Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. SJ0810500
Jenkins, J.
Defendant and appellant D.C. appeals from the juvenile court’s dispositional order committing him to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF) for a maximum term of eight years. Appellant’s counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting that we conduct an independent review of the entire record on appeal. Having done so, we affirm the juvenile court’s dispositional order.
DJF was formerly known as the California Youth Authority and was renamed DJF effective July 1, 2005. (In re Lemanuel C. (2007) 41 Cal.4th 33, 37, fn. 2.) We will use the name DJF uniformly throughout this opinion even when referring to cases predating the name change.
Factual & Procedural Background
Appellant was born in February1991. On December 7, 2007, appellant and his friends Jeremiah W. and Antonio J. went by BART from Oakland to visit appellant’s relatives in San Francisco. At the Civic Center BART station in San Francisco, appellant and his friends encountered a group of youths who had tried to fight with them on a previous occasion. These youths recognized Antonio and started to argue with him. During the argument, one of the youths postured as though he had a gun. Appellant and his friends exited the BART station onto Market Street. Appellant spotted the youths on the other side of the street. The youths began to run across the street towards appellant and his friends while reaching into their pants. Appellant thought the youths were armed and feared being shot, so he pulled out his own weapon, fired off two shots and fled. Appellant was apprehended shortly thereafter and placed under arrest.
Kevin Brackett was standing waiting for a bus on Market Street when he heard shots fired. He ducked and felt a burning sensation along his lower neck. The bullet missed his spine by centimeters. Police found a Remington 35mm caliber Hornady cartridge case across the street from the bus stop where Bracket was standing. Also found near the scene was a 35mm Remington caliber Marlin Model 336 lever action rifle with shortened stock.
During the course of a subsequent psychological report conducted by Dr. John Shields (further referenced below), appellant stated that he carried the loaded rifle to San Francisco in the leg of his pants. Appellant told Dr. Shields he found the rifle in an alley in Oakland. Also, in a subsequent interview with a probation officer, appellant stated he was the victim of a drive-by shooting in April 2007 while visiting his aunt’s home in the Sunnydale Housing Projects in San Francisco. Appellant told the probation officer he armed himself because he no longer felt safe and was scared of being shot or killed.
On December 11, 2007, the San Francisco District Attorney’s Office filed a juvenile wardship petition against appellant pursuant to section 602 of the Welfare and Institutions Code. The petition charged appellant with attempted murder (Penal Code, § 187) [counts one and two]; assault with a firearm (Penal Code, §245, subd. (a)(2)) [counts three and four]; felony vandalism (Penal Code, § 594, subd. (b)(1)) [counts five and six]; carrying a concealed weapon (Penal Code, § 12025, subd. (b)(4)) [count seven]; carrying a loaded weapon in public (Penal Code, § 12031, subd. (a)(2)(D)) [count eight]; and possession of a concealed weapon by a minor (Penal Code, § 12101, subd. (a)(1)) [count nine]. Also, the petition included use-of-firearm allegations (Penal Code, §§ 12022.53, 12022.5, 12022.7) in connection with the attempted murder charges in counts one and two.
Further statutory references are to the Welfare and Institutions Code unless otherwise noted.
Concurrent with the petition, the district attorney also filed a section 707 motion to determine whether appellant was amenable to treatment under the juvenile court law. Dr. John Shields prepared a psychological assessment report for purposes of the section 707 hearing. Dr. Shields noted appellant’s behavior “was perhaps related to his own victimization some eight months earlier. The trauma of his being shot left him with clear signs of PTSD which has since been untreated.” In summary, the report stated appellant “is a first time offender who is . . . amenable to the rehabilitative interventions available to him through the juvenile court. . . . It is strongly recommended that in order to prevent further antisocial development and further symptoms of PTSD, [appellant] be provided with psychotherapeutic interventions immediately.” The juvenile court held a hearing on the section 707 motion between June 16 and 23, 2008. On July 11, 2008, the juvenile court entered an order finding appellant amenable to treatment under juvenile law.
At a pretrial hearing on July 25, 2008, appellant advised the court he wished to accept a negotiated disposition. The juvenile court then advised appellant of his constitutional rights. Appellant stated he understood and wished to give up those rights. Also, appellant stated he understood that the maximum period of confinement associated with the offenses to be admitted was fourteen years and eight months. Counsel for appellant stipulated to a factual basis for the offenses to be admitted. Thereafter, appellant admitted to the allegations in count 4 that he committed assault with a firearm [Penal Code, § 245, subd. (a)(2)], a strike, in count 8 that he carried a loaded firearm in public [Penal Code, § 12031, subd. (a)(2)(D)], and also that he personally and intentionally discharged a firearm [Penal Code, § 12022.5, subd. (a)]. The juvenile court found the allegations true and that appellant’s admissions were freely and voluntarily given. The court then granted the petitioner’s motion to dismiss the remainder of the charges pursuant to Penal Code, section 1385 and transferred the case to Alameda County for disposition.
At the disposition hearing on September 4, 2008, appellant’s counsel noted appellant had “no prior criminal history” and therefore “no lesser or prior attempts at rehab have been tried or failed.” Counsel vigorously advocated that “a lesser form of rehabilitation [than commitment to DJF] will be both appropriate and sufficient.” Counsel advised the court that appellant had been evaluated and found eligible for such a lesser form of rehabilitation at Rights of Passage, Silver State Academy in Nevada (ROP).
Counsel for petitioner, on the other hand, emphasized the violent and dangerous nature of defendant’s conduct, noting appellant “arm[ed] himself with a giant weapon with a 30-inch barrel,” discharged the weapon twice, and very nearly killed an innocent bystander in the process. Under these circumstances, counsel argued “this is clearly a case for a [DJF] commitment.” Counsel added, “[T]his minor could be benefited by what [DJF] has to offer in terms of therapy for the issues that he may have after being shot himself, and I don’t see that there should be any other consideration at this time. ROP is not a locked facility. This minor could walk away, and by the time he is brought back into court he will . . . more than likely be over 18. . . . I don’t think the ROP is appropriate based on the possible danger to the community that this minor poses.”
The juvenile court acknowledged it was “a difficult disposition.” The court noted the “extraordinarily significant and serious offense that happened here” and opined it was “miraculous” that defendant was not facing a murder charge. Also, the court stated that there was “no excuse for arming yourself in the way that was done here and then on top of that to actually shoot someone essentially without provocation.” The court concluded that “under the circumstances I do think that [commitment to DJF] is an appropriate consequence for that behavior.”
Furthermore, the court considered whether ROP “would have a better program for [appellant] and be more likely to result in some sort of rehabilitation.” The court stated: “Honestly, I don’t think so. . . . There’s very little significant practical difference” between the ROP program and “the course at [DJF].” Also, the court noted that “it’s possible that [appellant] will spend less time at [DJF] if he does a good program there than he would at [ROP]. So putting all of those things together I am comfortable with and I think the appropriate resolution” is commitment to DJF.
Thereafter, the court adjudged appellant a ward of court and committed him to the DJF for a maximum term of eight years. The order of commitment was filed on September 11, 2008. Appellant filed a timely notice of appeal on September 15, 2008.
Discussion & Analysis
As required under People v. Kelly (2006) 40 Cal.4th 106, 124, we affirmatively note appellant’s counsel has filed a Wende brief raising no arguable issue, counsel informed appellant of his right to file a supplemental brief, and appellant did not file such a brief. We have also independently reviewed the entire record for potential error and find none.
A juvenile court has broad discretion in ordering the appropriate disposition in a juvenile delinquency matter. (In re Asean D. (1993) 14 Cal.App.4th 467, 473; In re George M. (1993) 14 Cal.App.4th 376, 379.) On appeal, we review a juvenile court’s commitment decision only for abuse of discretion. In doing so, we must indulge all reasonable inferences in favor of the decision and affirm so long as it is supported by substantial evidence. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396; In re Asean D., supra, 14 Cal.App.4th at p. 473.)
With respect to juvenile courts’ commitment decisions, California law is designed to both rehabilitate minors and ensure public safety. (See § 202; In re Asean D., supra, 14 Cal.App.4th at p. 473.) Under this scheme, a juvenile’s commitment cannot be based solely on retribution grounds. (§ 202, subd. (e).) Rather, “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., supra, 188 Cal.App.3d at p. 1396.) If necessary, however, “a commitment to the Youth Authority may be made in the first instance, without previous resort to less restrictive placements.” (In re Tyrone O. (1989) 209 Cal.App.3d 145, 151 [257 Cal.Rptr. 134].)” (In re Asean D., supra, 14 Cal.App.4th at p. 473; accord In re Angela M. supra, 111 Cal.App.4th at p. 1396.) To commit a minor to a juvenile facility, the juvenile court must be “fully satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefited by the reformatory educational discipline or other treatment provided by the Youth Authority.” (§ 734.)
We find no abuse of discretion in the juvenile court’s application of these standards to its ultimate disposition committing appellant to DJF. The options for disposition presented to the juvenile court at the dispositional hearing were the ROP program or commitment to DJF. In its consideration of these options, the juvenile court stated that DJF was an appropriate sanction in light of the recklessly violent nature of appellant’s actions, which almost resulted in the death of an innocent bystander. (§ 202, subd. (e)(5) [stating DJF commitment is a permissible sanction].) Moreover, the juvenile court also stated that the programs available at DJF were equivalent to those available at ROP in terms of their rehabilitative value to appellant. Accordingly, in light of appellant’s relative maturity, the extremely violent nature of his conduct, and the equivalent rehabilitative value of the two programs, the juvenile court did not err by committing appellant to DJF rather than sending him to the ROP program.
DISPOSITION
Having reviewed the entire record for potential error, we find none. Accordingly, the juvenile court’s dispositional order is affirmed.
We concur: McGuiness, P. J., Pollak, J.