Opinion
E053091 Super.Ct.No. J236338
11-02-2011
In re A.P., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.P., Defendant and Appellant.
Lisa Holder, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Thomas S. Garza, Judge. Affirmed.
Lisa Holder, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, William M. Wood and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
The juvenile court found that defendant and appellant A.P. (minor) committed felony battery in which serious bodily injury was inflicted. (Pen. Code, § 243, subd. (d).) The juvenile court declared minor to be a ward and placed him on probation in the custody of his parents. Minor contends the trial court abused its discretion by denying his motion to reduce his conviction to a misdemeanor. (Pen. Code, § 17, subd. (b).) We affirm.
BACKGROUND
On October 29, 2010, the victim was walking home from school and saw "two kids sitting on the wall." Both of the kids got off of the wall, one of them was minor. Minor was paid by "the other kid" and then "said to the other kid, 'Do you want me to hit him?' And he said, 'Yes.' " Minor then approached the victim "and said, 'What are you looking at nigger?' " Minor then punched the victim in the jaw.
The victim went unconscious for a few seconds. "I literally saw stars and then I, like, I stumbled and almost hit a tree." The victim went home and was taken by an ambulance to the hospital. Due to the injury to his jaw, for two months he missed school and could only eat liquids and soft foods.
Minor told a police officer that he had been told that he could go to someone's house "to drink and smoke" if he would " 'punk' " the victim. Minor was not "aware that he had hurt the victim." The victim had never met or seen minor before.
After the juvenile court found the allegation true, minor's counsel requested, and the court ordered, that the probation department offer input on reducing minor's offense to a misdemeanor.
The probation report indicated that minor had a pending case due to stealing a pair of shoes, two weeks after he committed his present offense, "because he did not have any." He had previously been suspended from his middle school for smoking marijuana and was expelled for his present offense. He reported smoking marijuana two to four times a week beginning at age 11, the same age at which he first drank alcohol. He had drunk alcohol "approximately four times" with the most recent occurrence happening during the pendency of his case. His school discipline record included incidents where he hit another student in the face, continually made references to the size of a female student's breasts, sprayed cologne in another student's face, and was found in possession of drug paraphernalia and marijuana residue. The probation report states, "The victim suffered two fractures to his jaw from the minor's unprovoked attack. The minor states he is remorseful for making this poor decision and would not do it again." The report concluded, "minor is out of control and in need of guidance. All options were considered however, it is felt formal probation is in the minor['s], his parents[',] and the community's best interest."
At the dispositional hearing, minor's trial counsel requested, "even in light of the comments in the probation report" to reduce the offense to a misdemeanor pursuant to Penal Code section 17, subdivision (b). The juvenile court responded, "The Court is not inclined to reduce the charge at this point . . . in light of the seriousness of this matter with the victim receiving a fractured jaw in two places, and then two weeks later receiving information that the minor had been involved in stealing shoes from a store. The minor has a poor discipline record at school. He's had fights, charged with possession of drug paraphernalia as well as a sexual harassment charge against a female and has been suspended as well as expelled from the school."
DISCUSSION
Defendant contends the trial court abused its discretion by denying his request to reduce his battery conviction to a misdemeanor.
When a minor is found to have committed a "wobbler," i.e., an offense chargeable either as a felony or as a misdemeanor, the juvenile court is required to declare the offense to be a misdemeanor or felony. (Welf. & Inst. Code, § 702.) This is a discretionary sentencing decision. (See Pen. Code, § 17, subd. (b); People v. Superior Court (Alvarez)(1997) 14 Cal.4th 968, 974 (Alvarez).)Accordingly, the juvenile court's decision is reviewed for abuse of discretion. (Alvarez, at pp. 976-977.) " 'The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' [Citation.] Concomitantly, '[a] decision will not be reversed merely because reasonable people might disagree. "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." [Citations.]' [Citation.]" (Id. at pp. 977-978.) A juvenile court must base its decision on "individualized consideration of the offense, the offender, and the public interest." (Id. at p. 978.) Specifically, the court should consider the nature and circumstances of the offense, the offender's appreciation of and attitude toward the offense, or the offender's traits of character as evidenced by behavior and demeanor at trial and, in an appropriate case, the general objectives of sentencing. (Ibid.)
Minor has not met his burden of showing that the juvenile court's decision was irrational or arbitrary. To the contrary, the juvenile court reviewed the probation department's report and considered the nature of the offense as well as minor's character. To the extent that minor contends his youth, "remorseful attitude toward the offense, and the absence of a delinquent history" warranted reducing the finding to a misdemeanor, we note that we do not reweigh the factors. (See Alvarez, supra, 14 Cal.4th at pp. 977-978.) Accordingly, since the record does not affirmatively reflect any failure to consider relevant factors and evidence, an abuse of discretion has not been shown.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
HOLLENHORST
J.
RICHLI
J.