Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. 03CEJ601825-3. Martin Suits, Commissioner.
Judith Sanders, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Levy, J., Cornell, J.
FACTS AND PROCEEDINGS
Appellant, Isaac Z., was charged in a petition filed on January 30, 2007, pursuant to Welfare and Institutions Code section 602, with misdemeanor battery (Pen. Code, §242). The petition alleged Isaac committed this offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). On February 6, 2007, after waiving his constitutional rights and being advised of the consequences of his admission, Isaac admitted the battery allegation. The allegation that this offense was for the benefit of a criminal street gang was dismissed. The court found a factual basis for the admission.
Unless otherwise noted, all statutory references are to the Penal Code.
The probation officer’s report noted Isaac had prior adjudications in 2003 for misdemeanor vandalism (§ 594, subd. (a)) and in 2004 for felony burglary (§ 459). A petition was filed in 2005 for Isaac’s violation of the terms of his probation. On January 26, 2007, Isaac assaulted the victim at Juvenile Justice Campus (JJC) while playing football. Isaac held the victim’s shirt while another juvenile punched the victim with a closed fist. Isaac felt provoked because the victim called him a “bullfrog,” disrespecting the gang with which Isaac affiliates. Isaac told the probation officer he had finished “gang banging” and admitted making statements in support of the gang only to get moved out of the pod in which he was then housed.
Isaac denied gang membership, but told the probation officer he affiliates with the Eastside Fresno 14 Bulldogs gang. His moniker is Baby Boxer.
According to the probation report, Isaac was in good health and reported no history of psychological treatment. Isaac reported no history of mental health services or treatment with psychotropic medications. Isaac’s parents reported he was respectful and well behaved at home. Isaac usually adheres to curfew. Later in the report, however, the probation officer reported that Isaac told staff at another facility that he was suicidal and was transferred to the JJC. A few weeks later a health clinician recommended Isaac remain at the JJC because he threatened to harm himself or others if returned to the other facility.
Isaac failed to complete the Teilman/Forward Bound Academy (FBA) and the Teilman Adolescent Substance Abuse Counseling programs. Isaac failed to attend school as ordered in prior proceedings, failed to obey instructions of his supervising probation officer by absconding supervision, and failed to obey court orders by refraining from drug use. Isaac submitted positive drug tests in 2005. The probation officer recommended Isaac be committed to the California Youth Authority (CYA). Isaac had previously been committed to informal probation services, the boot camp program at Elkhorn Correctional Facility (ECF), the FBA program, and the ECF Delta program.
An earlier probation report from July 2005, noted Isaac had tested positive for use of marijuana, cocaine, and phencyclidine (PCP).
CYA has been recently renamed the Department of Corrections and Rehabilitation, Juvenile Justice. Because the parties and the juvenile court used the term CYA, we do so as well for consistency.
The probation officer believed Isaac would continue to reoffend and stated Isaac had refused to sign a no harm contract while housed at the ECF Delta program, which is the probation department’s highest level of incarceration and accountability. The probation officer stated Isaac was in need of a higher level of accountability and incarceration. The probation officer noted Isaac’s maximum period of confinement was three years six months.
Defense counsel filed a statement in mitigation. Counsel argued Isaac did not fit the profile of a hardened criminal, characterizing the battery on the football field as a scuffle. Counsel described Isaac as suicidal. Counsel noted Isaac had no prior record of violence, voluntarily acknowledged wrong doing, had two prior property offenses, spent over 500 days in custody, and was in need of mental health treatment.
At the dispositional hearing on March 28, 2007, defense counsel argued Isaac’s behavior was not the sort to warrant commitment to CYA. Counsel argued there were mental health issues and Isaac needed help. Except for a fight in a school yard, Isaac had no history of violence. Also, Isaac already spent 500 days in custody.
Discussion ensued between the court, the parties, and the probation officer concerning less restrictive alternatives to a commitment to CYA. The juvenile court, however, was concerned that Isaac engaged in a fight while in custody. The juvenile court announced a short recess. The court noted that the fight in question here was not a school yard fight, but a fight while Isaac was committed to the Delta program. The prosecutor noted that Isaac had spent time in custody in high security programs and was subject to a CYA recommendation because he had been shown to be violent.
During the hearing, the court noted Isaac was smirking and showing an attitude in court. The court noted the vulnerability of the victim, Isaac was on probation when he reoffended, Isaac’s prior performance on probation was unsatisfactory, and Isaac engaged in behavior indicating he was a serious danger to society. The court committed Isaac to CYA for the maximum term of confinement, three years six months and granted custody credits of 513 days. The court further noted it had considered less restrictive alternatives.
Isaac’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Isaac was advised he could file his own brief with this court. By letter on October 3, 2007, we invited Isaac to submit additional briefing. To date he has not done so.
DISCUSSION
Isaac was fully advised of the consequences of his plea, including the possibility of a commitment to CYA. He was fully advised of his constitutional rights. The juvenile court established, without objection from the parties, that there was a factual basis for Isaac’s admission of the allegations. Isaac was advised in the probation report that he faced a maximum term of confinement of three years six months, and lodged no objection to the length of the proposed commitment.
Isaac did request a less restrictive commitment than to CYA. The juvenile court and the probation officer considered and rejected less restrictive alternatives.
Under Welfare and Institutions Code section 725.5, the juvenile court must consider the circumstances and gravity of the offense committed by the minor. The court must consider the broadest range of information in determining how best to rehabilitate a minor and to afford him or her adequate care. A juvenile court’s order may be reversed on appeal only upon a showing that the court abused its discretion. Appellate courts 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. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.)
The record must be viewed in light of the purposes of juvenile law. As described in Welfare and Institutions Code section 202, those purposes include rehabilitation, treatment, guidance, punishment as a rehabilitative tool, and protection of the public. (In re Teofilio A. (1989) 210 Cal.App.3d 571, 575-576 (Teofilio A.).)
It is clear that a CYA commitment may be made in the first instance, without previous resort to less restrictive alternatives. (In re Asean D. (1993) 14 Cal.App.4th 467, 473; In re Tyrone O. (1989) 209 Cal.App.3d 145, 151.) The gravity of an offense, coupled with other relevant factors, is always a consideration. (In re Samuel B. (1986) 184 Cal.App.3d 1100, 1104, disapproved on another ground in People v. Hernandez (1988) 46 Cal.3d 194, 206, fn. 14.)
It is error for a juvenile court to fail to consider less restrictive alternatives to CYA commitment. (Teofilio A., supra, 210 Cal.App.3d at p. 577.) In Teofilio A., neither the juvenile court nor the probation report considered alternatives to CYA commitment. Here, in contrast to Teofilio A., both the juvenile court and the probation officer considered less restrictive alternatives to a commitment to CYA. The manner of Isaac’s offense was disturbing. He held the victim while another minor punched him. Isaac had spent most of his confinement time in the most restrictive housing due to his violent tendencies. This included a pattern of gang affiliation that led to the most current petition. We do not find that the juvenile court abused its discretion in committing Isaac to CYA.
After independent review, we conclude that there are no arguable or factual issues.
DISPOSITION
The judgment is affirmed.