Opinion
B162871.
7-30-2003
In re EMMANUEL O., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. EMMANUEL O., Defendant and Appellant.
Fay Arfa, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster and Erin M. Pitman, Deputy Attorneys General, for Plaintiff and Respondent.
Minor Emmanuel O. appeals from the order committing him to the California Youth Authority after the juvenile court sustained a petition declaring him a ward of the court (Welf. & Inst. Code., § 602) as a result of finding true the allegation that he brandished a gun at someone in another car. (Pen. Code, § 417.3 .) For the reasons set forth below, we affirm the order.
FACTS AND PROCEDURAL HISTORY
In accord with the usual rules on appeal, we state the facts in the manner most favorable to the courts order. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
At about 1:45 p.m. on July 26, 2002, a car carrying minor Emmanuel O. (minor) and four other males pulled alongside a car driven by Juan Perez. Minor pointed a gun at Perez, yelled out "dumb little bitch," told Perez to stop his car, and shouted out the name of the Barrio Van Nuys gang. Perez drove away and notified the police, who later arrested minor. A petition was filed with the juvenile court, alleging that minor brandished a gun at someone in another car. (Pen. Code, § 417.3.) Based on that offense, the petition alleged that minor should be declared a ward of the court. (Welf. & Inst. Code, § 602.) Minor denied the offense and offered an alibi, but the court found the allegations of the petition true and committed minor to the California Youth Authority (CYA) for a period not to exceed seven years. Minor contends on appeal that the court abused its discretion by sending him to CYA.
All further undesignated section references are to the Penal Code.
DISCUSSION
Minor cites In re Aline D. (1975) 14 Cal.3d 557, 121 Cal. Rptr. 816, 536 P.2d 65, and other older cases as authority for the proposition that CYA placement may be ordered only as a last resort when lesser, but progressively more serious options, have failed. Those decisions predate the Legislatures 1984 amendment of Welfare and Institutions Code section 202 (former Welf. & Inst. Code, § 502), recognizing punishment as a rehabilitative tool while emphasizing the safety and protection of the public. (In re Lorenza M. (1989) 212 Cal. App. 3d 49, 57-58, 260 Cal. Rptr. 258.) Since then, the standard has been whether there was a probable benefit to the minor from CYA commitment and whether less restrictive alternatives would be ineffective or inappropriate. (In re Pedro M. (2000) 81 Cal.App.4th 550, 555-556.) We review the courts order under the abuse of discretion standard, indulging all reasonable inferences to support the order. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1330 (Robert H.).) As set forth below, the evidence is more than sufficient to support the order for CYA placement.
Minor was arrested in 1998 for grand theft auto. (§ 487, subd. (d).) He was counseled, released to his parents, and referred to the YAP program. He was arrested again in June 1999 for burglary (§ 459), in July 1999 for possessing live ammunition (§ 12101, subd. (b)) and in November 1999 for obstruction of justice. (§ 148, subd. (a).) Welfare and Institutions Code section 602 petitions were filed as to all three incidents. The burglary petition was sustained and resulted in "suitable placement." The ammunition possession and obstruction of justice petitions were dismissed. In connection with the obstruction of justice charge, however, minor admitted carrying a handgun at the time of the offense. In January 2001, minor was arrested again for grand theft auto. Another petition was filed and sustained, resulting in a camp placement. Minor violated the terms of his probation by continuing his gang affiliation. According to the probation report, minor had no interest in paying his fines or participating in a school program. He also had a "total disregard" for the courts orders. He had failed in "suitable placement," camp placement and home probation. All told, minor had been to camp three times, for a total of nearly 18 months. Even so, the probation report recommended a long-term camp placement instead of CYA.
After sustaining the petition, the court indicated it would order CYA placement based on minors poor track record in the face of repeated camp and other placements, his many violations of court orders, and the increasing severity of his crimes. The court believed the probation officers recommendation was "totally outrageous and ridiculously low." After minors counsel objected, the matter was put over for a disposition hearing. At the disposition hearing, minor asked the court to follow the probation officers recommendation for camp placement, pointing to the fact that he was now about to become a father as motivation for him to finally change his ways. He also relied on good behavior and achievement awards from juvenile hall. The court rejected minors arguments: "Minor had live ammunition. He had possession of a weapon before. Now hes exhibiting a weapon in a reckless and dangerous manner. Courts [sic] exhausted its remedies at this time. His care, custody and control is taken from the parents . . . and committed to the . . . [CYA]. The rehabilitative and restorative and other programs would benefit more than any other program that is available."
We see no abuse of discretion on these facts. First, the court was free to reject the probation officers recommendation for camp placement. (Robert H., supra, 96 Cal.App.4th at p. 1329.) Second, the minors repeated failures despite three previous camp and other placements, combined with the increasing severity of his offenses, his continued gang affiliation, and his continuing disregard for the courts orders, support a finding that less restrictive alternatives would be ineffective and that he would likely benefit from CYA placement.
DISPOSITION
For the reasons set forth above, the order committing minor to CYA is affirmed.
We concur: COOPER, P.J., BOLAND, J.