minor.” The probation officer noted DJF had facilities and rehabilitative programs designed to integrate youths such as minor into society and these “longer-term, structured treatment programs... would be much more effective at meeting the minor’s rehabilitative needs.”
Based on the juvenile hall incident, the district attorney in December 2008 filed a second section 602 petition alleging the minor committed felony aggravated assault (Pen. Code, § 245, subd. (a)(1)) and inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)). In January 2009, the minor waived his rights and admitted the allegations. The minor acknowledged he faced seven years of confinement, “no promises” had been made concerning “what the punishment is going to be,” and after the preparation of a probation report, “a judge is going to decide what your punishment should be, whether you’re going home on probation or whether you’re all the way up to seven years in the [DJF].” In February 2009, the court committed the minor to the custody of DJF and set the maximum term of confinement at seven years, as explained more fully below.
II
Discussion
A. The Juvenile Court Did Not Abuse Its Discretion in Committing the Minor to DJF
The minor contends the juvenile court abused its discretion by committing him to DJF in the mistaken belief he had previously failed on probation. The minor emphasizes the assault he committed occurred over six months before the juvenile court placed him on probation for second degree murder. The minor argues the court violated section 726, subdivision (a)(1), which prohibits the removal of a minor unless the minor “has been tried on probation... and failed to reform.” We do not find the contention persuasive.
Our review is limited to whether the juvenile court abused its discretion in committing the minor to DJF. In making this determination, we must draw all reasonable inferences in favor of the juvenile court’s decision. (In re Asean D. (1993) 14 Cal.App.4th 467, 473 (Asean D.).) An abuse of discretion occurs only if the lower court’s decision is arbitrary, capricious or exceeds the bounds of reason. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)
We review the record keeping in mind the purposes of the Juvenile Court Law (§ 200 et seq.), which from its inception have included the goals of rehabilitation, treatment, and guidance for juvenile offenders. “In 1984, the Legislature amended the statement of purpose found in section 202 of the Welfare and Institutions Code. It now recognizes punishment as a rehabilitative tool and emphasizes the protection and safety of the public.” (In re Lorenza M. (1989) 212 Cal.App.3d 49, 57 (Lorenza M.).) Consequently, we now “evaluate the exercise of discretion with punishment and public safety and protection in mind.” (Id. at p. 58; Asean D., supra, 14 Cal.App.4th at p. 473 [“the 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”].)
In making its decision, the juvenile court must consider the minor’s age, the circumstances and gravity of the offenses committed, and the minor’s previous delinquent history. (§ 725.5.) The court may also consider the need to hold the minor accountable for his or her actions (§ 202, subd. (b)) and the need to protect society while attempting to rehabilitate the minor (Lorenza M., supra, 212 Cal.App.3d at pp. 57-58). Although the court must consider less restrictive alternatives to DJF, the court may opt to impose the most restrictive placement before other options have been tried. (In re Eddie M. (2003) 31 Cal.4th 480, 507; Asean D., supra, 14 Cal.App.4th at p. 473.)
Here, the record demonstrates the juvenile court knew the minor had received probation on the first petition for participation in a homicide, and that one of the probation conditions was a 730-day commitment to juvenile hall. The minor’s lawyer emphasized at the hearing the assault occurred before adjudication of the first petition and pointed out the minor had made “tremendous progress” while in local custody after being placed on probation in the earlier case.
In considering and rejecting less restrictive alternatives to DJF, the court stated it had read the probation report and concluded the minor and society would benefit from the rehabilitative programs only available at DJF. In explaining its decision, the court weighed the gravity of the minor’s offenses and the minor’s lack of remorse, observing, “I just don’t see how the local time has been of any benefit.” The court further explained, “I just don’t know that for the benefit and protection of society or even the benefit of the minor that that would be appropriate. It doesn’t seem that works. It’s been tried and it hasn’t worked [out.]” (Italics added.) The minor’s counsel responded, “Well, your honor, he has never been out on probation. He was not on probation prior to the [initial petition]. He’s never been out and given any services by probation.” The court replied, “We’re talking about what he’s done in local time.” Counsel agreed, but explained the minor had spent most of his time in custody before the disposition on the first petition, and after the filing of the second petition, in a lock-down unit with “hardly any interaction with anyone other than the volunteers and staff.”
The above colloquy between the court and the minor’s counsel demonstrates the court considered less restrictive placements. The minor does not dispute this, but instead challenges the sufficiency of the evidence to support the juvenile court’s finding under section 726 that he had failed to reform while on probation. The court also found “continued custody with parents would be detrimental to the minor,” ordered “custody be taken from parents,” and stated the court found “minor has been tried and failed in county instituions [sic] and there are no further county resources that will add to his rehabilitation.”
Section 726 provides, “(a) In all cases in which a minor is adjudged a ward or dependent child of the court, the court may limit the control to be exercised over the ward or dependent child by any parent or guardian and shall in its order, clearly and specifically set forth all those limitations, but no ward or dependent child 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.” (Italics added.)
To remove a minor from the physical custody of his parents, the juvenile court need only find one of the statutory factors listed in section 726. (In re Nathan W. (1988) 205 Cal.App.3d 3d 1446, 1499.) The court’s finding under section 726 was superfluous, however, because the minor already had been removed from his parents’ physical custody at the disposition hearing on the first petition. The minor does not argue the court erred in removing him from his parents’ physical custody, and the record demonstrates the minor’s parents had failed or neglected to provide proper “maintenance, training, and education for the minor” (§ 726, subd. (a)(1)) and “the welfare of the minor require[d] that custody be taken from” his parents. (§ 726, subd. (a)(3).) More importantly, it is simply not true, as minor claims, that the court may not commit a minor to DJF without a finding the minor has been tried on probation and failed to reform. As the cases cited above provide, the juvenile court may commit a minor to DJF in the first instance without attempting lesser alternatives, including probation.
The cases the minor relies on do not support his claim the law required the juvenile court to first try the minor on probation before committing him to DJF. The Supreme Court in In re Aline D. (1975) 14 Cal.3d 557, held that a DJF commitment should be made only as a “last resort” (id. at p. 564), but that case predated the 1984 legislative amendments to juvenile law that recognized punishment as a rehabilitative tool and shifted the law’s emphasis from less restrictive placements to the protection and safety of the public (In re Gerardo B. (1989) 207 Cal.App.3d 1252, 1258 [“shift in the law to include punishment and protection of society as valid considerations expands the group of people who may be appropriately committed to” DJF]; In re Michael D. (1987) 188 Cal.App.3d 1392, 1396). In re Teofilio A. (1989) 210 Cal.App.3d 571, reversed a DJF commitment because no evidence showed whether the juvenile court considered less restrictive alternatives. (Id. at p. 577.) As noted above, here the court considered but rejected less restrictive alternatives, finding the approach had been tried but had not worked out.
The evidence amply supports the juvenile court’s commitment order. The court made the required finding the minor’s “mental and physical condition and qualifications... render[ed] it probable that he w[ould] be benefited by the reformatory educational discipline or other treatment provided by the Youth Authority.” (§ 734.) The court found a local disposition would not benefit the minor or protect society. The minor’s unprovoked violent assault, his lack of remorse or empathy for the victim, his past participation in violence, and his persistent gang-related behavior support the court’s rejection of less restrictive placements or probation. (See Asean D., supra, 14 Cal.App.4th at p. 473 [DJF commitment upheld where minor’s refusal to take responsibility for the crimes “signaled that he constituted a serious danger to the public unless securely confined”]; In re Michael D., supra, 188 Cal.App.3d at p. 1397 [minor’s “unrepentant and cavalier attitude” regarding his offense supported DJF commitment order].) Based on this record, the court reasonably could conclude DJF’s rehabilitative programs offered the best opportunity to benefit the minor and protect society. We discern no error.
B. The Juvenile Court Failed to Expressly Declare the Offense a Misdemeanor or Felony
The minor contends remand is required because the juvenile court failed to classify the aggravated assault offense as either a felony or misdemeanor. The Attorney General concedes the issue.
Section 702 provides that, “If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.” Thus, the court must “expressly declare on the record” that it has considered whether the offense is a felony or misdemeanor and “state its determination....” (Cal. Rules of Court, rule 5.780(e)(5); see also rules 5.790(a), 5.795(a); In re Manzy W. (1997) 14 Cal.4th 1199 [express declaration requirement serves to ensure the juvenile court is aware of, and exercises, its discretion to consider sentencing minor as a misdemeanant].) “This provision requires strict compliance.” (In re Ramon M. (2009) 178 Cal.App.4th 665, 675.) A minute order from the jurisdiction hearing reflects the court found the “matter to be a felony.” But the juvenile court must make the required declaration on the record at either the jurisdiction or disposition hearing, and remand is required unless the record as a whole establishes the juvenile court was aware of its discretion. (In re Manzy W., supra, at p. 1209.) The Attorney General concedes the record does not establish the juvenile court knew it had the discretion to declare the minor’s offense a misdemeanor. We accept the concession and remand the matter to the juvenile court for the required determination.
C. The Record Does Not Affirmatively Show the Juvenile Court Failed to Consider the Facts and Circumstances of Minor’s Case When Setting the Maximum Period of Confinement
Finally, the minor contends the juvenile court failed to consider the facts and circumstances of his case in setting his maximum period of confinement pursuant to section 731, subdivision (c). We disagree.
Section 731 limits the potential maximum confinement period for a minor committed to DJF. As the Supreme Court recently explained, “Section 731 sets two ceilings on the period of physical confinement to be imposed. The statute permits the juvenile court in its discretion to impose either the equivalent of the ‘maximum period of imprisonment that could be imposed upon an adult convicted of the offense or offenses’ committed by the juvenile (§ 731, subd. (c)) or some lesser period based on the ‘facts and circumstances of the matter or matters that brought or continued’ the juvenile under the court’s jurisdiction.” (In re Julian R. (2009) 47 Cal.4th 487, 498 (Julian R.).) Thus, in considering the facts and circumstances of a minor’s case, a juvenile court could set the maximum period of physical confinement at the maximum term for an adult, or impose a lower term not less than the minimum adult term. (Id. at p. 499; In re Joseph M. (2007) 150 Cal.App.4th 889, 896; In re Carlos E. (2005) 127 Cal.App.4th 1529, 1542.) Section 731 does not require the juvenile court to orally pronounce the juvenile’s maximum period of confinement. (Julian R., at p. 497.)
The minor argues the “juvenile court limited its focus during the dispositional hearing to whether [minor] should be continued on probation (with additional time added to the juvenile hall commitment), or whether [he] should be sent to the DJ[F]. Once the juvenile court determined that it was committing [him] to DJ[F], the record indicates that the court simply imposed the maximum term of confinement without regard to the facts and circumstances of [minor’s] offense. Indeed, there is no indication that the juvenile court was even aware of its duty under section 731....”
Here, the juvenile court asked the deputy district attorney if he had a recommendation on the maximum period of confinement, “or is it just the maximum period served.” The deputy responded the DJF “set their own parameters.” The probation officer interjected “we do need to set a maximum term,” noted the minor’s maximum term on the first petition, and then suggested imposing a term of one-third the maximum seven-year term. After discussing an issue concerning the minor’s first petition, the court announced it would commit the minor for two years and four months, one-third of the seven-year maximum. When the deputy district attorney stated he did not understand why the court would impose a one-third term, the court responded, “I think I need to give him the seven years parole consideration date.” The deputy district attorney replied, “Yeah. His maximum exposure is seven years.” The court then struck “the earlier order. The maximum term commitment is seven years but he has a parole consideration date out there for one-third of that.” The deputy district attorney stated, “Yeah. That’s a [DJF] thing.” The court replied, “Correct,” and the deputy district attorney stated, “But he’s going up on his 245 for the maximum exposure of seven years.” The court stated, “Yes. Thank you for helping me with that.”
The court’s reference to parole in this context may reflect a misunderstanding of juvenile court law. In exercising discretion whether to set the minor’s theoretical maximum term of physical confinement at less than the maximum term of imprisonment, the juvenile court does not follow the procedures applicable to adult sentencing. The minor is committed to DJF for an indeterminate term and the actual length of stay is an administrative decision. (In re Christian G. (2007) 153 Cal.App.4th 708, 714-715; In re Carlos E., supra, 127 Cal.App.4th at p. 1542.)
We disagree with the minor the record affirmatively reflects the juvenile court was unaware of its discretion to impose a term less than the maximum term of confinement based on the facts and circumstances of the minor’s offenses. While the court’s colloquy with counsel reflects some confusion about the appropriate term of commitment, it does not provide affirmative evidence the court was ignorant of its duties under section 731 and therefore failed to consider the facts and circumstances of the minor’s case. Indeed, if anything can be derived from the exchange quoted above, it is that the trial court considered the circumstances of the case and determined the maximum sentence was appropriate, but was confused about how to impose that maximum sentence. In any event, we employ the cardinal principles of appellate review that a lower court’s judgment is presumed correct, all presumptions are indulged to support it on matters as to which the record is silent, and the appellant must affirmatively demonstrate error. (Julian R., supra, 47 Cal.4th at pp. 498-499.) The juvenile court is presumed to have been aware of and followed the applicable law. (Id. at p. 499; People v. Stowell (2003) 31 Cal.4th 1107, 1114.) Thus, “when ‘a statement of reasons is not required and the record is silent, a reviewing court will presume the trial court had a proper basis for a particular finding or order.’” (Julian R., supra, at p. 499; Evid. Code, § 664 [presumption that official duty has been performed].) So it is here. The minor’s claim fails.
As of January 1, 2009, the Judicial Council’s commitment form requires the juvenile court both to state the duration of the maximum period of confinement and to acknowledge that it has “considered the individual facts and circumstances of the case in determining the maximum period of confinement.” (Judicial Council Forms, form JV-732, [as rev. Jan. 1, 2009,] Commitment to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice, item 8, p. 2.)
III
Disposition
The matter is remanded and the juvenile court is directed to state on the record in compliance with section 702 whether it intended to treat the assault offense as a felony or misdemeanor. If the juvenile court declares the offense to be a misdemeanor, it must hold a new disposition hearing.
WE CONCUR: BEDSWORTH, ACTING P. J.IKOLA, J.