Opinion
NOT TO BE PUBLISHED
Superior Court County Ct. No. J64944. of Ventura Donald D. Coleman, Judge.
Kenneth Clayman, Public Defender, Michael C. McMahon, Chief Deputy, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, Robert M. Snider, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Milton C. appeals an order setting his maximum period of confinement (Welf. & Inst. Code, § 731) after the court had sustained petitions (Welf. & Inst. Code, § 602) finding he committed vandalism (Pen. Code, § 594, subd. (b)(2)), possessed tools for vandalism (§ 594.2, subd. (a)), committed burglary (§ 459), battery (§ 243.2, subd. (a)), made false statements to police officers (§ 148.9, subd. (a)), escaped from custody (Welf. & Inst. Code, § 871, subd. (d)), committed grand theft (§ 487, subd. (a)), unlawfully took a vehicle (Veh. Code, § 10851, subd. (a)), and violated probation conditions.
All further statutory references are to the Penal Code unless otherwise stated.
This is Milton's second appeal. In his first Peo. v. Milton C. (May 25, 2006, B182169 [nonpub. opn.]) we concluded the court erred by determining only one of the two maximum periods of confinement required by Welfare and Institutions Code section 731 when it committed Milton to CYA. We reversed and remanded for the court to decide the proper confinement period. On remand it determined that period to be nine years two months. We conclude that the court did not have to order a supplemental social study. We affirm.
FACTS
On November 19, 2003, Milton admitted the allegations of a Welfare and Institutions Code section 602 petition that he defaced an electrical box belonging to Southern California Edison with graffiti. He also admitted possessing a "Sanding Tip," a tool used to commit vandalism. He was declared a ward of the court, placed on probation and was released to the custody of his mother.
In January of 2004 he admitted five allegations in a subsequent petition. He acknowledged committing burglary, defacing a door with graffiti, committing battery, possessing a paint tube with intent to commit vandalism and giving a false name to police. The court committed him to a juvenile justice facility for 50 days. He was later released to his mother and placed on electronic monitoring.
Between June and November of 2004 Milton admitted allegations of five additional petitions. He acknowledged committing vandalism, possessing tools to commit vandalism, twice giving false information to the police, escaping from custody by removing an electronic monitoring device, grand theft and unlawfully driving a car belonging to another.
In December of 2004, after being placed in a youth home, Milton violated his probation by fighting with another ward and assaulting the youth home director with a pen.
On February 25, 2005, the court found that a CYA commitment was appropriate because Milton "failed . . . to reform." Based on the seven sustained petitions, the court imposed an aggregate of nine years two months (six years for burglary and a consecutive aggregate three years two months for thirteen misdemeanors Milton had admitted).
In setting the CYA confinement period the court said, "Total maximum term of physical confinement is nine years and two months." It determined the maximum term for an adult offender, but it did not set a second maximum term of confinement based on the facts of Milton's juvenile history. (Welf. & Inst. Code, § 731, subd. (b).)
Milton appealed. We reversed and remanded "with directions to set a maximum term of CYA physical confinement based on the facts and circumstances of Milton's case."
The Remand Hearing
Milton requested a supplemental probation department "social study." The trial court ruled that it did not need a new report to determine the second maximum confinement period. It had the report prepared for the prior disposition hearing and the file containing Milton's complete juvenile court record. That record contained 15 additional probation reports spanning a 16-month period.
Milton's counsel argued that mitigating factors included: 1) that Milton did not have the "primary role" in the burglary and 2) he "voluntarily acknowledged wrongdoing" prior to his arrest.
The court found Milton's history involves "a great deal of criminal conduct" and he did not do "well in any [rehabilitation] facility." "[H]is mother tried very hard to control [his] negative behavior and her efforts were . . . not successful, nor were the Court's . . . ." Between 2004 and 2005 he "accumulated . . . 11 incident reports" at a rehabilitation center. These included fighting, graffiti, intimidating others, disobeying "staff directives," and affiliating with gangs. Milton had a "continued disregard for any authority." The court said the juvenile authorities needed "as much discretionary authority as they can get" to "enhance the efforts at rehabilitation." It set the second maximum confinement period at nine years two months.
DISCUSSION
Milton contends it was reversible error for the court to decide his second confinement period without a supplemental social study. We disagree. Juvenile courts must determine two maximum confinement periods. (Welf. & Inst. Code, § 731, subd. (b).) The first is "the maximum period of imprisonment that could be imposed on an adult" for the offenses. (In re Jacob J. (2005) 130 Cal.App.4th 429, 438.) The second is based on "the particular facts and circumstances of the" minor's case and history. (Ibid.) It "may not be more than for a comparable adult, but may be less." (In re Carlos E. (2005) 127 Cal.App.4th 1529, 1542.) The court is not "restricted . . . to the aggravating or mitigating circumstance scheme for adults" and this second period "must be tied to the purposes of the juvenile system, which include[s] . . . rehabilitation." (Ibid.)
Here the court determined the second confinement period and made findings about Milton's rehabilitation. It had Milton's complete juvenile file and a social study prepared for his last disposition hearing.
I. Supplemental Social Study
Milton contends a supplemental social study is required. Welfare and Institutions Code section 280 provides, in relevant part, "It shall be the duty of the probation officer to prepare for every hearing on the disposition of a case . . . as is appropriate for the specific hearing, or, for a hearing provided by Section 702, a social study of the minor, containing such matters as may be relevant to a proper disposition of the case."
Milton notes that in In re L.S. (1990) 220 Cal.App.3d 1100, a CYA commitment was reversed because no social study was prepared for the disposition hearing. In re L.S. is distinguishable. There the court made the commitment knowing only facts about the offense. It had "no evaluation or insight into the appellant's problems" and no report on his current petition. (Id., at p. 1105.) It therefore was not in a position to determine whether the ward should have been placed in "less restrictive programs." (Ibid.) Here Milton does not challenge his commitment or the first confinement period, he contests only the second period.
In In re Eugene R. (1980) 107 Cal.App.3d 605, 615, the Court of Appeal held that the error of not having a current social study "is not of constitutional dimension" and is subject to a harmless error analysis. "The determinative issue . . . is whether it is reasonably probable that had the juvenile court received in evidence a current social study before disposition, a result more favorable to the minor would have occurred." (Ibid.)
In In re Melvin J. (2000) 81 Cal.App.4th 742, 755 (overruled on other grounds in John L. v. Superior Court (2004) 33 Cal.4th 158, 181, fn. 7), the Court of Appeal held that where the court knows the "underlying facts" when it makes its decision the absence of the latest juvenile probation report is not reversible error. It distinguished In re L.S. by noting that the trial judge there had been recently assigned and did not know the minor's history. (Ibid.)
Here, in contrast to In re L.S., the "situation is not one where no report was ever prepared." (In re Melvin J., supra, 81 Cal.App.4th at p. 755.) The court had a social study at the prior disposition hearing determine both confinement periods. It determined only the first one. But on remand it corrected its error by deciding the second relying, in part, on a large juvenile file which includes that social study.
Moreover, unlike the ward in In re L.S., Milton had an extensive juvenile history. The social study reviewed his rehabilitative placements and the court monitored Milton's progress through multiple proceedings. In In re L.S. the court had no report on the minor's current petition and only one probation report prepared for a prior petition 19 months earlier. It therefore lacked information on several factors, including the minor's "social, personal and behavioral history," his "' . . . delinquent history,'" and "alternative facilities" for rehabilitation. (In re L.S., supra, 220 Cal.App.3d at p. 1104.) Here, by contrast, the court had a record containing 16 probation reports spanning a 16-month period. It had reports on every petition, every probation violation and numerous reports covering each of the factors that were missing in In re L.S.
Milton suggests that a supplemental report would cover the period after he was committed to CYA. But at the remand hearing he did not make an offer of proof that information from that period would help him. He did not claim that there was new rehabilitation evidence or that anything of significance occurred after his CYA commitment. None of his sustained petitions involve that time period. The probation officer was in court. Milton had the opportunity to question him, but did not do so. Milton could have presented evidence about his time at CYA, but he did not do so.
Instead, he focused on facts about the burglary and his prior sustained petitions. But that information was reviewed in the social study prepared for the prior disposition hearing. Milton has not shown that report was inadequate or did not comprehensively evaluate his progress and rehabilitation. Nor has he shown why the court relying on the 15 additional reports could not draw reasonable inferences supporting its ruling. Milton has not shown a reasonable probability that with a supplemental social study the court would have reached a more favorable decision. (In Eugene R., supra, 107 Cal.App.3d at p. 615.) A remand for a new report is not required if it will only be a "meaningless exercise." (People v. Bullock (1994) 26 Cal.App.4th 985, 990.)
Moreover here any error is harmless beyond a reasonable doubt. The facts supporting the court's determination are extensive. There is a substantial history of sustained petitions and numerous efforts to rehabilitate Milton. But he made no effort to reform and continually repeated his recalcitrant conduct.
II. Inconsistent Findings
Milton contends the court's findings show it did not know which facts to consider. We disagree. The court said, "I think 731 (b) tells me that I must look at all the sustained petitions through his journey through the juvenile justice system. I otherwise really can't look at all of the facts and circumstances unique to his case as an individual." Milton claims this shows the court felt it could not look "at all the facts." But it was merely clarifying that if it did not consider all of Milton's petitions it would not be considering all the relevant facts.
Milton notes the court used the phrase, "Maximum term was nine years and two months. Court reaffirms that." Milton claims "there was nothing to reaffirm" and the court's language shows it did not properly exercise its discretion. But one isolated phrase does not establish error. (People v. Zapien (1993) 4 Cal.4th 929, 976.) Here the court carefully reviewed the necessary factors. It considered his sustained petitions, his probation, his progress, his placements and his history. It made findings about his rehabilitation prospects. It noted that he had not "done well in any facility" and his mother unsuccessfully tried "to control" his behavior. Milton showed "disrespect towards [rehabilitation] staff," he did not benefit from "years of efforts of rehabilitation" and failed to "participate in substance abuse counseling." He had been suspended from school and had repeatedly associated "with taggers" and gangs. The findings are sufficient. (In re Jacob J., supra,130 Cal.App.4th at p. 438.)
The judgment is affirmed.
We concur: YEGAN, J., PERREN, J.