Opinion
B207169 B207841 B208574
9-30-2009
In re R.M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. R.M., Defendant and Appellant. In re M.T., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. M.T., Defendant and Appellant. In re L.S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. L.S., Defendant and Appellant.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant R.M. Holly J. Jackson, under appointment by the Court of Appeal, for Defendant and Appellant M.T. Mary Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant L.S. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey, Viet H. Nguyen, Catherine Okawa Kohm, Linda C. Johnson, and Elaine F. Tumonis, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
Minors R.M., L.S., and M.T. appeal from orders of the juvenile court following a true finding on a juvenile wardship petition filed pursuant to Welfare and Institutions Code section 602 on count 1, second degree robbery of Young Hee Kang (Kang) (Pen. Code, § 211) and count 2, second degree robbery of Thomas Makowski (Makowski) (§ 211). The juvenile court found true as to count 1 and count 2 the allegations that a principal personally used a firearm (§ 12022.53, subds. (b) & (e)(1)) and that the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)).
All further statutory references are to the Penal Code unless otherwise indicated.
As to R.M., the trial court dismissed count 3, giving false information to a police officer (§ 148.9, subd. (a)).
The juvenile court denied probation, and found both offenses to be strikes pursuant to Welfare and Institutions Code section 707, subdivision (b). The juvenile court found as to all three minors individually that the maximum adult confinement term was 36 years, but ordered that the commitment not exceed five years for each minor
We modify the juvenile courts orders to reflect a maximum adult confinement term of 19 years four months as to all minors.
We strike the juvenile courts order restraining R.M. from associating with any gang members as an unauthorized order. In all other respects the juvenile courts orders are affirmed.
CONTENTIONS
R.M. contends: (1) the evidence was insufficient to support the finding that he participated in the robberies either as a direct perpetrator or as an aider and abettor; (2) the evidence was insufficient to prove that the offenses were committed for the benefit of a criminal street gang; (3) the juvenile courts order directing him not to have any contact with gang members was unlawful and in excess of the juvenile courts jurisdiction; (4) the juvenile court abused its discretion by committing him to the Department of Juvenile Justice (DJJ); and (5) the matter must be remanded to the juvenile court for resentencing because the juvenile court set a maximum confinement time in excess of the maximum prison time that could be imposed on an adult offender and because the juvenile court failed to exercise its statutory discretion in setting the maximum confinement.
L.S. contends: (1) substantial evidence fails to support the juvenile courts findings on the gang enhancements; and (2) his maximum confinement time was calculated incorrectly.
M.T. contends the trial court abused its discretion in committing him to the DJJ.
FACTS AND PROCEDURAL HISTORY
Viewing the whole record in the light most favorable to the judgment below as we must (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139), the evidence established the following.
On January 21, 2008, at 10:30 p.m., Makowski parked his car near Westwood Boulevard and Rochester Avenue. Two men wearing dark blue sweatshirts with the hoods pulled over their heads approached Makowski. One man, identified by Makowski at the adjudication hearing as R.M., pointed a 14-inch shotgun with a dark wood stock and a dark metal barrel at Makowskis chest. R.M. wore dark blue jeans, tan colored tennis shoes, and a dark blue ski mask or bandanna covering his nose and mouth. The second man wore a bandanna covering his nose and mouth. He wore dark green pants. R.M. told Makowski to give him all his stuff. Makowski was about five to six feet away from R.M. Makowski could see R.M.s eyes, the area an inch below his eyes, the area above his eyebrows, some of his hairline, and his cheeks. Makowski dropped to his knees and emptied his pockets. He placed his silver cigarette case, his wallet containing a $1,000 check and credit cards, and a Sony video camera in a black Tamarack bag on the ground. The second man picked up the items. As the two walked away, R.M. said: "Youre lucky I didnt put a cap in your ass." The robbery took 20 seconds. Makowski called 911 and described the men who had robbed him. At the adjudication hearing, Makowski identified R.M. as the man holding the shotgun by the shape of his eyebrows, the shape of his head, the shape of his face, and a mole or birthmark near his right eye. Makowski also identified a photograph of the tan colored tennis shoes that R.M. wore during the robbery.
Around 10:30 p.m. that evening, Los Angeles Police Department Officer Dana Binion, who was in an unmarked car in Westwood, heard a radio call about a robbery at Rochester. Officer Binion was aware of two robberies that had occurred on the evening of January 14, 2008, one on the west side and one on the east side of the freeway. About 15 minutes later, two miles away from Westwood and Rochester, Officer Binion observed a black four-door Honda Accord behind him and noted its license plate number. The officer let the car pass him and saw it turn into an alley and park. Officer Binion saw two men wearing dark sweatshirts, with their hoods on, walk east away from the alley. The officer noticed a third man wearing a sweatshirt with the hood on. That man was outside the passenger side of the car, also walking east. Officer Binion lost sight of the car for 45 seconds while driving past the alley into a parking lot that had a view of the alley. When the car was in view again, the officer saw the third man enter the passenger side of the car and the other two men get into the backseat. Officer Binion followed the car for four blocks, but lost sight of the car at 10:55 p.m. The cars license plate number was registered to an address on West Jefferson Boulevard.
At 11:00 p.m., Kang parked her car in the area of Yale Street and Wilshire Boulevard in Santa Monica, about three miles away from the first robbery. A man identified by Kang as L.S. at the adjudication hearing approached Kang and pointed a brown and black shotgun at her face. He wore a dark black sweatshirt with the hood pulled over his head. He wore dark colored pants and a black cloth covered his nose and mouth. A second person, identified at the adjudication hearing by Kang as M.T., approached the passenger side of the car, opened the door, and asked Kang if she had any money. He wore a dark sweatshirt with a hood pulled over his head, and black fabric hid his face. M.T. took Kangs purse which contained $4,000 in cash in a white envelope, a smaller amount of cash in her wallet, a pink cellular telephone, and a pair of brown womens sandals. The two men then fled. Kang heard two car doors open and close, and saw the shadow of a car in the alley up the street from where she was parked. She heard the car drive away. At the adjudication hearing, Kang testified that L.S. had the same big and stocky build and deep set, dark eyes as the man holding the shotgun.
At 1:00 a.m. on January 22, 2008, Los Angeles Police Department Officer Ramon Borunda responded to the address on West Jefferson Boulevard. As Officer Borunda reached the residence, a black Honda with five men inside pulled up to the address. The men inside were detained. A search of M.T. revealed a silver cigarette case holder, $800 in cash, and two cellular telephones, one of which was later identified as Kangs pink cellular telephone. A search of L.S. revealed $800 in cash and a search of R.M. revealed hundreds of dollars in cash. After the car was taken to the Santa Monica Police Station, officers found a Tamarack camera bag containing a Sony camera, a hooded pullover sweater, and a bent metal pipe in the trunk of the car. Two knives were found in the center console in the backseat, two torn pieces of T-shirt on the floorboard in the backseat, one black knit glove in the front passenger side, one black knit glove in the back passenger side, a black ski mask in the backseat, and a pair of brown womens sandals on the passenger side of the backseat.
At a field showup, Kang made a tentative identification of one of the robbery suspects. She was unable to positively identify anyone as a participant in the robbery because she was looking at them from a distance. Makowski was also taken to a field showup where he identified one of five persons as the man holding the shotgun. He ranked the four others based on the likelihood of involvement in the robbery. He also identified his stolen cigarette case, video camera, and video camera bag. Kang identified her cellular telephone and sandals.
At the adjudication hearing, Los Angeles Police Department Officer Winston Lee testified as a gang expert. He stated that the 18th Street gang had 1,913 members in Southwest Los Angeles as of January 21, 2008, and more than 20,000 members outside of the Southwest Los Angeles area. The primary activities of the 18th Street gang are murder, attempted murder, robberies, burglaries, rapes, transportation of narcotics, sales of narcotics, sales of guns, and transportation of guns for sale. In order to join the gang, potential members must put in work by committing robberies, shootings, and narcotics transactions. They must continue to put in work to maintain their membership. Only 18th Street gang members are permitted by the gang to wear the gangs tattoos on their bodies.
L.S. had admitted to Officer Lee on several occasions that he is a member of the 18th Street gang. Officer Lee identified a photograph of L.S. throwing gang signs and displaying gang tattoos on his body. The tattoos depicted the words, "Rancho Park," "18," roman numerals "XVIII" and "Pee Wee Winos." Rancho Park and Pee Wee Winos are cliques of the 18th Street gang. M.T. admitted membership in the 18th Street gang to Officer Lee on two occasions. Officer Lee identified a photograph of M.T. throwing gang signs and wearing gang tattoos on his body, including "8" and "teen." Under his ear, he had a tattoo with the letters "RPK." Officer Lee met M.T. when he was arrested for possession of a gun. Officer Lee had prior conversations with Culver City Department Police officers who informed him that R.M. was an 18th Street gang member. Officer Lee testified that R.M. wore the tattoos "1," "8," "Rancho Park," and "Pee Wee Winos."
Officer Lee opined that the robberies of Kang and Makowski were committed to benefit the 18th Street gang. Robberies benefit the gang by creating fear and intimidation throughout the community. Robberies also raise the status of the individual members who commit the robberies. The profits from the robberies are used to purchase narcotics and guns, and to enable the gang to commit more crimes. Officer Lee opined that R.M., L.S., and M.T. were working as a robbery crew. He believed that they were dividing up money for the work they put in for the 18th Street gang. Moreover, Officer Lee opined that gang members would be disciplined, ostracized or killed if they worked without permission, or without paying a profit to the gang. Officer Lee opined that crimes committed outside 18th Street gang territory, in Westwood or Santa Monica, would further the gang because the perpetrators could hide their 18th Street gang membership.
L.S.s statements on January 22, 2008, to Santa Monica Police Department Officer John Henry were admitted only as to him. L.S. gave two versions about one of the robberies. He first stated that he, R.M., M.T., and another person named Esdras Valencia (Valencia) drove to Santa Monica. L.S. and M.T. were dropped off in the area of Third Street Promenade and Broadway. At 10:10 p.m., L.S. telephoned Valencia to pick them up. They drove to a hamburger stand and purchased hamburgers. One of the men removed a large amount of money and said "look what Ive found." The others asked him to divide the money, which he did. They then picked up Jimmy Landeverde (Landeverde). Valencia noticed that police were following him. He drove back to his residence where they were apprehended.
Later, L.S. stated that R.M., M.T., and Valencia were driving around talking about committing robberies. Valencia was driving when they located a victim. When R.M. and Valencia got out of the car, L.S. got into the drivers seat. R.M. and Valencia robbed the victim, then ran back to the car and split up approximately $ 2,000 among the rest of the men. They then drove to Jefferson Boulevard and Crenshaw Boulevard to pick up their friend Landeverde. When Valencia noticed that police cars were following them, he drove to his residence on West Jefferson Boulevard where police arrested them.
The juvenile court committed R.M. to the DJJ. It found the maximum confinement adult time would be 36 years, but ordered that the commitment not exceed five years. The juvenile court ordered R.M. to pay victim restitution, ordered him to pay a restitution fund fine in the amount of $200, and ordered him not to associate with any gang members.
L.S. admitted a violation of probation. The juvenile court committed L.S. to the DJJ, set the maximum adult confinement time at 36 years, but ordered that the commitment not exceed five years.
The juvenile court committed M.T. to the DJJ, set the maximum adult confinement time at 36 years, but ordered that the commitment not exceed five years.
DISCUSSION
I. The evidence was sufficient to support the juvenile courts true finding that R.M. committed the robberies in counts 1 and 2
A. Standard of review
R.M. contends that the evidence was insufficient to support the juvenile courts true finding that R.M. committed the robberies either as an aider and abettor in count 1, the robbery of Kang, or as a participant in count 2, the robbery of Makowski. We disagree.
"The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court must `review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Ceja, supra, 4 Cal.4th at pp. 1138-1139.) We do not reweigh the evidence; even if the circumstances "might reasonably be reconciled with a contrary finding[, this] would not warrant reversal of the judgment." (People v. Proctor (1992) 4 Cal.4th 499, 529.)
B. The evidence was sufficient to support the true finding as to count 1
R.M. urges that the evidence was insufficient to support the finding that he aided and abetted in the robbery of Kang because Kang only saw M.T. and L.S. when she was robbed, and she merely heard and did not see a car. He claims that his possession of cash two hours after the robbery was insufficient to establish that he aided and abetted Kangs robbery. We disagree and conclude that the evidence was sufficient to support the juvenile courts true finding.
"Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) "A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime." (People v. Cooper (1991) 53 Cal.3d 1158, 1164.) For purposes of determining liability as an aider and abettor, the commission of robbery continues so long as the loot is being carried away to a place of temporary safety. (Id. at pp. 1170-1171.) Factors to be considered in determining whether the defendant is an aider and abettor include presence at the crime scene, companionship, and conduct before and after the crime, including flight. (People v. Haynes (1998) 61 Cal.App.4th 1282, 1294.)
The evidence supported the finding that R.M. knew of the robbery scheme and aided the others with the intent to facilitate the perpetration of the robbery of Kang. Kang identified L.S. as the man holding the shotgun and M.T. as the man who opened her passenger door and demanded her belongings. R.M. was detained in the company of L.S. and M.T. shortly after the robbery of Kang. Officer Binion testified that he followed the car in which L.S., M.T., and R.M. were eventually apprehended. Prior to the robbery of Kang, he saw three of the men stop and switch places, thus supporting the inference that they were sharing driving and robbing duties. Later, all three were found with proceeds of the robbery of Kang on their persons or in the car. R.M. was found with hundreds of dollars in cash on his person, and the others were found with cash as well as Kangs cellular telephone. The car was found to contain Kangs sandals. The car also contained items used in the robbery, including a ski mask and torn pieces of a T-shirt, which could have been used as masks.
We conclude the evidence supports the juvenile courts true finding that R.M. committed the robbery of Kang as an aider and abettor.
C. The evidence was sufficient to support the true finding as to count 2
R.M. contends that Makowskis tentative identification of R.M. as the robber was insufficient to support the true finding that R.M. robbed Makowski. We disagree.
Makowski was able to view R.M. for 20 seconds at close range. Makowski could see R.M.s eyes, the area below his eyes, the area above his eyebrows, some of his hairline, and his cheeks. Makowski identified R.M. as the person who pointed the shotgun at him during the robbery based on the shape of his eyebrows, the shape of his face, the shape of his head, and a mole or birthmark near his right eye. R.M. also identified tan colored tennis shoes in a photograph as those worn by the robber. As previously stated, R.M. was detained with M.T. and L.S. who were found with robbery proceeds and tools on their person and in their car. R.M.s arguments that Makowskis identification of R.M. was uncertain because it was nighttime, Makowski had little time to observe the men, and the mens features were hidden are attempts to have us to reweigh the evidence, which we cannot do. (People v. Proctor, supra, 4 Cal.4th at p. 529.)
We conclude the evidence was sufficient to support the true finding as to count 2.
II. The evidence was sufficient to prove that the offenses were committed for the benefit of, at the direction of, or in association with the 18th Street gang
R.M. and L.S. contend that the evidence was insufficient to support the juvenile courts finding that the offenses were committed for the benefit of the 18th Street gang. Both contend that there was nothing about the robberies to suggest that they were gang-related because there were no gang slogans yelled, distinctive attire, throwing of signs, visible tattoos, and the robberies did not take place within gang territory. Instead, they argue that the men were engaged in a frolic and detour unrelated to the gang. We disagree.
Section 186.22, subdivision (b)(1) provides for additional punishment when a defendant commits a felony "for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." Expert testimony concerning the culture, habits, and psychology of gangs is admissible as subject matter which is sufficiently beyond common experience so that the opinion of an expert would assist the trier of fact. (People v. Gardeley (1996) 14 Cal.4th 605, 616-617 (Gardeley).) "`Evidence of the defendants gang affiliation—including evidence of the gangs territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] [Citation.]" (People v. Albarran (2007) 149 Cal.App.4th 214, 224 (Albarran).) Expert opinion may form the basis from which a jury can find that the crime comes within the ambit of a section 186.22 gang enhancement pursuant to which the People must prove that the defendant committed a crime for the benefit of a criminal street gang with the specific intent to promote criminal conduct by gang members. (§ 186.22, subd. (b)(1); Gardeley, supra, at pp. 616-617.)
Gardeley, supra, 14 Cal.4th at page 619, is instructive. In that case, a gang expert testified that criminal street gangs relied on violent assaults to frighten the residents of an area where the gang members sold drugs, thereby securing the gangs drug-dealing stronghold. From the gang experts testimony, our Supreme Court held that "the jury could reasonably conclude that the attack on [the victim] by members of the Family Crip gang including defendants was committed `for the benefit of, at the direction of, or in association with that gang, and `with the specific intent to promote, further, or assist in . . . criminal conduct by gang members." (Ibid.)
We first note that L.S. admitted that he planned to commit robberies and targeted victims with the other gang members. Therefore the People did not rely solely on the gang experts testimony to establish L.S.s intent.
Despite the minors arguments that Officer Lees testimony was speculative and did not help establish the specific intent of the minors, we conclude that the gang experts testimony supported the juvenile courts finding that the robberies were committed for the benefit of, at the direction of, or in association with the 18th Street gang with the specific intent to promote criminal conduct by gang members. Officer Lee identified M.T. and L.S. as self-admitted 18th Street gang members. M.T., L.S., and R.M. wore gang tattoos on their bodies and were photographed throwing gang signs. Officer Lee testified that robberies benefit the gang by creating fear and intimidation throughout the community. Robberies also raise the status of the individual members who commit the robberies. The profits from the robberies are used to purchase narcotics and guns and commit more crimes. Officer Lee opined that R.M., L.S., and M.T. were working as a robbery crew. He believed that they were dividing up money for the work they put in for the 18th Street gang. Moreover, Officer Lee opined that gang members would be disciplined, ostracized or killed if they put in work without permission, or without paying a profit to the gang. Officer Lee also opined that a crime committed outside 18th Street gang territory would further the gang because the gang members could easily hide their 18th Street gang membership, ostensibly from the authorities.
Nevertheless, R.M. and L.S. argue that there was no evidence that the men yelled gang slogans or displayed their tattoos during the commission of the crimes. They cite People v. Morales (2003) 112 Cal.App.4th 1176 for the proposition that the men were engaged in a frolic and detour unrelated to the gang. In that case, the Fourth District Court of Appeal noted that while "it is conceivable that several gang members could commit a crime together, yet be on a frolic and detour unrelated to the gang," under the facts of that case, the jurys finding that a robbery-murder was committed within the gang enhancement was found to be supported by the evidence. (Id. at p. 1198.) There, the gang expert testified that the crime was committed for the benefit or direction of or in association with a gang because several gang members acted in association with each other, each could count on the others loyalty, the presence of multiple gang members would be intimidating, the crime would benefit the notoriety of individual gang members in the gang and the notoriety of the gang among rival gang members and the general public. (Id. at p. 1197.) The court found there was no evidence that several gang members committed robbery-murder together while on a frolic and detour unrelated to the gang. (Id. at p. 1198.) Similarly, here, there is no evidence that the sophisticated robberies committed by R.M., L.S. and M.T. acting in concert were a mere frolic and detour.
This is not like Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069,1078-1079, cited by L.S., in which the Ninth Circuit Court of Appeal held that the evidence was insufficient to establish that the defendant committed robberies with the specific intent to benefit a criminal street gang. In that case, the gang investigators testimony dealt exclusively in hypotheticals and did not give direct or circumstantial evidence of the defendants intent. Moreover, in that case, there was some evidence that the Christmas Day crimes were committed to get money for Christmas presents, rather than for any gang-related purpose. (Id. at pp. 1078, 1081, fn. 4.)
We conclude that the evidence was sufficient to support the juvenile courts finding that the robberies were committed for the benefit of, at the direction of, or in association with the gang, and with the specific intent to promote, further, or assist in criminal conduct by gang members. L.S.s further contention that reversal of the section 186.22 gang enhancements also requires reversal of both firearm enhancements must fail in light of our conclusion.
III. The juvenile courts order that appellant R.M. not associate with gang members was not authorized
R.M. contends that the juvenile court erred by ordering R.M. not to associate with any gang members because the imposition of a probationary order exceeded the juvenile courts jurisdiction after it committed R.M. to the DJJ. We agree.
Commitment to the DJJ has penal overtones, including institutional confinement with adult offenders, and removes the ward from the direct supervision of the juvenile court. (In re Allen N. (2000) 84 Cal.App.4th 513, 515.) A juvenile courts imposition of discretionary conditions of probation constitutes an unauthorized attempt to regulate the minors rehabilitation, a function solely in the hands of the DJJ after the minors commitment. (Id. at p. 516.)
Here, the juvenile court committed R.M. to the DJJ and ordered that the commitment not exceed five years. The juvenile court ordered "restitution to the victim, condition 28. [¶] 28A. $ 200 to the Victim Restitution Fund." The juvenile court also ordered: "15A. Dont associate with any gang members." The minute order states: "No gang activity." The People contend that the order prohibiting R.M. from associating with gang members was not a condition of probation. Rather, the People urge that the order only applied to R.M. while he was at Los Padrinos. As support for its argument, the People urge that no other conditions of probation were imposed. Instead, the People claim, the only other order permitted R.M.s parents and grandmother to visit R.M. while he was at Los Padrinos.
As in In re Allen, N. supra, 84 Cal.App.4th at page 515, footnote 2, R.M. does not challenge these statutorily required orders. (Welf. & Inst. Code, § 730.6.)
We disagree with the Peoples characterization of the juvenile courts order as an order limited to R.M.s stay at Los Padrinos. Neither the juvenile courts oral order nor the minute order imposes such a limitation. Rather the order is akin to those stricken as unauthorized probationary conditions in In re Allen N., supra, 84 Cal.App.4th at pages 514 to 515, i.e., prohibiting contact with certain people, requiring participation in anger control management counseling, prohibiting association with individuals known to be members of gangs, and prohibiting wearing or displaying gang clothing.
We must strike the juvenile courts order restraining R.M. from associating with any gang members as an unauthorized order.
IV. The juvenile court did not abuse its discretion by committing R.M. to the DJJ
R.M. contends that the juvenile court abused its discretion by committing R.M. to the DJJ because "the record did not support a finding that less restrictive alternatives would be ineffective or inappropriate for [R.M.]." We disagree.
A juvenile courts commitment decision may be reversed on appeal only upon a showing that the court abused its discretion. (In re Teofilio A. (1989) 210 Cal.App.3d 571, 579.) A reviewing court must indulge in all reasonable inferences to support the findings of the juvenile court, and such findings will not be disturbed on appeal when there is substantial evidence to support them. (In re Jose R. (1983) 148 Cal.App.3d 55, 61.) A decision to commit a minor to the DJJ will not constitute an abuse of discretion where the evidence demonstrates probable benefit to the minor from commitment to the DJJ and that less restrictive alternatives would be ineffective or inappropriate. (In re Teofilio A., supra, 210 Cal.App.3d at p. 576.)
"[I]f there is evidence in the record to show a consideration of less restrictive placements was before the court, the fact the judge does not state on the record his consideration of those alternatives and reasons for rejecting them will not result in a reversal." (Id. at p. 577.)
A commitment must conform to the purposes of Juvenile Court Law, namely, "the protection and safety of the public and each minor under the jurisdiction of the juvenile court and to preserve and strengthen the minors family ties whenever possible, removing the minor from the custody of his or her parents only when necessary for his or her welfare or for the safety and protection of the public." (Welf. & Inst. Code, § 202, subd. (a).)
Here, the record shows that the juvenile court considered R.M.s prior history, his request for Camp Community placement, his family circumstances, the Peoples request for DJJ commitment, and the probation officers recommendation for DJJ commitment. The juvenile court determined that DJJ commitment would give R.M., now an adult, the opportunity to be rehabilitated and protect the public. The juvenile court noted that Camp Community placement would not be appropriate because R.M. is an adult with two strikes under the juvenile court level, a history of prior felony convictions involving violence, and a current very serious felony. The juvenile court stated: "I think that is beyond [the design] for the juvenile court."
The juvenile court noted that R.M. considers himself an adult, and that when the crimes took place, he was 17 years and nine months old. Moreover, R.M. has been under the jurisdiction of the juvenile court from age 14. His prior history includes a petition that had been sustained against him for a section 245 violation involving the use of baseball bats against other citizens. After successfully completing his probation, R.M. had been permitted to go to Brazil with his family who tried to remove him from negative influences. But, he returned to become involved in more serious criminal activity with his fellow gang members, escalating from using baseball bats to shotguns. The juvenile court noted that in the current crimes, R.M. had actively participated in robbing two citizens at gunpoint and the crimes were committed for the benefit of a criminal street gang. R.M. and his companions were found in possession of the victims property, the crimes were sophisticated, and R.M. and his companions attempted to hide their identity.
We conclude that the juvenile court did not abuse its discretion in committing R.M. to the DJJ.
V. The juvenile court did not abuse its discretion in committing M.T. to the DJJ
M.T. contends that the juvenile court abused its discretion in committing him to the DJJ instead of opting for a less restrictive camp placement, because he had no prior arrests, detention, or petitions with the juvenile court delinquency system. We conclude that the juvenile court did not abuse its discretion in committing him to the DJJ.
As previously discussed, a juvenile courts decision to commit a minor to the DJJ is reviewed only for abuse of discretion. (In re Teofilio A., supra, 210 Cal.App.3d at p. 579.) The juvenile court may consider a DJJ commitment without previous resort to less restrictive placements. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396, 1397 [juvenile court did not abuse discretion in committing minor to DJJ after considering lengthy drug history, and heavy gang involvement, criminal record, behavioral problems, numerous probation violations, and repeated unauthorized absences from placements].)
M.T. urges that the juvenile court should have given more weight to the fact that M.T. had no arrests or petitions prior to the current case even though he had grappled with tremendous obstacles while growing up. Our review of the record shows that the juvenile court carefully considered the probation report and psychological report which recommended Camp Community placement. In ordering DJJ commitment, the juvenile court took into consideration the seriousness and sophistication of the crimes, M.T.s apparent adult lifestyle, and his prior history. Both the probation and the psychological reports described M.T.s lack of parental control, history of drug use, expulsions from eight schools, sense of entitlement to fight anyone disrespecting his 18th Street gang affiliation, and success in flouting the authority of the dependency court. The reports indicated that M.T. was detained from his mother in January 2007. He failed to comply with the structure and demands of the foster care system, ran away from his foster care home, and dropped out of school. He was then placed with an adult sibling. He abducted his seven-month-old sibling from the home of a relative caregiver on June 11, 2007, and a warrant was issued for his arrest. The reports also noted that M.T., who was 17 years and nine months old at the time of the crimes has a son.
The juvenile court noted that M.T. participated in nighttime robberies on the street using firearms and a getaway car. The fact that there were multiple parties engaged in the crimes increased the level of potential harm to the victims who were alone and vulnerable. The juvenile court noted that M.T. has adopted an adult lifestyle for the past several years and is a father himself. He has not attended school since middle school and does not have any intention or desire to do so. The juvenile court noted that he was not only absent without leave from foster care but abducted a sibling from a different foster care. Moreover, M.T.s ongoing problems in juvenile hall with peers and teachers indicated an inability to extricate himself from ongoing violent behavior and authority problems.
We conclude that the juvenile court did not abuse its discretion in committing M.T. to DJJ.
VI. The matter need not be remanded to the juvenile court for resentencing
R.M. and L.S. contend, and the People agree, that the matter must be remanded to the juvenile court for resentencing because the juvenile court set a maximum term of confinement in excess of the maximum prison time that could be imposed on an adult offender. (Welf. & Inst. Code, § 731, subd. (b).) While the juvenile court appears to have miscalculated the maximum adult confinement time, we conclude that the matter need not be remanded for resentencing because the juvenile court exercised its discretion in imposing a maximum commitment time of five years as to R.M. and L.S., well below the adult maximum terms calculated by the juvenile court, the People, R.M., and L.S, as well as the maximum time calculated by this court.
"Section 731 sets two ceilings on the period of physical confinement to be imposed. The statute permits the juvenile court in its discretion to impose either the equivalent of the `maximum period of imprisonment that could be imposed upon an adult [convicted of] the offense or offenses committed by the juvenile (§ 731, subd. (c)) or some lesser period based on the `facts and circumstances of the matter or matters that brought or continued the juvenile under the courts jurisdiction (ibid.)." (In re Julian R. (2009) 47 Cal.4th 487, 498.)
Here, the juvenile court set the maximum confinement time in this matter at 36 years. According to L.S., the juvenile court calculated the confinement time as follows: count 1, robbery, five years, plus 10 years for the gang enhancement; count 2, robbery, one year, plus 10 years for the gang enhancement, plus 10 years for the firearm enhancement. L.S. contends the maximum sentence should be 19 years four months. R.M. contends the maximum sentence should be 18 years four months. The People contend the maximum term should be 29 years four months. We calculate the maximum term as 19 years four months consisting of: count 1, the maximum term of five years for the robbery (§ 213), plus 10 years for the section 12022.53, subdivision (b) enhancement; count 2, one year (one third the midterm of three years) for the robbery, plus three years four months for the section 12022.53, subdivision (b) enhancement.
L.S. calculates the maximum term of 19 years four months as follows: five years for one robbery count, one year for the second robbery count; 10 years for one section 12022.53, subdivision (b) enhancement; three years four months for the second section 12022.53, subdivision (b) enhancement.
R.M. calculates the maximum term of 18 years four months as follows: 14 years as to count 1, consisting of the maximum term of four years for the robbery (§ 213) plus a term of 10 years for the section 12022.53, subdivision (b) enhancement; four years four months as to count 2, comprised of one year for the robbery (one third of the middle term of three years) plus three years four months for the enhancement (one third of 10 years).
The People calculate the maximum term of 29 years four months as follows: four years four months as to count 1, consisting of one third the middle term of three years for the second degree robbery (§ 213) and one third the 10-year term of the personal firearm use enhancements (§ 1170.1, subd. (a)); 25 years as to count 2, consisting of five years for second degree robbery (§ 213), 10 years for the personal firearm use enhancements (§ 12022.53, subd. (b)), and 10 years for the gang enhancement (§ 186.22, subd. (b)(1)(C)).
The Peoples calculation is based on its argument that the juvenile court should have imposed both the firearm enhancement and the gang enhancement because it specifically found that L.S. personally used the shotgun in count 1 and R.M personally used a shotgun in count 2. However, the record shows that the petition alleged that as to L.S. and R.M with respect to count 2 that "a principal personally used a firearm, a shotgun, within the meaning of [section 12022.53, subdivision (b) and (e)(1)]." The juvenile court amended count 1 to conform with proof to add the allegation pursuant to section 12022.53, subdivision (b) and (e)(1) "that there was a principal that was personally armed during the commission of the robbery as it relates to victim [Kang]." The record shows that the juvenile court found the criminal street gang allegation and the personal use of a firearm enhancement to be true, but did not make a specific finding as to personal use by any particular minor. Under section 12022.53, subdivision (e)(2), an enhancement for participation in a criminal street gang pursuant to section 186.22, subdivision (b)(1)(C) shall not be imposed on a person in addition to an enhancement imposed pursuant to section 12022.53, unless the person personally used a firearm in the commission of the offense. Therefore, the juvenile court could not impose both a firearm and enhancement and a street gang enhancement.
R.M. acknowledges that the juvenile court ordered his commitment not to exceed five years but argues that the juvenile court failed to exercise its discretion to set the period of maximum confinement based on the facts and circumstances. The People urge that because it agrees that the matter should be remanded for resentencing on the ground that the juvenile court improperly calculated the maximum sentence, it will not address the issue of whether the matter should be remanded because the juvenile court allegedly failed to exercise its discretion in setting the maximum term of confinement.
L.S. does not acknowledge either in his opening or reply brief that he was committed to a term of five years rather than 36 years.
The record shows that as to each minor, the juvenile court filled out the Judicial Council commitment form, indicating a maximum period of confinement of 36 years, "minor to be held a maximum of five years." Clearly, the juvenile court exercised its discretion in choosing a five-year commitment, well below the adult maximum confinement period. And, R.M.s contention that the juvenile court must show awareness that it had discretion to set the maximum confinement time for a period less than the statutory maximum must also fail. Our Supreme Court recently held that a written statement of the juvenile maximum period of confinement will suffice and that on a silent record, we presume that the juvenile court performed its statutory duty under Welfare and Institutions Code section 731, subdivision (c). (In re Julian R., supra, 47 Cal.4th at pp. 491-492 [where the juvenile court set a maximum confinement period by completing the appropriate Judicial Council commitment form, we presume "that the court exercised its discretion in setting a maximum period of physical confinement that was measured against both the ceiling set by the maximum adult prison term and a possibly lower ceiling set by the relevant `facts and circumstances (§ 731, subd. (c))."].)
In In re Julian R., the juvenile court selected the adult maximum term matter as the term to which the minor was committed. The minor urged, and the People agreed that the juvenile court had miscalculated the adult maximum term, and our Supreme Court affirmed the appellate court holding that the matter must be remanded for recalculation of the adult maximum term. (In re Julian R., supra, 47 Cal.4th at pp. 499-500.)
Here, however, because the juvenile court exercised its discretion in imposing a maximum commitment time of five years as to R.M. and L.S., well below the adult maximum of 19 years four months, the matter need not be remanded for resentencing.
DISPOSITION
As to each minor, the juvenile courts orders shall be modified to reflect an adult maximum confinement period of 19 years four months. As to R.M., we strike the juvenile courts order restraining R.M. from associating with any gang members as an unauthorized order. In all other respects, the juvenile courts orders are affirmed.
We concur:
DOI TODD, Acting P. J.
CHAVEZ, J.