Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Merced County. Super. Ct. No. J2172 Thomas S. Burr, Commissioner.
Before Vartabedian, Acting P.J., Cornell, J. and Gomes, J.
Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
This is an appeal from a disposition order in a Welfare and Institutions Code section 602 proceeding. The juvenile court committed appellant Gilberto L. to the Department of Corrections and Rehabilitation, Juvenile Justice (the department). Appellant contends this commitment was an abuse of discretion and that he received insufficient credit for predisposition custody. Respondent concedes the latter point. We conclude the juvenile court did not abuse its discretion in the disposition; we will modify the custody credits and affirm the commitment order as modified.
Facts and Procedural History
Appellant’s brother, C.L., was supposed to bring some girls to a local park for a drug deal. Appellant and C.L. agreed that when the girls arrived appellant would rob them. Appellant hid behind a park building, armed with a pellet pistol. He heard a female voice and thought it was one of his planned victims. He came from behind the building wearing a mask and pointing the pistol at the victim. Appellant said, “Gimme all your shit, you fucking nigger.” Appellant took the victim’s purse and made her empty her pockets; he made her remove her earrings, which he took.
Appellant fled. The victim, who had not been brought to the park by C.L. and had nothing to do with the planned drug deal, gave chase and saw appellant run into a particular apartment. Appellant was eventually arrested and the victim’s property was recovered.
The district attorney filed a petition pursuant to Welfare and Institutions Code section 602, alleging appellant had committed robbery (count 1, Pen. Code, § 211) and conspiracy to commit a felony (count 2, Pen. Code, § 182, subd. (a)(1)). Appellant admitted count 1; count 2 was dismissed on the prosecutor’s motion.
At the disposition hearing, appellant requested placement in the probation department’s long-term residential program. The probation officer recommended commitment to the department, in part because of the seriousness of the offense, appellant’s gang involvement, and his criminal sophistication.
The juvenile court found that local programs were inappropriate and that only the Division of Juvenile Justice had “the proper services” that were “absolutely necessary” for appellant’s rehabilitation. The court committed appellant to the department for a maximum term of five years and credited appellant for 35 days of local custody. Appellant filed a timely notice of appeal.
Discussion
Appellant contends the court abused its discretion in committing appellant to the the department because the court stated (in warning appellant that he had to take responsibility for himself in order to obtain the benefits offered by the department): “[There is at the department facilities] a concentration of gang bangers and if you fall in with gangs at the Division of Juvenile Justice you are not going to benefit from this. All you’re going to do is get a master’s degree in robbery or criminality .…” Appellant contends that, if the court finds that appellant will not benefit from placement at the department, the court is precluded by law from making that placement.
This argument ignores the record before the juvenile court and the juvenile court’s actual findings. Appellant told the probation officer his crime was minor compared to what he used to do when living in Chicago and that Merced gangs were “petty” compared to the gangs he ran with in Chicago. Appellant showed a commitment to the gang lifestyle, telling the probation officer “he would someday like to go back [to Chicago] to continue his gang association.”
“The appellate court reviews a commitment decision for abuse of discretion, indulging all reasonable inferences to support the juvenile court’s decision. [Citations.] Nonetheless, there must be evidence in the record demonstrating both a probable benefit to the minor by a [department] commitment and the inappropriateness or ineffectiveness of less restrictive alternatives. [Citations.] A [department] commitment may be considered, however, without previous resort to less restrictive placements.” (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.)
In this case, the juvenile court thoroughly considered placement in the county’s long-term residential program but rejected that placement because appellant needed more time in custody to benefit from the educational and reformatory programs available. The court concluded the community needed greater protection from appellant than the local program could offer. These conclusions were fully supported by the record: When appellant lived in Chicago, his mother placed him at Girls and Boys Town, in Nebraska, because he had fallen in with the Latin Saints gang. While there for eight months, appellant apparently was well-behaved and made progress. Nevertheless, after his father was deported and his mother moved to Merced, taking appellant from Girls and Boys Town, appellant immediately regressed. He did not attend school regularly and committed the robbery that resulted in the present case. Accordingly, the court properly concluded that the local program was not long term enough to have a lasting impact on appellant.
The court also determined that the department offered educational and remedial programs that would benefit appellant if appellant participated in them and stayed away from gang affiliations. This was only a statement of the obvious fact that whether at the department, in local placement, or in his home community appellant would not succeed in building a crime-free life if he continued associating with gangs. (See In re Gerardo B. (1989) 207 Cal.App.3d 1252, 1258.) The court is not required to find that a minor will be benefited by commitment to the department, but only that his mental and physical condition and qualifications are such as to render it probable that he will be benefited by the commitment. (Welf. & Inst. Code, § 734.) Appellant clearly has the mental and physical capacity to be benefited by the programs at the department. The trial court did not abuse its discretion.
Appellant also contends the juvenile court erred in calculating his predisposition confinement credit. Respondent agrees, noting that the court relied on the probation officer’s report, which, in turn, was based on the date scheduled for the disposition hearing, October 3, 2007. In fact, the hearing was rescheduled for October 10, 2007. As a result, appellant was entitled to 42 days of custody credit, not the 35 days stated by the court.
Disposition
The order of October 10, 2007, committing appellant to the department is modified in paragraph 7 of the order to provide credit for 42 days in secure custody, instead of the 35 days of credit stated in the order. As modified, the order is affirmed. On remand, the juvenile court shall provide a copy of the order as modified to the department.