Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County. Lloyd L. Hicks, Judge. Super. Ct. No. JJD056416.
Patricia L. Brisbois, 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, Harry Joseph Colombo and John G. McLean, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Cornell, J. and Gomes, J.
This is an appeal from a disposition order committing appellant Joseph V. to the Department of Corrections and Rehabilitation, Juvenile Justice (the department). Appellant contends the juvenile court abused its discretion in committing appellant to the department instead of a local program and that the court erred in calculating appellant’s maximum period of confinement. Respondent concedes the second point, but contends commitment to the department was not an abuse of discretion. We agree with respondent, modify the order to reduce the maximum period of confinement, and affirm the order as modified.
Facts and Procedural History
The present disposition order was entered on 16-year-old appellant’s fifth sustained petition under Welfare and Institutions Code section 602. Appellant’s first Welfare and Institutions Code section 602 petition was filed when he was 12 years old; the petition was sustained on an amended count of disturbing the peace (Pen. Code, § 415). A second petition was filed when appellant was 13, alleging he pulled a knife (with a three-inch blade) on another boy and struck the boy with his fists. The petition was sustained on misdemeanor counts of assault (Pen. Code, § 245) and battery (Pen. Code, § 242). While that petition was pending, a third petition was filed alleging appellant punched a different boy because appellant thought he was wearing the colors of a rival gang. The petition was sustained on one count of misdemeanor battery on school property (Pen. Code, § 243.2, subd. (a)). When appellant was 16, a fourth petition was filed after a probation search revealed that appellant was carrying a 10-inch “combat” style knife, spray paint, and other gang- and vandalism-related items. The petition was sustained on one felony count of carrying a dirk or dagger (Pen. Code, § 12020, subd. (a)(4)) and one misdemeanor count of possession of vandalism tools (Pen. Code, § 594.2, subd. (a)). On each of the four petitions, appellant was placed on probation. On the fourth petition, the probation officer stated that he would have recommended a custodial program, but did not because appellant’s father had recently died and he felt appellant needed to be with his family.
Two weeks after the disposition hearing on appellant’s fourth petition, appellant and his friends went on a shooting spree, firing at three occupied houses. At one house, four persons were standing out front and appellant’s group shouted insults and gang-related taunts prior to the shooting. Appellant denied he personally fired the weapon at any of the houses; he later admitted hiding the weapon in his sister’s bedroom. The present petition was sustained on two felony counts of shooting at an inhabited dwelling house (Pen. Code, § 246), one felony count of grossly negligent discharge of a firearm (Pen. Code, § 246.3), and one felony count of disturbing the peace (Pen. Code, § 415).
The probation officer’s report prepared for the disposition hearing in the present case stated that appellant had dropped out of school, had alcohol and substance abuse problems, and was heavily involved in gang activities. The report stated that appellant “has exhausted all local resources and it appears that the minor is in need of a more structured setting than local placements can provide.” The probation officer recommended commitment to the department.
At the hearing, appellant argued for commitment to the county’s long-term program. His attorney acknowledged that the program would normally last for only five months, but urged to court to specially commit appellant to the program for one year. Counsel particularly emphasized litigation over the conditions at the department’s youth facilities and the department’s failure to correct these problems: “So sending someone to CYA [the former name for Juvenile Justice facilities] at this point in time is similar to sending them to Siberia or the gulags in Russia.… [I]t’s a lousy, lousy system.”
The court determined that local programs were inappropriate because of the seriousness of the present offenses and appellant’s recidivist history. The court stated: “[T]his isn’t a perfect world, and it’s not a perfect system. And while we might wish there were some intermediate programs, there aren’t.” The court concluded: “And the goal here is rehabilitation. But I really don’t think that given the history and given his lack of acceptance of the need to change that we have anything locally that could accommodate the situation. So I don’t think I really have any choice but to follow the recommendation” for commitment to the department. The court committed appellant to the department and determined that the maximum period of confinement would be 16 years, 11 months.
Appellant filed a timely notice of appeal.
Discussion
Appellant contends the order is not supported by substantial evidence that, in the language of Welfare and Institutions Code section 734, “the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefited by the reformatory educational discipline or other treatment provided” by the department. Appellant contends a lack of such evidence is inherent in the juvenile court’s comment that the absence of “intermediate programs” left it “no choice” but to commit appellant to the department.
An appellate court reviews a commitment decision for abuse of discretion. While we make all reasonable inferences to support the juvenile court’s decision, there must be substantial evidence in the record demonstrating both a probable benefit to the minor from the commitment and the inappropriateness of less restrictive dispositions. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.)
There was ample evidence that local programs were not appropriate for appellant. He was deeply involved in local gang affairs. He had been involved in criminality since he was 12 years old and in substance abuse since he was 13. He had been on juvenile probation for several years. Nevertheless, his criminal activity and gang involvement steadily increased in seriousness. The evidence clearly supports the court’s determination that appellant needed long-term treatment in a secure facility if there was to be any chance for his rehabilitation.
Appellant does not seriously contest the foregoing. Instead, he argues that the court felt it had “no choice” but to commit appellant to the department. The obvious import of the court’s language can be more fully stated in terms like the following: Local programs are clearly inadequate; the department’s programs are the only ones that have a chance of rehabilitating appellant; when the only choice is between programs that will not succeed and programs that might succeed, there is no real choice. Inherent in such a statement is a finding that the department’s programs will be of probable benefit to appellant, even though those programs might be less beneficial than some imaginable program that did not exist. (See In re Gerardo B. (1989) 207 Cal.App.3d 1252, 1258.)
Appellant also contends on this appeal that the court erred in calculating the maximum period of confinement to which appellant could be subjected. Given the multitude of offenses for which appellant could be confined, such an error is perhaps understandable. In any event, respondent agrees with appellant’s recalculation of the maximum, and the parties agree the correct maximum period of confinement is 14 years, four months. We will modify paragraph 8 of the amended commitment order to substitute 14 years, four months, for the term of 16 years, 11 months now contained in that paragraph.
Finally, appellant contended in his opening brief that the juvenile court failed to designate one count as a misdemeanor or a felony. He withdraws that argument in his reply brief, since the record clearly reflects that the court made the designation.
Disposition
The (amended) commitment order of June 7, 2007, is modified in paragraph 8 to show a maximum period of confinement of 14 years, four months, in place and instead of the maximum period of commitment stated therein. As modified, the order of June 7, 2007 is affirmed.