Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super.Ct.No. JU20839
Duffy, J.
Daniel S. is in the custody of the Division of Juvenile Facilities (DJF) for an aggregate term of seven years and a month that the Santa Cruz County juvenile court imposed on him after he admitted committing voluntary manslaughter (Pen. Code, § 192, subd. (a)), assault with a deadly weapon other than a firearm (id., § 245, subd. (a)(1)), and, regarding the voluntary manslaughter, the commission of a serious felony because he used a knife (id., subd. 1192.7, subd. (c)(23)). Daniel S. appeals from the commitment order (Welf. & Inst. Code, § 800, subd. (a)), claiming that it amounts to an abuse of discretion. We disagree and will affirm the order.
The agency previously held the titles Division of Juvenile Justice (DJJ) and Department of the Youth Authority (CYA). We will call the agency the DJF, but various sources we quote refer to the CYA.
FACTUAL AND PROCEDURAL BACKGROUND
I. Daniel S.’s Stabbing of Two Victims
On April 29, 2006, the day he killed Jason Jobes in El Cajon (San Diego County), 16-year-old Santa Cruz County resident Daniel S. was already on juvenile probation for gang-involved conduct. He was also affiliated with the Norteño gang. On that day, Daniel S.’s father drove him to San Diego for a funeral. Daniel S. brought along a knife. Shortly before midnight Daniel S., now drunk, was driving around in a pickup truck with relatives, one of whom was a Nuestra Familia gang member. An occupant of the truck ordered a woman who was on foot out of the way. She replied with an expletive. Daniel S. emerged from the truck and tried to steal her purse. She yelled for help and two passers-by, Jobes and Robert Loper, came to her aid. Daniel S. stabbed Jobes four times in the chest, killing him. He also stabbed Loper in the side and right arm, but Loper survived. The killing left Jobes’s two young daughters without a father. When arrested, Daniel S. waived his rights to remain silent and to counsel and falsely told police that a cousin had done the stabbing. Following additional questioning, however, he admitted stabbing the two victims.
II. Proceedings in Juvenile Court
On October 4, 2006, a San Diego County juvenile petition alleged that Daniel S. committed murder (Pen. Code, § 187), attempted murder (id., §§ 664, 187), voluntary manslaughter (id., § 192, subd. (a), assault by force likely to cause great bodily injury (id., § 245, subd. (a)(1)), assault with a deadly weapon (ibid.), and attempted robbery (id., §§ 664, 211). The murder, attempted murder, and voluntary manslaughter counts contained allegations that Daniel S. personally used a deadly or dangerous weapon, a knife, in the commission of the crimes (id., § 12022, subd. (b)(1)). The attempted murder and aggravated assault counts contained allegations that he personally inflicted great bodily injury during the commission of the crimes. (Id., § 12022,7, subd. (a).) Except for the attempted robbery charge, each count also contained allegations that the crime came within the purview of the “Three Strikes” law (id., § 1192.7, subd. (c)).
After Daniel S. admitted committing voluntary manslaughter and assault with a deadly weapon and the truth of the Three Strikes law allegation on the voluntary manslaughter charge, the San Diego County juvenile court dismissed the remaining counts and a number of the allegations with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754) and granted the prosecutor’s motion to strike the remaining allegations.
The case was transferred to Santa Cruz County juvenile court for disposition. The probation report recommended that Daniel S. be committed to DJF for the maximum term of 12 years and a month. Daniel S.’s petition-related offenses were extremely serious. Moreover, he had a history of criminal conduct, including stealing sunglasses from vehicles in 2003, possessing stolen property taken from a vehicle and possessing marijuana in 2005, and chasing opposing gang members with a metal fence stake in 2006. He was, as the previous sentence alludes to, a gang member despite denying it. He was violent and incorrigible in school, i.e., at Pajaro Valley High School he was suspended six times for fighting, being under the influence of drugs, causing disruptions, threatening to injure other students, and violating school rules. Later, at Renaissance High School, he was suspended for fighting. Except for Fouts Springs Ranch, a remote facility in Colusa County, every ranch or camp facility outside the DJF system that had a contract with Santa Cruz County had refused to accept Daniel S. because of the severity of his acts. Fouts Springs Ranch would consider Daniel S. for admission but would not guarantee it.
The Santa Cruz County juvenile court conducted a hearing on Daniel S.’s placement. Daniel MacAlliar, a founder and the executive director of the Center on Juvenile and Criminal Justice, a nonprofit group that operates programs for juvenile and adult offenders and analyzes juvenile and criminal justice issues, testified on direct examination that DJF was rife with gang activity and gang-, ethnicity-, and race-based violence. The DJF system did not rehabilitate youths but only punished and incapacitated them. Daniel S. would be forced to belong to a gang to survive in DJF. The recidivism rate among DJF wards ranged from 75 to 90 percent. In sum, a DJF placement would not be suitable for Daniel S., whereas a 24-bed alternative program called Courage to Change, located in the Tulare County town of Exeter, would. The Courage to Change staff had conditionally accepted Daniel S. for admission. The staff felt that they could reshape Daniel S.’s life and he would emerge from that facility reformed and ready to reintegrate with society.
On cross-examination, MacAlliar testified that Courage to Change is not a locked facility. It is also unfenced. No juvenile adjudicated to have killed was lodged there. DJF had managed to reduce the number of its wards from 4200 to 2700 since 2004. Daniel S. could be sent to the DJF’s O.H. Close facility, which was relatively peaceful.
The parties stipulated that Santa Cruz County probation officers visit DJF facilities quarterly to evaluate the situation of county wards lodged in them.
III. The Juvenile Court’s Ruling
The juvenile court stated, “I have weighed all of the documents that I have reviewed in this file, including several from the [Center on Juvenile and Criminal Justice], . . . many from the Probation Department, the documents from San Diego, the letters from family, from Daniel himself, from the several times speaking with the Jobes family.” “I have given [the disposition] an incredible amount of contemplation and thought and meditation and spiritual consultation.”
The juvenile court explained its exercise of discretion as follows: “I don’t believe that there are many people who truly benefit from prison other than to the extent that they are safe from committing additional offenses to the general public. I do, however, know for a fact that . . . not everyone that goes into the Division of Juvenile [Facilities] comes out a horrible, heinous, homicidal maniac. [¶] I know people in my community . . . who have not too long ago been part of the inmates at . . . the Department of Juvenile [Facilities], and they’re incredibly giving and contributing members of our community. [¶] . . . [T]hat is not to say there aren’t serious, serious problems there.”
“This is an offense that has . . . affect[ed] our community . . . . It [has] affect[ed] our [entire] state. [¶] . . . [I]t’s probably limitless in its impact.”
“I wish that we had better treatment facilities through the Department of Corrections & Rehabilitation. And I believe that those are actually on their way. I believe that our government officials are serious and intend on making improvements and making them quickly.”
“I cannot find the Courage to Change an appropriate placement, and I don’t see any other options either. This is very serious. And despite the technical determination that it was a [manslaughter,] given the resolution of the matter, it certainly was as aggravated a [manslaughter] as one could make. [¶] . . . [Daniel S. will] benefit . . . from being, at least for a while, in a position where he’s not going to injure someone. [¶] I have to consider his well-being . . . . But I also have to contemplate public safety and consider that.” “[T]he circumstances of this offense . . . are extremely aggravated. The circumstances of . . . Daniel’s life is somewhat mitigating. He’s . . . had some bad luck. Bad options. Not . . . well-cared for by the parents who should have cared for him. [¶] . . . [But he’s] made a lot of bad choices.”
“I do find that the mental and physical condition and qualification of the minor render it probable he would be benefited by treatment provided by the Division of Juvenile [Facilities]; that continuance in the home of the parents or guardian is contrary to his welfare; [and] that reasonable efforts have been made to keep from removing him from home and make it possible to return home.”
As noted, the juvenile court committed Daniel S. to DJF custody for an aggregate term of seven years and a month.
DISCUSSION
I. Legal Background
A minor can be adjudged a ward of the juvenile court for committing a crime. (Welf. & Inst. Code, §§ 602, 725, subd. (b).) The juvenile court has a wide range of options available for placing its wards, including unsupervised probation, return to the home under the supervision of a probation officer, a community care facility (id., § 727, subd. (a)), “a juvenile home, ranch, camp, or forestry camp” or “the county juvenile hall” (id., § 730, subd. (a)), or the “Division of Juvenile Facilities” (id., § 731, subd. (a)(4)). In determining disposition, the juvenile “court shall consider, in addition to other relevant and material evidence, (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.” (Welf. & Inst. Code, § 725.5.) The court must keep in mind the law’s multiple goals, partially expressed in a portion of Welfare and Institutions Code section 202, subdivision (b): “Minors under the jurisdiction of the juvenile court as a consequence of delinquent conduct shall, in conformity with the interests of public safety and protection, receive care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances. This guidance may include punishment that is consistent with the rehabilitative objectives of this chapter.” The statute also states: “As used in this chapter, ‘punishment’ means the imposition of sanctions. It does not include retribution . . . .” (Id., § 202, subd. (e).)
The statute in effect at the time of these proceedings contained the same definitional limitation, i.e., that punishment does not include retribution. (Welf. & Inst. Code, former § 202, subd. (e)(5), 2d par.; Stats. 2001, ch. 830, § 2, p. __.)
“Under [Welfare and Institutions Code] section 202, juvenile proceedings are primarily ‘rehabilitative’ (id., subd. (b)), and punishment in the form of ‘retribution’ is disallowed (id., subd. (e)). Within these bounds, the court has broad discretion to choose probation and/or various forms of custodial confinement in order to hold juveniles accountable for their behavior, and to protect the public. (Id., subd. (e).) . . . Given these aims, and absent any contrary provision, juvenile placements need not follow any particular order under [Welfare and Institutions Code] section 602 and section 777, including from the least to the most restrictive. [Citations.] Nor does the court necessarily abuse its discretion by ordering the most restrictive placement before other options have been tried.” (In re Eddie M. (2003) 31 Cal.4th 480, 507; cf. In re Angela M. (2003) 111 Cal.App.4th 1392, 1396 [“Because commitment to CYA cannot be based solely on retribution grounds [citation], there must . . . be evidence demonstrating (1) probable benefit to the minor and (2) that less restrictive alternatives are ineffective or inappropriate.”]; In re Michael D. (1987) 188 Cal.App.3d 1392, 1396 [same].)
II. Propriety of The DJF Commitment
Daniel S. argues that the juvenile court abused its discretion in committing him to the DJF because the evidence did not support a DJF commitment and the court disregarded evidence that a commitment to an alternative, less restrictive, program would benefit him. “What the court should have done,” he asserts, “was have placed Daniel at [Courage to Change] with the understanding that if he did not comply with the program’s rules and show real progress, that he would be committed to [DJF].” Sending him to DJF rather than Courage to Change, in his view, will increase the danger to society when he is released as early as age 23, because DJF will not rehabilitate him, whereas Courage to Change might do so.
As noted, the juvenile court, noting that Daniel S. was a very serious juvenile offender, ruled that placing him at DJF rather than the lightly secured Courage to Change facility would incapacitate him from injuring anyone outside the juvenile system’s confines.
A. Standard of Review
“ ‘The decision of the juvenile court may be reversed on appeal only upon a showing that the court abused its discretion in committing a minor to CYA. [Citations.] An appellate court will not lightly substitute its decision for that rendered by the juvenile court. We must indulge all reasonable inferences to support the decision . . . and will not disturb its findings when there is substantial evidence to support them. [Citations.]’ [Citation.]” (In re Tyrone O. (1989) 209 Cal.App.3d 145, 151.)
Obviously, however, our deference is not limitless. As relevant here, an abuse of discretion “arises if the trial court based its decision on . . . [citation] . . . an incorrect legal standard.” (People v. Knoller (2007) 41 Cal.4th 139, 156 [speaking of the granting of a new trial motion].) Daniel S. argues that the juvenile court misapplied the legal standard set forth in Welfare and Institutions Code section 202, subdivision (b), in ordering his commitment.
To the extent that a reviewing court is evaluating whether a lower court applied an incorrect legal standard, it is usually addressing a question that is purely or primarily legal. In such a situation, we would review the court’s ruling independently. (See People v. Kennedy (2005) 36 Cal.4th 595, 608 [stating the general rule that “the abuse of discretion standard applies to questions of pure fact, and . . . the independent review standard applies to questions of pure law”]; People v. Marshall (1997) 15 Cal.4th 1, 24 (per curiam) [“issue . . . could be treated as primarily a question of law, subject to de novo review”].) In this case, however, the issue Daniel S. raises is not purely or primarily legal, but is a mixed question of law and fact that is primarily factual, namely whether the juvenile court properly applied Welfare and Institutions Code section 202, subdivision (b), in light of his history of delinquency. Accordingly, “[i]n considering the issue, we will defer to the [juvenile] court’s resolution of the historical facts by viewing the evidence in a light most favorable to the [commitment order]. In determining whether the facts thus established are minimally sufficient to meet the statutory standard, we must exercise our independent judgment.” (In re Ryan D. (2002) 100 Cal.App.4th 854, 862.)
B. Discussion
The juvenile court did not abuse its discretion. As noted, the current version of Welfare and Institutions Code section 202, subdivision (b) states in part that the courts must be guided by public safety: “Minors under the jurisdiction of the juvenile court as a consequence of delinquent conduct shall, in conformity with the interests of public safety and protection, receive care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances. This guidance may include punishment that is consistent with the rehabilitative objectives of this chapter.” (Italics added.) Under the mandate of Welfare and Institutions Code section 202, “[i]n evaluating the court’s exercise of discretion in committing a minor to CYA, we now do so with punishment, public safety, and protection in mind.” (In re Luisa Z. (2000) 78 Cal.App.4th 978, 987-988.) In contrast to prior law, the “new language” of Welfare and Institutions Code section 202 “emphasized different priorities for the juvenile justice system. [Citation.] The new provisions recognized punishment as a rehabilitative tool. [Citation.] Section 202 also shifted 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’ [citations], where care, treatment, and guidance shall conform to the interests of public safety and protection. [Citation.] [¶] Thus, it is clear that the Legislature intended to place greater emphasis on punishment for rehabilitative purposes and on a restrictive commitment as a means of protecting the public safety.” (In re Michael D., supra, 188 Cal.App.3d at p. 1396.)
Thus, the juvenile court acted according to law, attempting to ensure that the public would be protected from Daniel S.’s propensity for extreme violence while keeping in mind his circumstances and striving to place him in a setting that would accord him every possible benefit. With his counsel present, Daniel S. himself had told the probation officer that he recognized one major advantage to a DJF placement: “The minor hopes the Court will choose an alternative disposition but states if he is committed to the Division of Juvenile [Facilities] he will make the most out of it. The minor states that one thing the Division of Juvenile [Facilities] can offer him is a chance to take college courses. The minor stated he would like to study psychology and eventually obtain a degree.”
It bears emphasizing that Daniel S. has proven himself to be extremely dangerous. The original petition allegations included first degree premeditated and deliberate murder, but his counsel in San Diego was able to reach agreement with the San Diego County district attorney’s office on admitting reduced allegations of voluntary manslaughter and assault with a deadly weapon other than a firearm. Had he been two years older he could have faced a superior court trial on charges of the felony murder of Jobes and, if found guilty, been sentenced to death. (Pen. Code, §§ 187, subd. (a), 189, 190.2, subd. (a)(17)(A), 190.3.) Even at age 16, he could have been charged as an adult and, if found guilty in superior court, sentenced to life imprisonment without the possibility of parole. (Id., §§ 187, subd. (a), 189, 190.2, subd. (a)(17)(A), 190.5, subds. (a), (b)); Welf. & Inst. Code, § 602, subd. (b)(1).) The juvenile court could take much of the foregoing into account in deciding the best disposition for Daniel S. inasmuch as the first degree murder allegation was dismissed under the Harvey waiver (People v. Harvey, supra, 25 Cal.3d 754), which, as described in the context of adult criminal proceedings, “permits the sentencing court to consider the facts underlying dismissed counts and enhancements when determining the appropriate disposition for the offense or offenses of which the defendant stands convicted.” (People v. Munoz (2007) 155 Cal.App.4th 160, 167.) The Harvey waiver procedure is available in juvenile proceedings. (E.g., In re Carl N. (2008) 160 Cal.App.4th 423, 426-427.) The court did not abuse its discretion in finding it imperative to protect society from Daniel S. Daniel S.’s claim is without merit.
DISPOSITION
The order making Daniel S. a ward of the court and committing him to the custody of the Department of Juvenile Facilities is affirmed.
WE CONCUR: Mihara, Acting P. J., McAdams, J.