Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Ventura, Manuel J. Covarrubias, Judge, Super. Ct. No. 2006013197
Nancy K. Undem, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Jaime L. Fuster, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Juan G. appeals from an order of the juvenile court committing him to the California Department of Corrections and Rehabilitation, Division of Juvenile Facilities (CDCR-DJF) for a maximum term of three years two months based on offenses found true in multiple sustained juvenile wardship petitions. (Welf. & Inst. Code, § 602.) His offenses include unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)); battery (Pen. Code, § 242); vandalism (§ 594, subd. (b)(2)(A)); and battery with the specific intent to promote, further and assist in criminal conduct by members of a criminal street gang (§§ 242, 186.22, subd. (d)). He challenges the sufficiency of the evidence to support the gang enhancement and contends that the court abused its discretion in committing him to CDCR-DJF. We affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTS AND PROCEDURAL HISTORY
Appellant was born in June 1989. On June 19, 2006, police officers stopped him as he was driving a stolen vehicle without a driver's license. The officers found two knives and marijuana during a search conducted following his arrest. Appellant was detained in the juvenile facility (JF). On June 21, a wardship petition was filed pursuant to Welfare and Institutions Code section 602, alleging that appellant had unlawfully driven or taken a vehicle (Veh. Code, § 10851, subd. (a)), a felony, with a gang enhancement (§ 186.22, subd. (d)); carried a switch-blade knife (§ 653k); driven while unlicensed (Veh. Code, § 12500, subd. (a)); and possessed 28.5 or fewer grams of marijuana (Health & Saf. Code, § 11357, subd. (b)). On July 12, the court sustained the allegation that appellant unlawfully drove or took a vehicle, but did not sustain any other allegation of the petition. The court set a total maximum term of confinement of three years two months, and placed appellant in the care of the probation officer, to remain in the JF, pending disposition of the petition.
On July 14, 2006, appellant battered another student in a JF classroom. A subsequent petition was filed on July 18, alleging that he had committed a misdemeanor battery. (§ 242.) On July 19, he admitted the allegation, and the court sustained the petition and ordered him to remain at the JF pending its disposition.
On July 21, 2006, appellant admitted having etched the letters "LW" on the sink in his JF room. He previously had admitted that he was a Lemonwood Chiques gang associate. On July 25, a subsequent petition was filed, alleging that appellant had committed vandalism not exceeding $400. (§ 594, subd. (b)(2)(A).) On July 26, he admitted the allegation, and the court sustained the petition and ordered him to remain at the JF pending its disposition.
On September 20, 2006, in the late afternoon, appellant asked a supervising officer in the JF dining area for permission to empty his plastic food tray. After he received permission to do so, appellant emptied the tray, then used it to strike another ward, Juan O., on the back of the head. The supervising officer did not see Juan O. make any threats or gestures before appellant struck him. On October 24, a subsequent petition was filed, alleging that appellant had committed a misdemeanor battery (§ 242), with the specific intent to promote, further and assist in criminal conduct by members of a criminal street gang (§ 186.22, subd. (d)).
During a contested adjudication hearing, Oxnard Police Officer Adam Wittkins, a gang investigator and expert on Ventura County street gangs, testified about the Lemonwood Chiques and the Colonia Chiques, two rival gangs. Appellant belonged to the Lemonwood Chiques, whose primary activities were shootings, robberies, vandalism, and assaults. Juan O. belonged to the Colonia Chiques gang. Wittkins opined that appellant committed the battery on Juan O. to benefit the Lemonwood Chiques. A gang member must "put in work" for the gang, which includes assaulting members of rival gangs. Because the battery was witnessed by many minors, it would enhance the reputation of appellant and his gang, inasmuch as gangs earn respect by engaging in violent behavior. After the battery, a note or graffiti saying "187 Colonia Chiques" was found in appellant's cell. On December 6, 2006, the court sustained the petition, including the allegation that appellant committed the battery with the intent to benefit a criminal gang. (§§ 242, 186.22, subd. (d).)
Prior to the scheduled December 20, 2006, disposition hearing, the probation department filed its December 19 report recommending that appellant be ordered "to serve an additional 180 days in the [JF]." On December 20, the disposition hearing was continued to January 5, 2007, and "probation was ordered to screen the minor for a commitment to the [CDCR-DJF] and to prepare a memo addressing whether such a commitment [was] appropriate."
Just hours after appearing in court on December 20, appellant "was involved in a fight," in which he and another ward "punch[ed] each other and refused to obey staff directives to stop." Appellant "sustained a bloody nose [but the other ward] sustained no injuries." Appellant told a probation officer that if he were returned to the JF Wheeler commitment program, he would "continue to engage in fights with rival gang members." The probation department filed a report on December 27 recommending that appellant be committed to the CDCR-DJF, where he would "participate in gang awareness classes, substance abuse counseling, victim impact classes, decision making skills training, education, and employability training." Appellant submitted a statement in mitigation and report of his counsel, seeking a local placement rather than commitment to CDCR-DJF, with favorable reports from JF educational staff.
At the March 1, 2007, disposition hearing, appellant's counsel objected to the CDCR-DJF commitment recommendation and referred the court to the statement in mitigation and report of counsel. The court indicated it had received, read and considered that statement and report. Appellant's counsel disputed the prosecutor's claim that appellant had a "two-year history of gang-related behavior" because his criminal conduct primarily spanned the several-month period that began less than a year before the disposition date. The probation department informed the court that since the filing of its December 27 report, appellant had been involved in three additional incidents, including, on January 20, a "mutual combat" fight that was not gang related; and on January 29, an incident in which he had refused to follow staff orders, kicked a trash can, jumped on a laundry cart, and thrown a chair into the middle of an activity room.
The court concluded that "it's been shown . . . that the services, unfortunately, . . . provided here at the local facility are not sufficient to meet the needs of [appellant]. [He] indicates that he wants to . . . do[] things in a positive way. But it appears that his actions . . . continue to speak much louder than his words as his ability to conform his behavior while he's in the [local] facility, even on the detention side, shows that the services are not going to meet [his] needs . . . . And knowing that [he] was facing a potential commitment to the [CDCR-DJF] . . ., [he] has not been able to make that turnaround. And the Court does believe a commitment to the [CDCR-DJF] is the appropriate disposition . . . ." The court found that appellant's "mental and physical condition and qualifications [were] such as to render it probable that [he would] be benefited by the reformatory, educational discipline, and other treatment provided by the [CDCR-DJF]."
DISCUSSION
Gang Enhancement
Appellant contends that the evidence is not sufficient to support the juvenile court's finding that he committed the September 20, 2006, battery with the intent to promote, further or assist in any criminal conduct by gang members. We disagree. To subject a defendant to the section 186.22, subdivision (b)(1) gang enhancement, the prosecution must prove that the crime for which the defendant was convicted had been committed for the benefit of, at the direction of, or in association with any criminal street gang, and with the specific intent to promote, further, or assist in any criminal conduct by gang members. (§ 186.22, subd. (b)(1); People v. Gardeley (1996) 14 Cal.4th 605, 616-617.)
Appellant admitted his association with the Lemonwood Chiques gang. In June 2006, he stated that, despite pressure from gang members to do so, he had avoided being "jumped" into the gang. Instead, he stated, he remained "an associate" and "put in work" for the gang by fighting rival gang members and tagging for the gang. He added that if an associate goes into custody and "put[s] in work," he is then "jumped in" after his release. While detained at the JF, appellant reiterated his desire to avoid being "jumped into" the gang. Despite that claim, he admitted that he etched the gang's initials on the sink in his room at JF. He also hit Juan O., a rival gang affiliate, on the back of the head with a plastic tray. The JF staff member who witnessed the incident saw no provocative conduct by Juan O. before the attack. After the attack, a note or graffiti saying "187 Colonia Chiques" was found in appellant's cell. Gang expert testimony and appellant's earlier admission established that a gang member or associate must "put in work" for the gang, which includes assaulting members of rival gangs. The gang expert explained that, because many minors witnessed the incident, appellant's assault on Juan O. would enhance the reputation of appellant's gang. Substantial evidence supports the finding that appellant battered Juan O. with the specific intent to promote future crimes by other gang members. (See People v. Gardeley, supra, 14 Cal.4th 605, 619; People v. Sengpadychith (2001) 26 Cal.4th 316, 323-324; compare In re Frank S. (2006) 141 Cal.App.4th 1192, 1196.)
CDCR-DJF Commitment
Appellant further contends that the juvenile court abused its discretion in committing him to CDCR-DJF because it relied on an "erroneous gang enhancement finding" and a "mistaken criminal history," and failed to consider a less restrictive alternative placement. We disagree.
In reviewing a CDCR-DJF commitment order for an abuse of discretion, we "indulg[e] 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 [CDCR-DJF] commitment and the inappropriateness or ineffectiveness of less restrictive alternatives. [Citations.] A [CDCR-DJF] commitment may be considered, however, without previous resort to less restrictive placements." (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) Findings made in connection with a CDCR-DJF commitment order will be affirmed on appeal if supported by substantial evidence. (In re Michael R. (1977) 73 Cal.App.3d 327, 333.) There is more than sufficient evidence to support the juvenile court's finding that less restrictive alternatives are insufficient or inappropriate.
Because substantial evidence supports the gang enhancement finding, we reject the claim that the CDCR-DJF commitment was based on an erroneous gang enhancement finding. We also reject the claim that the juvenile court relied on a "mistaken criminal history" in committing appellant to CDCR-DJF. Appellant bases this claim in part on an erroneous perception that during the disposition hearing, the "court changed its earlier finding from driving the car to stealing the car [during the Vehicle Code section 10851 offense] . . . to support a placement at CDCR-[DJJ]." It did not. During the disposition, the court acknowledged that the "evidence did not establish that [appellant] actively stole the vehicle."
Appellant also claims that the court failed to take into consideration two student reports addressing his good conduct in school. The record does not support this claim. The student reports were among several exhibits submitted with his statement in mitigation and report of counsel. The court not only indicated that it had reviewed and considered that document, but also later discussed it during the disposition hearing. For example, it observed appellant's failure to sustain good conduct, noting that just three days after he earned a certificate commending his conduct, he blatantly disregarded staff orders, kicked a trash can, etc.
A juvenile court's decision to commit a minor to the CDCR-DJF will not be deemed to constitute an abuse of discretion where the evidence shows probable benefit to the minor from the commitment and that less restrictive alternatives would be ineffective or inappropriate. (In re Angela M., supra, 111 Cal.App.4th 1392, 1396.) Here, appellant spent more than six months in the JF, a less restrictive alternative that proved ineffective. While appellant was detained at JF, the court sustained three subsequent petitions for his crimes against other wards (two separate batteries) and JF property (vandalism). In addition, after those petitions were sustained, JF staff cited appellant for failing to follow staff orders, fighting with another ward, and misconduct that included throwing a chair into the middle of the activity room.
Appellant associated with gang members and had poor emotional bonds with his family. He also had a substance abuse problem and difficulty managing his anger. At CDCR-DJF, appellant could "participate in gang awareness classes, substance abuse counseling, victim impact classes, decision making skills training, education, and employability training." The court was well within its discretion in committing him to CDCR-DJF.
The judgment (order of commitment) is affirmed.
We concur: GILBERT, P.J., YEGAN, J.