Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. J193977, Theodore M. Weathers, Judge.
McCONNELL, P. J.
The juvenile court made a true finding that Gabriel P. possessed a deadly weapon (Pen. Code, § 12020, subd, (a)(4)). The court committed Gabriel to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (the Department) and set a maximum term of confinement of four years four months. Gabriel contends the trial court abused its discretion under Welfare and Institutions Code section 731, subdivision (b) by setting his term of confinement at the statutory maximum. We affirm the judgment.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
Before Gabriel committed the felony at issue here, he had numerous arrests and probation violations. In April 2001, when he was 12 years old, Gabriel admitted to battery stemming from an incident where he and his friend shot BB guns at a car, injuring an 11-year-old girl. In December 2001, Gabriel admitted to graffiti vandalism and the court placed him on probation.
In May 2002, Gabriel committed his first probation violation by leaving a court- ordered placement, failing to attend school and failing to comply with school rules. Shortly thereafter, Gabriel admitted receiving stolen property and the court ordered him committed to the Breaking Cycles program.
In October 2002, Gabriel violated probation for a second time. In November 2002, the court ordered him to undergo a psychiatric evaluation, continued him on probation and ordered him to remain in juvenile hall pending placement in the Breaking Cycles program. Four months later, Gabriel violated probation for a third time by being disruptive at the Juvenile Ranch Facility, defacing school property, stabbing an individual with a stick and stabbing another individual with a pencil. Ultimately, the court found Gabriel committed an assault with a deadly weapon, continued him on probation and placed him in a residential treatment facility.
In November 2003, after Gabriel admitted he provided false information to a police officer, the court placed him in a residential treatment facility. In March 2004, Gabriel committed his fourth probation violation, and the court reinstated probation and ordered him placed in a residential treatment facility for the third time. Three months later, Gabriel violated probation for the fifth time and shortly thereafter, the court placed him with his mother.
In October 2004, Gabriel, then 15 years old and on probation, admitted felony possession of a deadly weapon, the crime at issue in this case. (Pen. Code, § 12020, subd. (a)(4).) At the disposition hearing, the juvenile court continued Gabriel on probation and ordered him placed in a residential treatment facility in northern California.
In March 2005, the court found Gabriel violated probation for a sixth time by disobeying the rules of his group home. The court continued him on probation and committed him to Camp Barrett. In August 2005, after finding Gabriel violated probation for a seventh time by breaking the rules at Camp Barrett, the court reinstated him on probation and placed him in a residential facility. In March 2006, the court found Gabriel committed his eighth probation violation by absconding from his residential treatment facility. It reinstated probation and committed him back to Camp Barrett.
In September 2006, the court found Gabriel violated probation for the fourth time since his felony arrest and nine times in all. Consequently, the court ordered Gabriel committed to the Department and declined to exercise its discretion to impose less than the adult statutory maximum term under section 731, subdivision (b). The court set the maximum period of confinement at four years four months.
DISCUSSION
Gabriel claims the trial court failed to properly exercise its discretion pursuant to section 731, subdivision (b), which provides that a minor may not be held in physical confinement longer than the maximum term that could be imposed on an adult convicted of the same offense or longer than "'"the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court."'" (In re Carlos E. (2005) 127 Cal.App.4th 1529, 1541.) The juvenile court must exercise its discretion in determining the maximum term, although "[t]he Youth Authority Board retains the power, subject to the applicable rules and regulations, to determine the actual length of confinement at or below the ceiling set by the juvenile court and to determine the conditions of the minor's confinement." (Id. at p. 1542.) "[T]he statute does not require a recitation of the facts and circumstances upon which the trial court depends, or a discussion of their relative weight, [however,] the record must reflect the court has considered those facts and circumstances in setting its maximum term of physical confinement even though that term may turn out to be the same as would have been imposed on an adult for the same offenses." (In re Jacob J. (2005) 130 Cal.App.4th 429, 438, italics omitted.)
At the dispositional hearing, defense counsel argued Gabriel should not be committed to the Department because his offenses were relatively minor. In response, the court noted that although Gabriel had numerous minor violations, he failed at various rehabilitative placements and performed poorly on probation. Even though Gabriel only had one felony true finding, the court pointed out that "[Gabriel] simply cannot or does not want to abide by rules." Gabriel committed five crimes and nine probation violations, four of which occurred after the felony arrest in this case. Consequently, the court concluded Gabriel was a "danger to the community" and "not safe to send to programs." Therefore, the court decided Gabriel "would benefit from the structure, the education and the reformatory nature of the [Department]" and ordered him to serve four years four months, the statutory maximum.
In determining Gabriel's sentence, the court emphasized it was familiar with Gabriel and his cases. As to setting the maximum term, the court stated:
"The court does have the ability to set a lower term than the maximum four years and four months. The difficulty, though, is Gabriel has used up such a large chunk of the four years and four months, that the court, although it understands that it has the discretion to set a lower maximum under [section] 731(b) . . . the court's tentative is to decline to exercise its discretion because I want the Youth Authority to have as much time with which to work with Gabriel."
This record shows the court was aware of its discretion to set a lesser maximum term under section 731, subdivision (b) but declined to exercise that discretion. It is also evident from the record that the court's decision not to set a lower maximum term was based on the facts and circumstances of the case, including Gabriel's numerous prior violations and his lack of success at less restrictive placements. The court's referral to Gabriel's complete criminal history indicates it did not abuse its discretion and its decision to impose the maximum sentence was reasonable.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, J., O'ROURKE, J.