Opinion
NOT TO BE PUBLISHED
Napa County Super. Ct. No. JV14933
Richman, J.
The juvenile court in Napa County committed appellant Andrew C.—who had turned eighteen years old just one month earlier—to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF) for a maximum time of confinement of six years, four months. Andrew appeals, claiming the trial court abused its discretion in (1) committing him to the DJF without first considering less restrictive alternatives, and (2) selecting the aggravated term on a robbery charge. We disagree and affirm.
Prior to July 1, 2005, the DJF was known as the California Youth Authority, or CYA. (Welf. & Inst. Code, § 1703, subd. (c); Gov. Code, §§ 12838, 12838.5.)
BACKGROUND
A. Prior Offenses
Andrew’s involvement with the juvenile justice system began on October 7, 2003, when the District Attorney of Napa County filed a section 602 petition alleging that Andrew, who had turned 13 years old on June 17, 2003, committed two counts of felony first degree burglary (Pen. Code, § 459); one count of felony receiving stolen property (Pen. Code, § 496, subd. (a)); one count of misdemeanor battery (Pen. Code, § 242); and one count of misdemeanor sexual battery (Pen. Code, § 243.4, subd. (d)(1)). The petition stemmed from a series of incidents that occurred in August and October 2003. In the first, Andrew and three companions entered a home through a window and stole a video game player. Approximately two months later, Andrew entered a residential garage and stole a bicycle. The day after committing that burglary, Andrew grabbed the buttocks of a female student at school. When the victim tried to kick him in return, Andrew grabbed her leg, causing her to fall.
The initial section 602 petition identifies Andrew’s date of birth as September 17, 1990. All subsequent documents list June 17, 1990, which appears to be the correct date.
At a jurisdictional hearing on October 20, 2003, Andrew admitted one felony count of first degree burglary and one misdemeanor count of sexual battery, and the remaining counts were dismissed. Andrew was declared a ward of the juvenile court and placed in the home of his mother on formal supervision.
On January 18, 2004, Andrew was arrested for shoplifting. A supplemental section 602 petition was filed, charging him with one count of petty theft. (Pen. Code, § 484, subd. (a).) After being counseled and reprimanded, Andrew was released on electronic monitoring.
Less than a month later, Andrew was detained by a police officer investigating a report of firecrackers being lit on a school campus. A search of Andrew’s backpack uncovered a cell phone belonging to the Napa Valley Unified School District. Andrew’s brother claimed to have taken the phone from the principal’s office and given it to Andrew. The supplemental petition was amended to add one count of receiving stolen property (Pen. Code, § 496, subd. (a)), and Andrew was detained at juvenile hall.
At a February 9, 2004 jurisdictional hearing, Andrew admitted the charge of receiving stolen property, and the petty theft charge was dismissed. Following the recommendation of probation, the court ordered Andrew to serve 15 days in juvenile hall followed by release to his mother subject to the standard terms of probation.
On May 16, 2004, Andrew was again arrested for residential burglary, this time caught in the act by the homeowner who returned while Andrew and a friend were in his home. A supplemental section 602 petition was filed, alleging an additional count of felony first degree residential burglary. (Pen. Code, § 459.) The petition also alleged a violation of probation stemming from Andrew’s violation of curfew and his failure to follow school rules and maintain contact with his probation officer.
A May 19, 2004 detention report described other problems Andrew had experienced since his February detention. In April, he had been suspended from school for throwing a water bottle at one student and “clotheslin[ing]” another student during a game of touch football. He was counseled and reprimanded with three days in juvenile hall as a consequence. Andrew was having other behavioral problems at school as well, frequently receiving demerits and detention for misconduct. The probation officer also noted that on April 20, Andrew left home without his mother’s permission, staying away overnight and prompting his mother to file a runaway report. The report recommended that Andrew be detained at juvenile hall, a recommendation the court adopted at a May 19, 2004 detention hearing.
At a May 28, 2004 jurisdictional hearing, Andrew admitted the burglary count and the violation of probation, and the court referred the matter to probation for a disposition report. In the resulting report, the probation officer noted that for the 2003 2004 school year, Andrew had 49 discipline actions. He had also received “F’s” in all subjects except for one; in that one, he received a “D-.” The report also noted repeated use of marijuana and alcohol. After summarizing Andrew’s recent history of charges and behavioral problems, and his failure to comply with the terms of his probation, the probation officer concluded Andrew was “clearly in need of a serious intercession, which will help him work on self-image, family dysfunction, attitude and behavior, values and problem solving skills” and recommended a residential treatment program.
At a June 11, 2004 dispositional hearing, the juvenile court adopted the probation department’s recommendations, and on June 28, 2004, Andrew was transferred to Telos Youth Outpost.
A November 15, 2004 pre-permanency status report informed the court that Andrew’s performance in the program had been unsatisfactory. According to the report, Andrew had been written up in seven incident reports for misconduct such as fighting at school, theft, possession of contraband, and sexual misbehavior. He had also committed several program infractions, including undermining other residents, being rude, not following directions, lying, and engaging in horseplay. The report concluded that in the five months that Andrew had been in the program, he had “made minimal progress in his treatment and academic needs.” Despite this, he was benefitting “from the highly structured and well-supervised environment,” and his placement in the program was continued.
On November 18, 2004, Andrew was terminated from Telos Youth Outpost. As described in the probation officer’s November 22, 2004 detention report, “On October 12, 2004, the minor was cited by the El Dorado County Sheriff’s Office for assaulting a minor at his school. The minor was suspended from school for four days. On November 11, 2004, the [minor] stole a school project from another student and turned it in as his own work at school.” Andrew was arrested and transported to juvenile hall, where he remained until transferred to Walden House, another residential treatment program, on December 20, 2004.
Andrew’s conduct was much improved at Walden House. He also began to re establish a relationship with his father, with whom he had had no contact since he was five years old, with the hope that he could be placed with his father after completion of the Walden House program. On January 14, 2006, Andrew completed his program at Walden House and was placed in the home of his father. The matter was then transferred to Sonoma County, the county of Andrew’s father’s residence.
Details in the record are sparse, but it appears that Andrew’s mother, while loving, had a history of substance abuse and a lengthy criminal record, and lacked certain parenting skills. Indeed, Andrew’s brother had been placed in a group home, and his half-sister lived with her biological father.
Andrew had a difficult time adjusting to placement at his father’s house, however, and on May 30, 2006, a notice of probation violation was filed. It alleged four probation violations, that Andrew had: (1) been disrespectful and verbally abusive to his father, and had left his father’s home after a near physical confrontation, not returning until the following day; (2) behavioral and attendance issues at school; (3) violated curfew multiple nights by staying out late or not coming home at all; and (4) failed to enroll in programs and counseling as required by his probation officer. An amended notice later added a fifth probation violation: that Andrew had a bottle of alcohol hidden in the family’s backyard.
On June 28, 2006, Andrew admitted all allegations in the amended petition save that he failed to comply with his parole officer’s instruction to enroll in a counseling program. The juvenile court committed him to juvenile hall for 30 to 40 days, after which he was released to the home of his mother. The wardship proceedings were then transferred back to Napa County.
On October 17, 2006, Andrew was suspended from school for five days after using profanity towards a school staff member. Ten days later, he was again suspended for five days for fighting with another student. On November 9, 2006, he had an unexcused absence, and on November 15, 2006, he was again suspended for five days after threatening to fight another student. He was arrested and detained at juvenile hall, and a violation of probation was filed on November 17, 2006.
After Andrew admitted the probation violation, the court continued him as a ward of the court in the home of his mother and ordered him to complete a Juvenile Hall Impact Program.
Yet another violation of probation was filed on April 8, 2007, alleging that Andrew had violated curfew. The allegation stemmed from an incident in which Andrew was driving around with other juveniles when one of the other passengers in the car was struck in the face with a rock. Andrew, who was driving without a license, gave a false statement to the investigating officers. He arrested for failing to obey all laws and being out past his 9:00 p.m. curfew. Incident to arrest, he was found to be in possession of cigarettes.
Again, Andrew admitted the violation of probation Upon the probation department’s recommendation, Andrew was released on home detention in the home of his mother.
B. Current Offense
Andrew apparently stayed out of trouble for one year, until April 27, 2008, just two months before his eighteenth birthday. On that day in Solano County, victims Riley W. (13 years old) and brothers Michael G. (16 years old) and Ernesto G. (12 years old) were walking to a store when they were approached by three individuals. One—subsequently identified as Joe C.—asked Michael if he had any “bud,” which Michael knew referred to marijuana. When Michael answered “No,” Joe demanded, “Got any money? What’s in your pockets?” Riley reached into his pocket and handed over his wallet and cell phone. When Michael answered “Nothing much,” Joe punched him in the face, picked him up, and slammed him to the ground. All three assailants—one of whom was identified by the victims as Andrew—then began kicking and punching Michael while he was on the ground, and one of them grabbed his wallet from his pocket. A car then pulled up, the three assailants got in, and the car drove off. The victims claimed the following losses: Riley was robbed of $120 and his cell phone, Michael of $30, and Ernesto of an iPod valued at $200. Michael suffered a small cut to one of his elbows from being slammed to the ground.
Andrew and the others were arrested shortly after the incident, and the following day, the Solano County District Attorney filed a section 602 petition, charging Andrew with two counts of felony second degree robbery and one count of felony attempted second degree robbery. Despite that eyewitnesses identified Andrew as one of the assailants who kicked Michael, Andrew denied having done so, claiming instead that he watched Joe approach the boys, and when Joe threw Michael to the ground, Andrew walked up to Joe and told him to leave.
On May 14, 2008, Andrew admitted one count of felony second degree robbery, and the court dismissed the remaining allegations. The matter was then transferred to Napa County for disposition, and Andrew was transported to Napa County juvenile hall, where he was detained pending a contested disposition hearing.
C. Disposition
In preparation for disposition, the probation department prepared a report detailing Andrew’s lengthy history with the juvenile court as well as his involvement in the instant offense. The report also provided a “case summary, assessment and plan,” which concluded as follows:
“After reviewing the minor’s history within the justice system, it appears the challenges he needs to overcome relate to his poor decision making skills, lack of positive role models and peer relationships, and increased criminal behaviors. To the minor’s credit, he is strengthened by the love between himself and his mother, he has graduated high school, and has completed a residential treatment program. However, he takes no responsibility for his behavior in count one and puts the blame on the co participant(s).
“The minor has been under the jurisdiction of the Court for approximately four and a half (4 1/2) years and would appear to do well at times but continued to have trouble complying with all of his conditions of probation. Rehabilitation efforts by the probation department included supervision of the minor in the community, counseling, residential treatment, and placement in his father’s home out of the county. During the past one and a half (11/2) years, the minor had remained in the home of his mother and appeared to be compliant within the home setting. He also graduated from high school in December 2007. However, he continued to associate with a negative peer group and did not involve himself in a structured activity, such as full time employment, once he graduated from high school. Instead, the minor’s criminal behaviors escalated. Several years ago, the minor began conspiring with other juveniles and involved himself in several first degree residential burglaries. During one of the burglaries, the owner of the home returned to find the minor in the house. During the most recent offense, the minor’s and his co-participants’ actions occurred on a city street, with reportedly several uninvolved people around, and they attacked and robbed people younger than themselves, including a twelve year old boy. In addition, the twelve year old had to witness his older brother being attacked, punched and kicked, by the minor and co participants.
“Based on the nature of the current charges, an escalation of supervision and placement is warranted. During a supervision case conference, the minor’s history and present circumstances were reviewed. Another stint at residential treatment is not an option as the minor will reach the age of majority in two weeks and he has graduated high school. Placement in a full-term camp program was discussed but placement in such a program would not include the secure setting, counseling, victim impact groups, and vocational training the minor is in need of. With the minor’s criminal history, which includes several residential burglaries and now a robbery, placement in Bar-O Boys Ranch and Fouts Springs is unlikely. Based on the fact the minor has been given opportunities to redirect his behaviors in the community and the potential danger he presents to the community, it was a unanimous decision to recommend placement in a secure setting. The seriousness of the instant offense requires the minor to participate in a lengthy program that will assist him in making appropriate choices and remain law abiding, all the while keeping the community safe.”
The report concluded with a recommendation that Andrew be committed to the DJF, with the “hope that [he] will avail himself of rehabilitation services offered so he can avoid future incarcerations as an adult.”
A dispositional hearing was held on July 29, 2008. At the outset, the court specifically inquired of probation officer Jennifer Morowit what services or programs would be available at the DJF that would not be available in a local commitment. She represented that because Andrew was already 18 years old and had graduated from high school, funding was such that he would not be accepted at a residential treatment program. She further explained that at the DJF, there would be more programs available to him than a camp setting, specifically mentioning vocational training, college courses, and services for issues like substance abuse, gang awareness, and victim awareness. According to Ms. Morowit, at the DJF an assessment would be conducted in the first 90 days in order to determine specifically what programs would benefit Andrew.
Consistent with the probation department’s recommendation, the prosecutor argued for a DJF commitment: “I think that in light of all that the court’s read in the probation report, most importantly the minor’s criminal history, I think that serious intervention in this minor’s life via a [DJF] commitment would hold the minor accountable for his actions. It would also protect the public safety and it will also adequately address the minor’s treatment needs. [¶] It’s clear that the minor has significant criminal tendencies. He has lived a life of crime for the last few years. He’s been a thief to many innocent victims. It’s also clear to me that the minor’s needs need to be addressed and [the DJF] has the resources that are going to be able to address those needs and also balance these needs out with the need to protect public safety and protect the public from future crimes of this minor. [¶] The minor has a pattern and lifestyle of crime. He takes things that don’t belong to him by force or unlawful entry. There’s many innocent victims out there due to the actions of the minor. He’s violated on several occasions the right for people to feel secure in their own home.”
Andrew’s counsel argued for a lesser disposition, urging that instead of the DJF, Andrew be “continued a ward of the court, he can be placed in juvenile hall, he can even be housed in the Napa County Department of Corrections, the local jail. In addition, the minor can be required to be placed in a group home setting.”
Andrew’s mother likewise objected to a DJF commitment, claiming that Andrew is “a good kid” who is “pretty honest” and is “not a menace to society,” and that he would come out of the DJF with “a mentality of a lifetime criminal.” Instead, she urged the court to release him with electronic monitoring so he could get a job, go to school, or enlist in the military.
Andrew also addressed the court to say this: “I’ve had a lot of time to reflect on my situation, my current situation and I understand that I put myself in this situation by involving myself with those certain people and being more of a follower than a leader. [¶] But at the same time I didn’t hit anybody or take anything and I believe I shouldn’t be punished by going to the [DJF]. But if given the chance I can confidently say that I will do nothing but stay away from those people and doing better.”
At the conclusion of the hearing, the court adopted the probation department’s recommendation and committed Andrew to the DJF, stating as follows:
“In looking at the issue before the court in terms of disposition, I note first of all that probation has tried a number of approaches to dealing with the minor as a juvenile ward of the court, starting with the juvenile hall commitments, residential treatment programs, one of which he failed, the other which he ended up successfully completing and a host of violations of probation over the course of the years.
“In looking at the offenses that Andrew has been found to have committed over the course of his juvenile time, I note that we have two sustained petitions for residential burglary, a third residential burglary that was dismissed with a Harvey waiver, a sexual battery and now this 211 charge, this robbery charge.
People v. Harvey (1979) 25 Cal.3d 754.
“These offenses in the court’s mind demonstrated a complete lack of regard for the rights of other people. And it’s significant to the court in looking at these facts, these crimes, every single one of them involves an intrusion into the rights of other people: breaking into people’s homes, grabbing another human being, a young girl... [¶]... [¶] in a sexual way, and now this robbery of a teenage boy and with his 12-year old brother nearby when it happened.
“I... recognize that there can be dispute about his involvement in the robbery, but he sits here today with a sustained petition for robbery. There is information in the report that suggests that all three of the individuals who were involved in this robbery, including the minor, were kicking the victim when he was on the ground. But even if that’s not the case, when you look at this, one of the things that is just crystal clear to me is that... people are more dangerous in groups and the fact—I don’t see this as mitigating that he was one of three people that confronted and attacked a teenage kid and stole his property.
“I find that, frankly—I don’t see that as a mitigating factor. You are definitely more of a threat to society when you’re acting with other co participants. And whether you claim to be the least culpable in that event or the most, the bottom line is that crime would not be effectuated as effectively were it not for the fact that multiple individuals who were involved in carrying out that crime.
“It’s also a predatory act, it’s a robbery. And it’s... very significant, it’s a very serious offense and I would note that the minor committed this offense two months shy of his eighteenth birthday and when he committed this crime there’s a good argument that had he been in another county he might have been tried as an adult.
“Significantly as well,... had he committed this offense two months later he would have been treated as an adult because he would have been an adult. So those facts are all very significant to me.
“I note and I appreciate, Andrew, that you were performing much better on probation over the last year and you were making great strides, but I can’t ignore the history of conduct going back to age 13 and simply ignore that evidence, ignore those facts and ignore the fact that after a year of what appears to have been law-abiding behavior you were involved in a robbery.
“So the court concludes that the services that probation and the county was able to offer to the minor have essentially been exhausted and I am going to sentence you to the [DJF].
“I’m going to set the maximum confinement time as follows: I am [going to] select the aggravated term of five years for... [¶]... [¶] the crime of robbery.
“I based that upon a number of factors. One is that his prior performance on parole had been very poor. In addition, the facts of the crime were very serious. The victim was particularly vulnerable: 16 year old boy. And I’ll select the aggravated term.
“I’m going to include as part of the maximum confinement time the 16 months, which is one third the midterm on the two residential burglaries for a total of 32 months, which works out to seven years, four months as a maximum potential confinement time in this matter.”
The court subsequently struck one of the residential burglary counts and reduced the maximum time of confinement to six years, four months.
This timely appeal followed.
ANALYSIS
A. Statutory Framework
“The purpose of the juvenile delinquency law is twofold: (1) to serve the ‘best interests’ of the delinquent ward by providing care, treatment, and guidance to rehabilitate the ward and ‘enable him or her to be a law-abiding and productive member of his or her family and the community,’ and (2) to ‘provide for the protection and safety of the public....’ ” (In re Charles G. (2004) 115 Cal.App.4th 608, 614-615, quoting § 202, subds. (a), (b) & (d).) Section 202 was amended in 1984 to shift “its emphasis from a primarily less restrictive alternative approach oriented towards the benefit of the minor to the express ‘protection and safety of the public.’ ” (In re Michael D. (1987) 188 Cal.App.3d 1392, 1396; see also In re Javier A. (1984) 159 Cal.App.3d 913, 958.) While greater emphasis has been placed on “punishment for rehabilitative purposes and on a restrictive commitment as a means of protecting the public safety,” commitment to DJF cannot be based exclusively on retribution. (In re Michael D., supra, 188 Cal.App.3d at p. 1396.) A commitment to the DJF may be made in the first instance, without previous resort to less restrictive placements. (In re Eddie M. (2003) 31 Cal.4th 480, 488; In re Asean D. (1993) 14 Cal.App.4th 467, 473.) At disposition, the juvenile court must act consistently with these purposes. (In re Schmidt (2006) 143 Cal.App.4th 694, 716.)
In order to commit a minor to the DJF, “there must be evidence in the record demonstrating both a probable benefit to the minor by a [DJF] commitment and the inappropriateness or ineffectiveness of less restrictive alternatives.” (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396; In re George M. (1993) 14 Cal.App.4th 376, 379; section 734 [“No ward of the juvenile court shall be committed to [the DJF] 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 [or she] will be benefited by the reformatory educational discipline or other treatment provided by the [DJF].”].)
In making its dispositional order, the court must “consider ‘the broadest range of information’ in determining how best to rehabilitate a minor and afford him adequate care.” (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329, quoting In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684.) In addition to any other relevant and material evidence, the court should also 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.” (§ 725.5.)
B. Standard of Review
We review the juvenile court’s dispositional order for abuse of discretion. (In re Robert H., supra, 96 Cal.App.4th at pp. 1329-1330; In re Asean D., supra, 14 Cal.App.4th at p. 473.) “ ‘ “ ‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’ ” ’ ” (In re Emmanuel R. (2001) 94 Cal.App.4th 452, 465.) “We 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.” (In re Michael D., supra, 188 Cal.App.3d at p. 1395; accord, In re Robert H., supra, 96 Cal.App.4th at pp. 1329-1330 ; In re Asean D., supra, 14 Cal.App.4th at p. 473.) Substantial evidence is “ ‘evidence which is reasonable, credible, and of solid value....’ ” (In re Paul C. (1990) 221 Cal.App.3d 43, 52.)
C. The Juvenile Court Did Not Abuse Its Discretion in Committing Andrew to DJF
The essence of Andrew’s first argument is that the juvenile court abused its discretion because it failed to consider less restrictive alternatives to a DJF commitment, namely a regional facility, camp, or juvenile hall placement. To the contrary, it is clear from the record that the court did in fact consider less restrictive alternatives to a DJF commitment, but rejected them as inappropriate.
As detailed above, the probation department’s disposition report, which the court considered, explained that a residential program was not an option given that Andrew was 18 years old and had graduated from high school. Further, the department concluded that in light of Andrew’s criminal history, which included several residential burglaries and a violent robbery, placement in a secure setting was necessary to ensure that Andrew would make appropriate choices and remain law abiding, and to keep the community safe. A camp program would not provide a secure setting, nor would it provide the counseling, victim impact groups, and vocational training Andrew needed.
Andrew’s counsel provided the court with a lengthy exposition of why Andrew should be continued a ward of the court and placed in juvenile hall, the local jail, or a group home setting. In seeking to justify an alternative to the DJF, counsel noted that Andrew had completed high school and the Walden House residential program, had participated in counseling, and had been doing “quite well” at juvenile hall, which demonstrated his ability to succeed in a setting other than the DJF. Counsel pointed out that most of Andrew’s offenses, including his burglaries, were committed when he was 13 years old, and that the most recent offense—the robbery—did not merit DJF commitment. Further, he argued that Andrew was not a flight risk: “This is not a person who attempts to evade the process of the court, who attempts to run, to flee, to escape.”
Finally, at the dispositional hearing, the court specifically inquired of the probation officer what services would be available at the DJF that would not be available in alternative placements. The officer responded by discussing residential treatment programs, camp placement, and the DJF.
In light of the above, it is clear that the court was informed of alternatives to DJF placement, as well as the arguments in favor of and against such alternatives. So informed, the court concluded that Andrew required a secure placement, and that the DJF was the most appropriate secure placement because of the programs available. In support, the court noted that the probation department had tried “a number of approaches” to dealing with Andrew, including juvenile hall commitments and residential treatment programs. And, the court observed, Andrew’s “offenses... demonstrated a complete lack of regard for the rights of other people... [and] every single one of them involve[d] an intrusion into the rights of other people....” The court further noted that while the nature of Andrew’s role in the robbery was in dispute, there was evidence that Andrew took an active role in kicking the victim when he was on the ground, and the fact that Andrew was one of three people who attacked the victim made him a greater threat to society because he was acting as part of a group, which enabled them to perpetrate the crime more effectively. Finally, as the court observed, the robbery occurred two months before Andrew’s eighteenth birthday; in other counties, he might have been tried as an adult, and had the crime been committed two months later, he would have been an adult. Given the foregoing, we cannot say that the juvenile court exceeded the bounds of reason by concluding that there were no suitable less restrictive alternatives to a DJF placement.
Andrew also complains that the record contains no evidence that the DJF will provide a benefit to him that is not available in other settings. Instead, he contends that his history demonstrates he can succeed in a program with minimal supervision, citing his completion of the Walden House program.
We note first that while Andrew technically completed the Walden House program, it is questionable whether he did so successfully. The purpose of such a program is to rehabilitate the ward in order to prevent recidivist conduct. But Andrew’s criminal activity continued despite the program. We would thus be hard pressed to agree with Andrew’s claim that he successfully completed the program.
More significantly, the record does contain substantial evidence supporting a conclusion that Andrew would probably benefit from a DJF commitment. As noted above, at the commencement of the dispositional hearing, the court specifically asked of the probation officer what services would be available to Andrew at the DJF that would not be available in a local commitment. She identified vocational training, college courses, and services for issues like substance abuse, gang awareness, and victim awareness. Because Andrew was already a high school graduate, the vocational training and college courses would undoubtedly assist him in acquiring skills that could lead to gainful employment after release from the DJF, employment that would hopefully provide Andrew with an outlet for his time and energy so that he would not direct them towards a life of crime.
B. The Juvenile Court Did Not Abuse Its Discretion In Selecting The Aggravated Term On The Robbery Charge
The juvenile court has discretion to set a ward’s maximum time of confinement at the DJF, provided the ward is not confined for longer than the maximum term of imprisonment for an adult convicted of the same crime. (§§ 726, subd. (c), 731, subd. (c).) In selecting the maximum time of confinement, the court is to consider the facts and circumstances of the case. (In re Sean W. (2005) 127 Cal.App.4th 1177, 1183.) Doing so here, the juvenile court selected the aggravated term of five years for the robbery charge, specifically citing Andrew’s prior poor performance on probation, the seriousness of the crime, and the vulnerability of the victims.
Andrew challenges the court’s selection of the upper term, first taking exception with the court’s citation of the victims’ vulnerability as an aggravating circumstance. The record supports a conclusion that Andrew and his co-participants preyed on a group of younger children, stole from all three of them, and violently assaulted one of them while his younger brother watched. This most certainly is substantial evidence of victim vulnerability.
Andrew also challenges the court’s reliance on his prior record and multiple probation violations, claiming the court failed to consider the circumstances surrounding his criminal history: “[Andrew] was a thirteen-fourteen year old child at the time who had a drug addicted mother at the time of the offenses. He was caught on two occasions stealing clothes, and on one occasion stealing a play station. [Andrew’s] acts demonstrated that he was wanting of solid parenting.” This summary is extraordinarily dismissive of Andrew’s true history, which additionally involved a sexual assault on a young schoolmate, theft of a bicycle from a residence, and possession of stolen property. Andrew also incurred countless probation violations, including multiple curfew violations, fighting at school, and behavioral and attendance issues at school. Andrew was also terminated from a residential treatment program for assaulting another student and stealing someone else’s school work. Given this, the court’s citation to Andrew’s prior record and probation violations as aggravating circumstances was supported by the record.
Andrew also submits there were mitigating factors that the court failed to consider: (1) the crime was “committed because of an unusual circumstance... that is unlikely to recur”; (2) “the criminal conduct was partially excusable for some other reason not a mounting to a defense”; and (3) he “participated with no apparent [pre]disposition to do so, was induced by others to participate in the crime.” (Cal. Rules of Court, rules 4.423(3)-(5).) We disagree that any of these mitigating factors were applicable. To the contrary, Andrew had a prior history of violence, namely his assault on a fellow ward during his placement at Telos Youth Outpost and his sexual assault on a schoolmate. He claims that he would not have participated in the robbery but for Joe C.’s influence, but his three prior residential burglaries belie that claim. And Andrew’s claim that he played a minor role in the robbery is undermined by witnesses who identified him as one of the individuals who kicked the victim while he was on the ground.
Finally, Andrew claims that the court improperly considered the fact that others were involved in the offense as an aggravating factor, when in fact it was a mitigating factor. However, the court provided a reasonable rationale for its conclusion that this was a circumstance in aggravation: “You are definitely more of a threat to society when you’re acting with other co-participants. And whether you claim to be the least culpable in that event or the most, the bottom line is that crime would not be effectuated as effectively were it not for the fact that multiple individuals who were involved in carrying out the crime.” And while Andrew may have played a lesser role in the incident than Joe C., it was by no means minor, as the victims identified Andrew as one of the assailants who kicked Michael G. when he was on the ground.
We therefore reject as meritless Andrew’s claim that the court abused its discretion in selecting the upper term on the robbery charge.
DISPOSITION
The dispositional order committing Andrew to the DJF and imposing the aggravated term as the maximum time of confinement on the robbery charge is affirmed.
We concur: Kline, P.J., Lambden, J.
All statutory references are to the Welfare & Institutions Code unless otherwise noted.