Opinion
A157967
06-29-2020
In re D.L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.L., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. J44263)
D.L. appeals following his no contest plea to a single count of assault with a firearm in violation of Penal Code section 245, subdivision (a)(2). His court-appointed counsel has filed a brief seeking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 to determine whether there are any arguable issues on appeal. We conclude there are no issues requiring further review and affirm.
BACKGROUND
D.L. lived with one or both of his parents in Vallejo until he was seven years old. It was a time when both parents were in and out of jail for drug offenses, and there were multiple incidents when, he says, his father physically assaulted his mother.
But beginning when he was seven, after his father went to jail and his mother was transient, D.L. went to live with his grandparents. He stayed with his grandparents when they moved from Vallejo to Groveland, California. D.L. liked living with his grandparents. They also took in two of D.L.'s siblings. His grandfather described D.L. as athletic and friendly. He was very involved in sports while he lived with them, attended school and never got into serious trouble. The summer of 2017, after D.L. graduated from middle school, he returned to Vallejo to live with his mother. They took up a transient lifestyle, staying in motels or with friends, and within months, D.L. was no longer attending school.
He returned to his grandparents' home in 2018. They were unable to enroll him in school because he had no academic credits beyond 8th grade, so he began a course of independent study. D.L. began having arguments with his grandmother. He felt she favored his cousin, who D.L. did not get along with. In August 2018, he stole a car from a relative and drove back to Vallejo to be with his mother. A relative saw D.L. driving the car in Vallejo, followed him and reported the stolen car to police. He was arrested by Vallejo police on August 26, 2018, and a petition was filed alleging D.L. had received stolen property, a motor vehicle, in violation of Penal Code section 496 , and committed misdemeanor possession of burglary tools (section 466), and driving without a license (Vehicle Code section 12500). On August 27, D.L. was released to his mother's custody and promised to appear for further hearings.
Unless stated otherwise statutory references are to the Penal Code. --------
While the allegations were pending, D.L. was arrested for a shooting that occurred on January 2, 2019, when he and some friends were seeking to purchase marijuana. A victim reported that she and D.L. were struggling on the floor. He attempted to shoot her in the stomach, but she jumped out of the way and was shot in the leg. When an adult male at the home went to check on the sound of the gunfire, D.L. shot him three times in the stomach. Both victims survived.
An amended petition was filed repeating the allegations based on the August 26, 2018 events, and alleging two counts of attempted murder under sections 664 and 187, and two counts of assault with a firearm under section 245 for the events occurring on January 2, 2019. In a negotiated disposition, D.L. admitted a single allegation of assault with a firearm. All remaining allegations were dismissed. It was agreed that D.L.'s maximum period of confinement was four years. The court granted D.L.'s request for a psychological evaluation and set a contested disposition hearing.
The psychologist diagnosed D.L. with dysthymic disorder, and mild cannabis use disorder. Further clinical evaluation would be needed to rule out Post Traumatic Stress Disorder. He was considered to be at moderately high risk to re-offend and needed treatment in predominantly six areas. D.L. needed to continue in school or vocational training. He would need to be further evaluated for a learning disability. He began using marijuana at age 11 and needed substance abuse training with a focus on preventing his relapse. He also needed formal skills-based anger management training. The cultivation of a pro-social peer group would prevent him from engaging in antisocial behavior. Family therapy would be useful for him to maintain an appropriate boundary with his mother, whose lifestyle contributed to his delinquency. Finally, he should have more in-depth evaluation and treatment of his mental health.
Although D.L. had no prior criminal record, the probation department considered him a high risk to re-offend. He engaged in the most serious criminal behavior while the allegations from summer 2018 were pending against him. He also had incidents of misbehavior in juvenile hall. Probation concluded that D.L. needed to be in a highly secure, structured and therapeutic environment for a sufficient period to ensure he would not pose a risk to the community when he is released.
Probation officials considered the California Department of Corrections and Rehabilitation's Division of Juvenile Justice (DJJ) and the Challenge Program at Solano County Juvenile Hall as possible placements for D.L. Officials rejected the idea of placing him in the Challenge Program because it would not properly address D.L.'s possible substance abuse problem, and D.L. would be eligible to leave the facility for supervised community service or field trips after 100 days. Moreover, after six months of behavioral therapy he could be allowed to leave the facility unsupervised. Officials were concerned about such early leave possibilities. They considered D.L. a flight risk because he was at large for a considerable time after he failed to appear as agreed when the initial charges were pending against him, and they thought he needed considerably more time in a secure placement to ensure he would not be a risk to the community. Accordingly, probation officials recommended D.L.'s commitment to the DJJ.
The court held a contested disposition hearing. A reverend and mentor discussed his work with D.L. while he was in juvenile hall. He met with D.L. two times each week, sometimes at D.L.'s request and sometimes as previously arranged. It was his opinion that D.L. should be placed in the Challenge Academy. But he never discussed D.L.'s offenses with him in any detail.
A probation counselor from the Challenge program described its emphasis on conflict resolution and restorative justice, and the program's rehabilitative goals. But the program did not have a substance abuse component. The counselor was part of the team that considered D.L.'s possible placement and agreed with the recommendation for DJJ. D.L.'s grandparents both testified that his behavior was generally good while he was living with them but deteriorated after he left them and lived with his mother. They were each willing to take D.L. back into their home to provide him a structured environment and a place to live.
Finally, the probation officer who prepared the department's report confirmed the recommendation of DJJ even though D.L. has no prior criminal history.
The court noted his mother's unfortunate neglect of D.L., and the wonderful support he got from his grandparents and their willingness to continue to help him. But his crimes were very serious and he may only have avoided a murder allegation because his gun malfunctioned when he first tried to shoot one of the victims. D.L. needed substance abuse treatment and a breadth of programs to address his mental health and behavior that were not locally available. The court ordered D.L.'s placement in DJJ and assessed a $100 restitution fine. Following receipt of a letter from appellate counsel, the court corrected its credit calculation and D.L. was properly awarded 99 days of pre-sentence credit. D.L. appeals.
DISCUSSION
There were no irregularities in the plea. D.L.'s waivers appear voluntary, knowing and intelligent. The time of confinement was fixed at four years and the award of 99 days credit was proper. We have no reason to question the restitution fine.
On this record, we also have no reason to question, or disagree with, D.L.'s commitment to DJJ. We hope he secures, and thoughtfully participates in, the treatment he obviously needs to find his way to rehabilitation. Although D.L. had no prior criminal history, it is providential that he did not murder two people in the 2019 shootings. Indeed, the relative leniency of his plea in these circumstances affords him a unique opportunity to turn his life around. We hope that will be the case, but it will be up to D.L. to change the trajectory of his life's path.
D.L.'s counsel has represented that she advised him of her intention to file a Wende brief in this case and of D.L.'s right to submit supplemental written argument on his own behalf. He has not done so. D.L. has also been advised of his right to request that counsel be relieved.
Our full review of the record discloses is no issue that warrants further review.
DISPOSITION
The disposition order and commitment to DJJ are affirmed.
/s/_________
Siggins, P.J.
WE CONCUR:
/s/_________
Fujisaki, J.
/s/_________
Petrou, J.