Opinion
F039373.
7-16-2003
In re FRANCISCO E., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO E., Defendant and Appellant.
Valerie Hriciga, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, J. Robert Jibson and Carlos A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Buckley, J. and Cornell, J.
Appellant Francisco E. was adjudged a ward of the court in 1999 and placed on four years probation. In 2000 and 2001, a petition was filed alleging Francisco committed misdemeanor battery on the mother of his child. At the contested hearing, the victim recanted her prior reports of battery and asserted her Fifth Amendment right against self-incrimination when questioned concerning one of the alleged instances of battery. Pursuant to Evidence Code section 1370, the investigating officer gave testimony concerning statements the victim made during her report the day following one of the alleged instances of battery.
Reference to code sections hereafter are to the Evidence Code unless otherwise specified.
Francisco contends on a number of grounds that the requirements of section 1370 were not satisfied and he was prejudiced by the erroneous admission of testimony pursuant to that section. He also alleges the juvenile court abused its discretion by committing him to the California Youth Authority (CYA) instead of a less restrictive alternative. He also claims that he is entitled to additional custody credits.
We will conclude the investigating officers testimony was properly admitted pursuant to section 1370. We also will conclude the juvenile court did not abuse its discretion in committing Francisco to the CYA. Finally, we will remand the case to the juvenile court to review his custody credits.
PROCEDURAL SUMMARY
On November 9, 1998, a petition was filed in Fresno County pursuant to Welfare and Institutions Code section 602 alleging a single count of assault with a deadly weapon by means of force likely to produce great bodily injury, in felony violation of Penal Code section 245, subdivision (a)(1). On March 10, 1999, a petition was filed alleging a single count of terrorist threat, in felony violation of Penal Code section 422. On June 11, 1999, a petition was filed alleging a single count of assault with a deadly weapon by means of force likely to produce great bodily injury, in felony violation of Penal Code section 245, subdivision (a)(1).
On July 6, 1999, in a negotiated plea agreement, Francisco entered a plea of guilty to a single count of assault with a deadly weapon by means likely to produce great bodily injury, in felony violation of Penal Code section 245, subdivision (a)(1), as alleged in the petition filed on November 9, 1998. The remaining two petitions were dismissed. Francisco was adjudged a ward of the court and was committed to a local residential program for a period not to exceed 365 days. The court noted the maximum period of confinement was four years.
On September 7, 2000, a petition was filed in Fresno County alleging Francisco committed a single count of spousal battery on August 14, 2000, in violation of Penal Code section 243, subdivision (e)(1), a misdemeanor ("A" petition). On January 18, 2001, a second petition was filed alleging Francisco committed the same crime against the same victim a second time on November 19, 2000 ("C" petition). On March 26, 2001, following a contested hearing, the allegations set forth in both the A and C petitions were found true.
At sentencing, Franciscos parole, which had been imposed pursuant to the 1999 adjudication, was revoked and the indicated term of four years was imposed. Additional consecutive terms of four months were imposed on each of the misdemeanor convictions on the A and C petitions. Francisco was committed to the CYA to serve a total term of four years eight months.
FACTUAL SUMMARY
The petition filed in 1998 that alleged a single count of aggravated assault stemmed from an incident where Francisco drove an automobile at an individual in an apparent attempt to injure the intended victim. The two petitions filed in 1999 that were dismissed related to instances where Francisco threw a brick at the head of an intended victim and threatened another with murder or severe bodily injury. Further facts relating to these petitions and the events surrounding the guilty plea are not pertinent to this appeal.
Franciscos primary claim of error pertains to evidence admitted during the adjudication on the A and C petitions in March of 2001. The A petition was the result of an instance where on August 14, 2000, Francisco slapped B.S., his girlfriend and mother of his child, because he thought she was talking to other men. The C petition was a result of an instance where Francisco confronted B.S. in a public park and became angry because he thought his baby was not sufficiently clothed for the cold November evening. Francisco allegedly forcibly removed the baby from B.S.s grasp and pulled B.S. to a standing position by her hair. In a later confrontation that evening, Francisco allegedly grabbed B.S. by the wrists and attempted to force her into his home. S.R. and her sister, Y.R., who were friends of B.S.s, testified to the events of November 19, 2000, essentially as set forth above.
At the hearing in March of 2001, B.S. portrayed the events of November 19, 2000, as essentially benign. She testified Francisco did not pull her hair or grab her by the wrists. She also claimed she willingly gave the baby to Francisco. She stated she did not remember any prior contrary statements she may have made to the police. B.S. attributed the allegations against Francisco contained in the C petition to S.R., who B.S. claimed did not approve of Francisco.
B.S. also denied Francisco had ever slapped her in the past. When asked whether she had reported being slapped by Francisco on August 14, 2000, as alleged in the A petition, B.S. exerted her Fifth Amendment right against self-incrimination. She declined to answer any questions relating to her statements to police on the day following the alleged slapping event.
Carlos Dematos, a police officer for the City of Firebaugh, testified as to statements made by B.S. the day following the alleged slapping incident. Prior to the testimony, the People moved pursuant to sections 1370 and 240 to admit hearsay statements of a nonavailable witness that purport to narrate the infliction or threat of physical injury on the declarant. Francisco objected on grounds the report was not taken near in time to the purported infliction of injury and lacked the required indicia of trustworthiness. The objection was overruled and the motion to admit the evidence was granted.
Dematos testified he interviewed B.S. in the lobby of the police station the day following the alleged incident. S.R. was with B.S. at the police station. B.S. told Dematos that Francisco had grabbed her and slapped her because he thought she was speaking to other men. She told Dematos she began crying as a result of the slap. B.S. also told Dematos that Franciscos sisters, P.E. and R.E., were present when the incident occurred.
Dematos testified he interviewed P.E. and R.E. at their home about 20 minutes after the interview with B.S. P.E. told Dematos that Francisco had grabbed B.S. by the arms and slapped her face. Dematos also testified that although R.E. stated she did not see the slap, she did hear the slap and she saw B.S. crying.
At trial, P.E. denied remembering telling Dematos that Francisco had slapped B.S. She stated that to the extent she might have made any statements indicating Francisco slapped B.S., she did so because she was mad at Francisco and she fabricated the statements.
At trial, R.E. first testified she had told Dematos she heard a slap but did not see Francisco slap B.S. On further examination, she denied remembering hearing a slap or telling Dematos that she had heard one. She denied having seen B.S. cry as a result of a slap.
DISCUSSION
Francisco raises three issues on appeal. First, he alleges Dematoss testimony recounting the statements B.S. made concerning the alleged slap were admitted in violation of both the terms of section 1370 and Franciscos Sixth Amendment right of confrontation. Second, Francisco alleges the juvenile court abused its discretion by committing him to the CYA instead of a less restrictive environment. Finally, he claims that he did not receive the proper amount of custody credit.
I. Hearsay Testimony Admitted Pursuant to Section 1370
A witness who specifically invokes the Fifth Amendment privilege against self-incrimination, and who is entitled to invoke the privilege, is unavailable to testify within the meaning of section 240. (People v. Cudjo (1993) 6 Cal.4th 585, 607, 863 P.2d 635.) Neither party disputes that B.S. was legally unavailable when she invoked her Fifth Amendment privilege with respect to questions concerning the alleged slap.
Section 1370 was enacted in 1996 to provide a limited exception to the general hearsay rule in situations where physical abuse was either threatened or perpetrated and the victim is legally unavailable to testify at trial. The statute provides, in its entirety:
"(a) Evidence of a statement by a declarant is not made inadmissible by the hearsay rule if all of the following conditions are met:
"(1) The statement purports to narrate, describe, or explain the infliction or threat of physical injury upon the declarant.
"(2) The declarant is unavailable as a witness pursuant to Section 240.
"(3) The statement was made at or near the time of the infliction or threat of physical injury. Evidence of statements made more than five years before the filing of the current action or proceeding shall be inadmissible under this section.
"(4) The statement was made under circumstances that would indicate its trustworthiness.
"(5) The statement was made in writing, was electronically recorded, or made to a physician, nurse, paramedic, or to a law enforcement official.
"(b) For purposes of paragraph (4) of subdivision (a), circumstances relevant to the issue of trustworthiness include, but are not limited to, the following:
"(1) Whether the statement was made in contemplation of pending or anticipated litigation in which the declarant was interested.
"(2) Whether the declarant has a bias or motive for fabricating the statement, and the extent of any bias or motive.
"(3) Whether the statement is corroborated by evidence other than statements that are admissible only pursuant to this section.
"(c) A statement is admissible pursuant to this section only if the proponent of the statement makes known to the adverse party the intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings in order to provide the adverse party with a fair opportunity to prepare to meet the statement." (Amended by Stats. 2000, ch. 1001, § 2.)
A. Waiver
The People assert Francisco failed to raise the confrontation clause argument and failed to assert his argument pertinent to infliction of injury at trial and has consequently waived those arguments.
At trial, Franciscos initial objection was on general grounds of lack of foundation. The court asked which foundational elements were missing and Franciscos attorney offered to "go down the list." The court then stated its opinion that the "statement purports to narrate, describe or explain the infliction of threat of physical injury upon the declarant." Franciscos attorney then went on to make specific objections on grounds the report was not made at or near the time of the alleged injury and that evidence of the reliability of the hearsay testimony was lacking.
It is apparent from the courts statement that it had considered the same list of foundational requirements as Francisco and had concluded a slap constitutes physical injury or the threat of physical injury to the extent necessary to satisfy the requirement set forth in section 1370, subdivision (a)(1). It is therefore apparent any further objection by Francisco on that ground would have been futile. Failure to make a specific argument is not waiver where the argument would have been futile. (People v. Whitt (1990) 51 Cal.3d 620, 655, 274 Cal. Rptr. 252, 798 P.2d 849.) Although we will agree that a slap does constitute physical injury for the purposes of this section, we conclude Franciscos argument on that issue is not waived.
At trial, Francisco did not object to the admission of B.S.s statement to Dematos on grounds it violated his Sixth Amendment right to confront witnesses. It is well settled a defendant waives any confrontation clause claim on appeal where he fails to object on this ground below. (People v. Gutierrez (2000) 78 Cal.App.4th 170, 177; see also People v. Alvarez (1996) 14 Cal.4th 155, 186, 926 P.2d 365.) However, as we will discuss infra, the issue of whether the foundational requirements of section 1370 are met essentially resolves the question of whether Franciscos Sixth Amendment right to confront witnesses was abridged. Because the resolution of both issues requires the analysis of the same facts, we will briefly address Franciscos confrontation clause argument in the interest of promoting efficient use of judicial resources.
B. A Slap Is Physical Injury for Purposes of Section 1370
There are few published cases that deal with section 1370 and none to date have dealt with the question of the extent of physical injury required to satisfy subdivision (a)(1) of this section.
"`The primary duty of a court when interpreting a statute is to give effect to the intent of the Legislature, so as to effectuate the purpose of the law. [Citation.] To determine intent, courts turn first to the words themselves, giving them their ordinary and generally accepted meaning. [Citation.] If the language permits more than one reasonable interpretation, the court then looks to extrinsic aids, such as the object to be achieved and the evil to be remedied by the statute, the legislative history, public policy, and the statutory scheme of which the statute is a part. [Citation.] ... Ultimately, the court must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and it must avoid an interpretation leading to absurd consequences. [Citation.] [Citation.]" (People v. Hard (2003) 109 Cal.App.4th 140, 147-148.)
We agree with the Peoples observation that Franciscos reliance on People v. Abrego (1993) 21 Cal.App.4th 133 is misplaced. Abrego examined the meaning of the term "traumatic condition" in the light of a claim of insufficient evidence to sustain a prosecution for felony spousal abuse under Penal Code section 273.5. The "traumatic condition" element sets the crime of felony spousal abuse apart from the lesser crime of simple battery of a spouse, cohabitant, or mother of the child as defined by Penal Code section 243, subdivision (e)(1).
The hearsay exception contained in section 1370 is not restricted by its terms to felony prosecutions. It resides in a portion of the Evidence Code that deals specifically with evidence of physical abuse. Since the statute is not restricted to felony prosecutions, we must presume the Legislature intended that it would be applicable in all cases where there was alleged physical abuse whether the conduct charged amounted to a felony or a misdemeanor. To interpret the statute in the way Francisco urges, that is, to require evidence of an injury resulting in a traumatic condition, would preclude the use of the statute in cases where the alleged conduct only amounted to a misdemeanor. We must reject Franciscos contention because to accept it would result in the limitation of the applicability of the statute to an extent clearly not intended by the Legislature.
Misdemeanor battery upon a spouse, cohabitant or parent of a child as prohibited by Penal Code section 243, subdivision (e)(1) requires nothing more than the unlawful application of force or violence. (Pen. Code, § 242.) Since section 1370, by its plain language, is applicable to situations where there is no injury at all but only the threat of injury, and since we have concluded the statute is applicable in misdemeanor prosecutions, it follows that even de minimis injury must satisfy the provisions of subdivision (a)(1). A slap is such an injury because it constitutes the violent application of unlawful force. No physical trauma need be evident.
On the basis of the foregoing, we conclude the juvenile court did not err by determining the hearsay testimony fulfilled the requirement of section 1370, subdivision (a)(1).
C. At or Near the Time of Injury or Threat
Francisco next challenges the juvenile courts determination that Dematoss testimony described statements made by B.S. "at or near the time of the infliction or threat of physical injury." At issue is whether the space of a day between the alleged battery and the report to the police is within the timeframe contemplated by the statute.
Again, as Francisco notes, there is little case law addressing this issue. In People v. Hernandez (1999) 71 Cal.App.4th 417 (Hernandez), Division Two of the Fourth District Court of Appeal determined that a police report that was given directly following police response to a 911 call was properly admitted in a prosecution for felony spousal abuse under the terms of section 1370. (Id. at pp. 419, 425.) On the other hand, the Third District Court of Appeal, in People v. Kons (2003) 108 Cal.App.4th 514 (Kons), held that a statement made by a victim "one or two days" following a shooting was improperly admitted by the juvenile court. (Id . at pp. 523, 524.)
Significantly, neither of these cases made the determination of the admissibility of the hearsay statement solely on the basis of the elapsed period of time between the alleged incident and the report to the police. Rather, both cases considered the timeliness of the police report in the context of the overall reliability of the report. Where the facts and circumstances of the report to the police were sufficient to establish trustworthiness, the statements were held properly admitted. And where trustworthiness remained questionable following an examination of all the facts, the report was held inadmissible. (See Hernandez, supra, 71 Cal.App.4th at p. 425 [holding police report properly admitted]; Kons, supra, 108 Cal.App.4th at p. 524 [holding police report unreliable].)
The provisions of the "spontaneous statement" exception to the general hearsay rule are not instructive for purposes of determining how contemporaneous a statement must be to satisfy the requirement of section 1370, subdivision (a)(3). Where a hearsay statement is made spontaneously and admitted pursuant to section 1240, the statement is considered reliable because the declarants spontaneity means the he "has not had time to reflect and fabricate." ( § 1240; People v. Pensinger (1991) 52 Cal.3d 1210, 1266, 278 Cal. Rptr. 640, 805 P.2d 899.)
Conversely, the trustworthiness of hearsay statements admitted pursuant to section 1370 is not presumed because of the temporal proximity of the hearsay statement to some stressful event. Rather, this section imposes its own internal set of standards aimed at assuring reliability and requires that the court make an independent determination that the proffered hearsay statement bears the required indicia of trustworthiness.
The fact that section 1370 explicitly provides internal criteria by which the trustworthiness of the hearsay statement is to be evaluated implies a legislative intent to avoid the application of rigid standards of spontaneity in the determination of admissibility. The structure of the statute, combined with its apparent purpose, leads us to conclude that the temporal proximity of the declarants hearsay statement is but one factor to be considered in conjunction with others to reach a judicial determination of the overall trustworthiness of the hearsay statement.
In light of the above, we conclude it cannot be said as a matter of law that any particular number of hours or days of elapsed time between the alleged event and the proffered hearsay statement automatically renders the statement beyond the temporal limits provided by the statute. We reject Franciscos argument that the testimony that was admitted pursuant to section 1370 was excludable because it was not made at or near the time of the alleged injury. We follow the examples set in both Hernandez and Kons and give consideration to the timeliness of the hearsay statement in the context of Franciscos challenge to the statements trustworthiness.
D. Trustworthiness of the Hearsay Statement
Section 1370, subdivision (b) sets forth specific criteria for the assessment of trustworthiness of the hearsay statement. The nonexclusive list includes consideration of whether the statement was made in anticipation of future litigation, whether there was motive for bias and whether there was independent corroboration of the statement.
When a statement that alleges criminal conduct is made to a police officer, there is an expectation on the part of the reporting party that the police will act on the report by arresting the offending party. Thus, reports of criminal conduct by the victims to police are, by their nature, made in anticipation of future litigation in which the reporting party has an interest as the victim. While it is true, as the court in Kons observed, this factor alone does not establish trustworthiness. It is also true, as the court in Hernandez observed, the existence of criminal sanction for filing a false report, and the presumed neutrality of the police, argue strongly for the reports reliability. This particularly is true where, as here, the report was not solicited. (Hernandez, supra, 71 Cal.App.4th at p. 424, fn. 6; see also Kons, supra, 108 Cal.App.4th at p. 525 [holding a police report not reliable where it was solicited by police from a reluctant victim].)
The issue of the contemporaneousness of the alleged act and the hearsay statement to police takes on critical importance when we assess the effect of possible bias on the statement. Where bias is identified that favors the hearsay statement, any significant passage of time from the event to the hearsay statement favors the conclusion the statement was influenced by the bias because the declarant would have had time to concoct a story that serves his biased interest. Where, however, bias is identified that would favor a different hearsay statement than the one that was made, the passage of time between the event and the statement does not contradict the conclusion the hearsay statement was trustworthy.
Francisco makes no serious claim that B.S. was under the influence of a bias at the time that she made the police report that would have made a false report likely. He points to a passage in the record where B.S. testified he and S.R. had an argument a long time ago that "started everything." However, we note that B.S. also testified she loved Francisco. Furthermore, there is nothing at all in the testimony to suggest S.R. had such an influence on B.S. that she could have influenced her to make a false report of criminal activity against Francisco.
If there was any bias at play here, the facts and logic dictate that the bias would have favored a different rendition of the facts than B.S. gave to Dematos. From this we conclude the passage of a day between the alleged slap and the report to Dematos did not affect the reliability of the report B.S. gave to Dematos. We further conclude considerations of possible bias in this case do not undermine the conclusion the statement was trustworthy.
The statements P.E. and R.E. gave to Dematos shortly after B.S. gave her statement were admitted as impeachment testimony and corroborated B.S.s report. P.E. and R.E.s later recantations of their statements at trial are not at all convincing. Both admitted at trial they loved their brother and they offered only the flimsiest of pretexts to explain their claimed motivation to lie to Dematos.
When we consider the criteria for trustworthiness set forth in section 1370, subdivision (b), we conclude, as the juvenile court did, the hearsay statements made by B.S. to Dematos were trustworthy as required by subdivision (a)(4) of this section.
E. The Confrontation Clause Was Not Violated
Both Hernandez and Kons explored the issue of whether evidence admitted pursuant to section 1370 violates the confrontation clause. Those analyses need not be repeated here. For purposes of our discussion, the general framework for the analysis of confrontation clause claims set forth in Ohio v. Roberts (1980) 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (Roberts) is sufficient.
"When a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause [of the Sixth Amendment] normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate indicia of reliability. Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception." (Roberts, supra, 448 U.S. at p. 66.) The particularized guarantees of trustworthiness must be based on the circumstances "that surround the making of the statement and that render the declarant particularly worthy of belief." (Idaho v. Wright (1990) 497 U.S. 805, 819, 111 L. Ed. 2d 638, 110 S. Ct. 3139.)
In the context of a determination of whether section 1370 violated the confrontation clause of the Sixth Amendment, the Hernandez court suggested the provisions of that section were similar to the deeply rooted hearsay exception for spontaneous statements. (Hernandez, supra, 71 Cal.App.4th at p. 424.) The court in Kons, addressing the same issue, disagreed and held section 1370 was not a firmly rooted hearsay exception for confrontation clause purposes. (Kons , supra, 108 Cal.App.4th at p. 523.) The court noted that although there may be, in some cases, similarities between statements admitted as spontaneous statements and statements admitted under section 1370, if the similarity were always close, there would be no need for section 1370. (Ibid .)
Section 1240, the "spontaneous statement exception," provides: "Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [P ] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [P ] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception."
We agree with the Kons court in concluding section 1370 is not a deeply rooted hearsay exception. Whether its application violated Franciscos right to confront witnesses therefore depends on whether the proffered statement bears adequate indicia of reliability.
Both Hernandez and Kons recognized that the provisions of section 1370 reflect legitimate factors that, if true, tend to establish the requisite indicia of reliability. (Hernandez, supra, 71 Cal.App.4th at p. 424; Kons, supra, 108 Cal.App.4th at p. 522.) We have previously discussed each of the factors and have concluded that for each factor the facts of this case lead to the conclusion B.S.s statement to Dematos was trustworthy. While we stop short of concluding the requirements set forth in section 1370 will, in all cases, establish adequate indicia of reliability, we do conclude in this case that the facts establish both the trustworthiness of the hearsay statement as required by section 1370 and the adequate indicia of reliability as required by Roberts. We consequently reject Franciscos claim of violation of his right to confront witnesses.
II. The Appropriateness
of the Sentence
Francisco contends the juvenile court abused its discretion by committing him to the CYA instead of a less restrictive local alternative. The basis of Franciscos claim appears to be twofold. First, he contends that his past record on parole and the nature of the crimes committed, that is, the misdemeanor spousal batteries, are not of a nature that would warrant CYA confinement. Second, he contends the juvenile court erroneously disregarded the recommendations of the alternative sentencing report, which recommended a combination of probation, electronic monitoring and residential programs.
We are required to uphold the dispositional choice of the juvenile court when there is substantial evidence to support it. (In re Michael D. (1987) 188 Cal. App. 3d 1392, 1395, 234 Cal. Rptr. 103.) "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. [Citations.] In determining whether there was substantial evidence to support the commitment, we must examine the record presented at the disposition hearing in light of the purposes of the Juvenile Court Law." (Ibid. ; In re Lorenza M. (1989) 212 Cal. App. 3d 49, 53, 260 Cal. Rptr. 258.)
Under Welfare and Institutions Code section 202, as amended in 1984, the objectives of the juvenile court law expressly include "protection and safety of the public" as well as rehabilitation of the minor, and the statute recognizes punishment as a rehabilitative tool. Nevertheless, an order committing a minor to the CYA must be supported by evidence demonstrating that (1) the minor probably will benefit from such commitment, and (2) less restrictive alternatives are ineffective or inappropriate. (Welf. & Inst. Code, § 734; In re Teofilio A. (1989) 210 Cal. App. 3d 571, 576, 258 Cal. Rptr. 540.)
The juvenile court is not required to exhaust all less restrictive placements before committing a delinquent minor to the CYA. (In re Gerardo B. (1989) 207 Cal. App. 3d 1252, 1258-1259, 255 Cal. Rptr. 339.) "Circumstances in a particular case may well suggest the desirability of a [CYA] commitment despite the availability of such alternative dispositions as placement in a [local facility]." (In re John H. (1978) 21 Cal.3d 18, 27.) Circumstances indicating that a less restrictive placement would be ineffective or inappropriate may include the persons age (Welf. & Inst. Code, § 725.5) and attitude (In re Michael D., supra, 188 Cal. App. 3d at p. 1397); the nature, duration and context of the delinquent conduct (Welf. & Inst. Code, § 725.5; In re Tyrone O. (1989) 209 Cal. App. 3d 145, 152-153, 257 Cal. Rptr. 134); the minors response to any prior intervention (ibid.; In re Lorenza M., supra, 212 Cal. App. 3d at p. 58); the need to hold the minor accountable for his or her actions (Welf. & Inst. Code, § 202, subd. (b)); and the communitys interest in protection from crime (Welf. & Inst. Code, § 202, subd. (a); In re Lorenza M., supra, 212 Cal. App. 3d at pp. 57-58). Commitment to the CYA is proper if less restrictive dispositions would be ineffective or inappropriate and if there is substantial evidence of probable benefit from the CYA. (In re Lorenza M., supra, 212 Cal. App. 3d at p. 58.)
The record is replete with evidence that supports the juvenile courts sentencing choice and reflects the courts careful consideration of the available alternatives. The psychological study concluded that Franciscos interests would best be served by a highly structured and restricted environment. The report also noted that because of deficits in his mental and emotional development, he poses a continuing threat to the safety of others. The reports concerns are corroborated by Franciscos extensive record of criminal behavior that evinces Franciscos tendency to interact violently with his peers.
Francisco also seems to ignore the fact that the current commitment to the CYA was in consideration of both the misdemeanor battery convictions and his prior conviction for felony aggravated assault. The current sentence properly reflects the serious nature of Franciscos felony conviction, in addition to reflecting his lack of success on parole. We also note that as of the date of Franciscos commitment, he was no longer a minor; a fact that argues against less restrictive sentencing.
We conclude that the record reflects the juvenile courts careful consideration of available sentencing alternatives and abundant evidence supports the juvenile courts choice of the CYA confinement from among those alternatives.
III. Custody Credits
The juvenile court awarded Francisco with 124 days of custody credit at his second dispositional hearing. It appears that this figure consists of 85 days of prehearing credit from the first dispositional hearing and 39 days of prehearing credit from the second dispositional hearing. It does not appear from the record that Francisco received any credit for the time he was committed to the C. K. Wakefield program after the first dispositional hearing. Francisco requests that the matter be remanded to the juvenile court for a review of the custody credit to ensure that he received all to which he is entitled. The People agree. We will grant the request.
DISPOSITION
The case is remanded to the juvenile court to review the custody credit and grant credit for such time as Francisco was committed to the C. K. Wakefield program. In all respects the judgment is affirmed.
The petition for rehearing is denied.