Opinion
F056370.
6-26-2009
In re J.R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. J.R., Defendant and Appellant.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, and Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
OPINION
THE COURT
Before Wiseman, A.P.J., Levy, J., and Dawson, J.
The court adjudged appellant, J.R., a ward of the court after appellant admitted allegations charging him with robbery (Pen. Code, § 211) and a personal arming enhancement (Pen. Code, § 12022.53, subd. (b)). On September 16, 2008, the court aggregated time from prior petitions, set appellants maximum term of confinement at 14 years 3 months, and committed him to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF). On appeal, appellant contends the court: 1) abused its discretion when it committed him to DJF; and 2) erred in its award of predisposition custody credit. We will find merit to this latter contention and modify the judgment accordingly. In all other respects, we will affirm.
DJF was formerly known as the California Youth Authority (CYA). (In re Lemanuel C. (2007) 41 Cal.4th 33, 37, fn. 2.) DJF was renamed by statutory enactment in 2005. (Welf. & Inst. Code, §§ 202, subd. (e)(5), 1000, 1703, subd. (c), & 1710, subd. (a).) The DJF is part of the Division of Juvenile Justice. (Gov. Code, §§ 12838, 12838.3, 12838.5, 12838.13.) DJF is referenced in statutes, such as Welfare and Institutions Code sections 731 and 733, that formerly referred to CYA. (In re N.D. (2008) 167 Cal.App.4th 885, 890, fn. 2.) In this opinion, we will use the name DJF uniformly, even when referring to older cases and statutes.
FACTS
On July 2, 2008, appellant was armed with a handgun and wore a bandanna over his face as he entered a barber shop in Tulare while the owner was cutting a customers hair. Appellant pointed the gun at the owner and demanded money. After the owner said he did not have any, appellant took some money that was on top of a counter and a watch that was hanging on a hook. Appellant ran from the shop but was detained a short time later and taken into custody. The officers found a handgun and some currency in the area where appellant was detained. During questioning, appellant admitted committing the robbery with the gun the officers found.
On July 7, 2008, the district attorney filed a petition charging appellant with robbery and alleging a personal use of a firearm enhancement.
On July 23, 2008, appellant entered his plea in this matter.
Appellants probation report indicates he was 17 years old and lived with his mother when he committed the underlying offense. In 2006, appellant was adjudicated for battery and resisting arrest. In 2007, he was adjudicated for violating probation and disturbing the peace at school. In 2008, he was adjudicated for possession of tobacco, carrying a concealed dagger, and two violations of probation.
In a probation department interview, appellant stated that he committed the robbery because he owed money. He also admitted using marijuana consistently and alcohol on a daily basis, and he claimed to have been intoxicated when he committed the underlying robbery. Appellant expressed remorse for the effects of the robbery on the victim. The probation report also noted that appellant was an associate of the Crips gang although appellant denied this.
Appellant was enrolled in the Juvenile Detention Facility School Program on July 7, 2008, and was involved in two disciplinary incidents: he was removed from class once for being disruptive and the following day he refused to attend school.
The report noted that appellant had been adjudicated a ward of the court on four prior occasions and was on probation when he committed the instant offense. The report concluded that appellants offense involved planning and sophistication and that his inability to reform at the local level indicated that appellant needed a more restrictive commitment. The reporting officer did not consider a placement in the Tulare County Long Term Program or the Tulare County Youth Facility Program because appellant reoffended after being given the opportunity to reform his behavior and his latest offense was of increased seriousness. The Tulare County Short Term Program was not considered because it appeared appellant needed a longer, more structured setting to adequately meet his needs. Placement in a group home, foster home, or with a suitable relative were not considered because appellant did not have any major mental health issues that warranted such a placement. Thus, due to appellants extensive delinquent history, the seriousness of his current offense, his failure to take advantage of local services, and the need to protect the community, the probation report recommended a commitment to the DJF. The officer noted that at the DJF appellant would be able to participate in gang awareness training and continue his education in a secure environment, he would receive 24-hour supervision in a highly structured setting, and the safety and security of the community would be maintained.
On September 4, 2008, Dr. James Delahunt performed a psychological evaluation of appellant. During the evaluation, appellant admitted he was an associate of the Crips gang. He also stated that he planned the robbery the day before he committed it because he was being pressured into paying a $200 drug debt. Although appellant stated he did not intend to shoot the victim, he did not claim that the gun was unloaded.
Dr. Delahunt concluded that appellant had a severe conduct disorder, cannabis and alcohol dependence, antisocial personality traits and features, an inadequate social support system, discord with teachers and authority figures, gang affiliation, and problems related to the legal system. These disorders had produced impairment in judgment, behavior, social and family relationships, and school achievement. Dr. Delahunt also concluded that the medical necessity criteria had been met for receipt of mental health treatment services and that the treatment was expected to last a year or longer. Substance abuse treatment was also recommended. Dr. Delahunt concurred with the recommendations of the probation officer that appellant should be committed to the DJF. He recommended that while incarcerated, appellant should receive individual or group therapy, attend group treatment for substance abuse, obtain his high school diploma, and participate in occupational training. Dr. Delahunt further concluded that appellant posed a risk of violence because he was seriously emotionally disturbed.
At appellants disposition hearing, defense counsel submitted a letter from one of appellants teachers wherein she asserted that appellant was an excellent student and always did his work quickly and correctly. Appellant then testified that he robbed the barber shop because he owed money to a drug dealer. He found the gun he used in an alley and he thought that no one would get hurt in the robbery because it was unloaded. Appellant apologized to the victim and stated that he hoped the victim could forgive him someday.
During arguments, defense counsel urged the court to consider a less restrictive placement and place appellant in the Tulare County Long Term Program.
In announcing its decision to commit appellant to the DJF, the court stated that it believed appellant could turn his life around but that it saw a pattern that had almost gotten to the "worst possible scenario." The court also stated that it was concerned because appellant had previously engaged in misdemeanor conduct and the previous December appellant had been warned he was "on the edge." The court then stated that appellants current offense was more serious than his ingestion of narcotics or alcohol and despite his claim that he had attended counseling for his substance abuse, the abuse had controlled his life to the extent that he used a gun to commit a robbery. The court also stated that use of a gun to commit a crime typically results in a lengthy prison sentence and, at that point, appellants options were limited to a commitment to Tulare Countys Long Term Program or DJF to obtain the type of counseling he needed. The court then pointed out that although appellant might think he was fine, he was seriously emotionally disturbed and needed a minimum of one year of treatment which would allow him to learn the internal controls he lacked. Although the court believed that robbing a barber shop was unusual conduct for appellant, it also knew that appellant was prepared to commit the "very worst possible act." After further discussion the court committed appellant to the DJF.
DISCUSSION
The DJF Commitment
Appellant contends the court abused its discretion in committing him to the DJF because it is a commitment of last resort and the record does not contain evidence that he would benefit from a commitment there or that less restrictive alternatives would be ineffective or inappropriate.
"The juvenile courts decision to commit a minor to the [DJF] will be reversed only when an abuse of discretion has been shown. [Citation.] The evidence, however, must demonstrate probable benefit to the minor from commitment to the [DJF] and that less restrictive alternatives would be ineffective or inappropriate. [Citation.]" (In re George M. (1993) 14 Cal.App.4th 376, 379; See In re Pedro M. (2000) 81 Cal.App.4th 550, 555-556.) "An appellate court will not lightly substitute its decision for that rendered by the juvenile court. 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 re Michael D. (1987) 188 Cal.App.3d 1392, 1395; In re Lorenza M. ( 1989) 212 Cal.App.3d 49, 53; In re Robert H. (2002) 96 Cal.App.4th 1317, 1330.)
In determining whether there is 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. (In re Michael D., supra, 188 Cal.App.3d at p. 1395.) "Under [Welfare and Institutions Code] section 202, juvenile proceedings are primarily `rehabilitative [citation], and punishment in the form of `retribution is disallowed [citation]. Within these bounds, the court has broad discretion to choose probation and/or various forms of custodial confinement in order to hold juveniles accountable for their behavior, and to protect the public. [Citation.]" (In re Eddie M. (2003) 31 Cal.4th 480, 507.) "In 1984, the Legislature amended the statement of purpose found in section 202 of the Welfare and Institutions Code. It now recognizes punishment as a rehabilitative tool and emphasizes the protection and safety of the public. [Citation.] The significance of this change in emphasis is that when we assess the record in light of the purposes of the Juvenile Court Law [citation], we evaluate the exercise of discretion with punishment and public safety and protection in mind. Such was not the case before 1984." (In re Lorenza M., supra, 212 Cal.App.3d at pp. 57-58.)
Appellants robbery offense was premeditated and showed a degree of sophistication in that he planned the robbery the day before and he wore a bandanna over his face to conceal his identity. Appellant also committed the robbery in a reckless and violent manner: he was intoxicated at the time, during the robbery he pointed a gun at the shop owner while demanding money, and, as noted by the court, the robbery could easily have resulted in serious injury or death to the owner or the customer who was in the shop at the time. Further, Dr. Delahunt evaluated appellant and concluded that he was seriously emotionally disturbed, required treatment lasting a year or more, and that without treatment he posed a risk of violence. The court could reasonably conclude from these circumstances that the safety of the public required that appellant be committed to a secure placement and they support the courts conclusion that appellant needed a placement that lasted at least one year. They also support the courts implicit finding that less restrictive placements would be inappropriate because of appellants potential for violence and his need for a placement that lasted more than a year. Defense counsel implicitly conceded that appellant required a long term, secure placement when he argued for a placement in the Tulare County Youth Program. The court, however, could reasonably find from appellants severe emotional problems and the other circumstances noted earlier that a commitment of a year would not be sufficient to meet appellants rehabilitative needs. It could also consider that a commitment to the DJF would hold appellant accountable for his conduct and would allow him to receive the treatment for the length of time necessary to address his problems so that he would not be a danger to the public when he was released.
The record also contains evidence that appellant would probably benefit from a DJF commitment. At the DJF, appellant would be able to receive counseling and therapy to address his gang issues, substance abuse problems, and severe emotional problems. He would also benefit from the secure placement and the educational and vocational opportunities available there. (Cf. In re Tyrone O. (1989) 209 Cal.App.3d 145, 153 [trial court properly found that the [DJF], with its specialized institutions and rehabilitative programs tailored to the delinquents sophistication and need for security probably would benefit minor].)
Appellant cites his testimony at the disposition hearing that he found the gun in an alley and that it was unloaded to minimize the egregiousness of his conduct and argue that his robbery offense did not warrant a DJF commitment. However, the court was not bound by appellants testimony especially since appellant never claimed that he found the gun or that it was unloaded when he spoke with the police, to the probation officer, or to Dr. Delahunt.
Appellant also claims that a commitment to DJF would only turn him into a lifelong criminal because he was a Crips gang associate and a commitment there would only reinforce that gang affiliation because he would likely be housed with Crips gang members. He further contends that in a less restrictive placement he would receive gang counseling and other counseling. However, appellant does not cite any evidence in the record to support his implicit assertion that he would have contact with Crips members only if he were committed to the DJF or that he would not receive gang awareness or other counseling at the DJF. This latter assertion is also contradicted by appellants probation report which noted that at the DJF, appellant would receive gang awareness counseling.
Appellant further contends he was not a threat to the community because he was not a severely delinquent minor and none of his prior offenses were felonies or dangerous charges like his robbery offense. He also cites In re Carl N. (2008) 160 Cal.App.4th 423, to contend that the court should have attempted less restrictive alternatives before committing him to the DJF. These contentions ignore the serious circumstances of this instant offense and Dr. Delahunts conclusion that appellant was seriously emotionally disturbed and posed a risk of violence. Further, Carl N. is inapposite. In Carl N. the minor committed a series of crimes and numerous probation violations that resulted in five petitions being filed against him and various placements prior to his commitment to the DJF. The minors offenses ranged from petty theft, vandalism, drug possession, resisting arrest, vandalism for the benefit of a street gang, and felony assault. This latter charge resulted from the minor hitting and kicking another ward while they were both being detained at juvenile hall. (Id. at pp. 425, 429-430.)
Carl N. is easily distinguishable from the instant case because appellants robbery offense is far more serious than any of the minors offenses in Carl N. in that appellant used a firearm and endangered the lives of at least two people. Further, while the juvenile court law contemplates a progressively restrictive and punitive series of dispositions, there is no absolute rule that the court may not impose a particular commitment until less restrictive placements have actually been attempted. (In re Eddie M., supra, 31 Cal.4th at p. 507; In re Asean D. (1993) 14 Cal.App.4th 467, 473; In re Tyrone O., supra, 209 Cal.App.3d at p. 151.) Thus, we conclude that the court did not abuse its discretion when it committed appellant to the DJF.
The Credits Issue
Appellant contends he is entitled to 77 days of presentence custody credit instead of the 46 days the court awarded him. We agree and will modify his award of predisposition custody credit.
Minors are entitled to credit against their maximum term of confinement for all days spent in predisposition custody. (In re Eric J. (1979) 25 Cal.3d 522, 533.) Appellant was in custody from his date of arrest on July 2, 2008, through the date of his predisposition hearing on September 16, 2008. Thus, he was entitled to 30 days custody credit for July 2008, 31 days of custody credit for August 2008, and 16 days of custody credit for September 2008, for a total of 77 days of predisposition custody credit (30 days + 31 days + 16 days = 77 days).
Respondent contends that appellant is entitled to only 72 days of presentence conduct credit because the probation report states appellant committed his offense and was arrested on July 7, 2008. We are satisfied from our review of the record that the appellant committed his robbery offense and was arrested on July 2, 2008, and is thus entitled to 77 days of predisposition credit.
DISPOSITION
The courts commitment order is modified to award appellant 77 days of predisposition credit. As modified, the judgment is affirmed.