Opinion
A133859
08-15-2012
In re ISAAC M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ISAAC M., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. 79686)
Isaac M. (appellant), born in 1995, appeals a juvenile court dispositional order committing him to the Division of Juvenile Justice (DJJ). The court set the maximum term of confinement (MTC) at 11 years eight months. Appellant contends the juvenile court abused its discretion in committing him to DJJ and failed to exercise its discretion in setting his MTC. Appellant also contends his trial counsel rendered ineffective assistance in failing to advocate for a lower MTC. We reject the contentions and affirm.
As of July 1, 2005, the correctional agency formerly known as the Department of the Youth Authority (or California Youth Authority) became known as the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF). The DJF is part of the DJJ. (Welf. & Inst. Code, § 1710, subd. (a); Pen. Code, § 6001; Gov. Code, §§ 12838, subd. (a), 12838.3, 12838.5, 12838.13.) Statutes that formerly referred to the Department of the Youth Authority, such as Welfare and Institutions Code sections 731 and 733, now refer to the DJF. However, the People, the trial court, Judicial Council of California (JCC) form JV-665 (rev. Jan. 1, 2007), other cases, and certain of the California Rules of Court, refer to the DJF as the DJJ. (See, e.g., In re D.J. (2010) 185 Cal.App.4th 278, 280, fn. 1; Cal. Rules of Court, rule 5.805.) In this opinion, we likewise refer to the DJF as the DJJ.
BACKGROUND
Between March and December 2009, appellant was arrested numerous times for committing battery, second degree robbery, fighting in a public place, battery on school grounds, assault on school personnel, and vandalism. In December 2009, five petitions arising from these incidents were sustained, appellant was adjudged a ward of the juvenile court and committed to Camp Glenwood (Camp) and gang orders were imposed.
In July 2010, appellant was released from Camp and placed on Camp furlough. He complied with the conditions of his furlough contract and in November, was placed on Camp aftercare.
In January 2011, a notice of probation violation (Welf. & Inst. Code, § 777) was sustained after appellant tested positive for marijuana, was disruptive in class, and was in possession of gang attire. In March, another section 777 notice was filed after he twice violated his curfew.
On July 8, 2011, a Welfare and Institutions Code section 602 wardship petition was filed in Santa Clara Superior Court alleging that, on July 7, appellant committed vehicle theft (Veh. Code, § 10851, subd. (a)), was in possession of brass knuckles (Pen. Code, § 12020, subd. (a)(1)), and was driving without a license (Veh. Code, § 12500, subd. (a)). After he admitted the allegations, he was detained and transferred to San Mateo County's Youth Services Center (YSC) pending disposition.
On July 27, 2011, a Welfare and Institutions Code section 602 wardship petition was filed in San Mateo Superior Court alleging that on July 20 appellant committed assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a); count 1) with a for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)) and a great bodily injury (Pen. Code, § 12022.7, subd. (a)) special allegation; committed battery with infliction of serious bodily injury (Pen. Code, § 243, subd. (d); count 2) with a for the benefit of a criminal street gang special allegation; and actively participated in a gang (Pen. Code, § 186.22, subd. (a); count 3).
The probation department's detention report described the July 20 incident as follows:
After an evening program at YSC, appellant, a Norteño gang member, climbed over a chair, and struck another youth, a Sureño gang member, in the face with a closed fist. The victim received seven stitches above his eye as a result of appellant's assault. After the assault, a staff member grabbed appellant to keep him from pursuing the victim. Appellant resisted and, although he was held down by a staff member, was able to break free, grab an apple and throw it in the victim's direction. Appellant was eventually subdued and moved to secure housing.
On October 13, 2011, appellant admitted the July 27 petition's count 1 aggravated assault allegation and the for the benefit of a criminal street gang special allegation. The count 1 great bodily injury special allegation was stricken and the remaining counts were dismissed. The prosecutor indicated the maximum confinement time was 11 years eight months; the court officer submitted on that calculation. Appellant stated he understood that the maximum time he could spend in therapeutic detention was 11 years eight months.
Dispositional Report
The probation department's August 2011 dispositional report recommended that appellant be committed to DJJ, asserting he is a danger to the community. The report noted that in the year since appellant was released from Camp, four probation violations were filed, two bench warrants issued for his arrest, and two wardship petitions were filed alleging serious felony charges. It also noted that the frequency of appellant's disregard of court orders was increasing, as was his level of violence, criminal sophistication, and disregard for the community. The report noted that a Positive Achievement Change Tool indicated appellant's overall risk to reoffend was "high," and that the Resource Review Board concurred that appellant should be committed to DJJ where he would be provided appropriate services. The report also noted that despite numerous efforts to rehabilitate appellant, there had been no noticeable improvement in his behavior; instead, his behavior had escalated to serious violence with injury, for which he had neither shown concern nor accepted responsibility. Finally, the report noted that appellant would be provided substance abuse counseling, anger management counseling, and gang resistance and impact of crime on victim training at DJJ.
October 31, 2011 Dispositional Hearing
Appellant's probation officer, Laura Ramirez, testified at the contested dispositional hearing that she authored the August 2011 dispositional report recommending his commitment to DJJ. In making that recommendation, she considered his criminal record, prior Camp placement, and the new sustained charges against him. Ramirez stated appellant's mother informed her that appellant had obtained tattoos and, when she met with him on July 26, she observed Norteño gang tattoos on his arms.
Ramirez said the Resource Review Board based its DJJ recommendation on the fact that appellant had been provided services at Camp and YSC, was a danger to society, was not complying with court orders, and would get more structured treatment at DJJ. Ramirez stated, at DJJ, appellant would first be evaluated to determine whether he was taking his medication; if not, he would be housed in the mental health unit. If stabilized on his medication, he could be housed in the core treatment unit. Appellant would be provided anger management programs, could obtain his G.E.D. (General Education Diploma) and could participate in programs to work on impulse control, negative peer involvement, gang awareness, substance abuse and risk for violence.
Ramirez noted that YSC does not have a program to deter future gang involvement, but Camp does have such a group program. Ramirez said appellant's housing at YSC had been changed in September 2011 because appellant asked another minor whether he was a "gang banger," and said, "I'm a Norteño; don't let me catch you slipping." Thereafter, the other minor was attacked by another inmate, and appellant was moved to an area where he spent more time in his room and less time with other minors. Ramirez opined that appellant had not made any demonstrable efforts to remove himself from the gang lifestyle and he presents a danger to the community.
On cross-examination, Ramirez said she considered Camp and YSC as alternatives to a DJJ commitment. She acknowledged that a Camp report card stated that appellant was an excellent student, helped other students, and was always respectful and polite. Ramirez said the programs at YSC were "very limited" and conceded appellant had done well at Camp; but said, based on his behavior, he might pose a risk to other minors at Camp.
On redirect examination, Ramirez noted that in a July 2010 "furlough review board" letter appellant said: "During my stay at Camp . . . , I struggled in the program with me mugging people, my attitude, and gang lifestyle. I struggled with these things because I could not control my anger and my gang lifestyle."
According to appellant, "mugging" means looking at a person in a "bad way."
Angelica Ayala, appellant's former therapist, saw appellant weekly for approximately two years up to July 2011. In individual and family therapy, she worked with him on issues regarding his weight, communication, anger management, controlling his emotions, and impulse control. She said he had made some progress in therapy and still had work to do. He never spoke with her about his gang affiliation or his marijuana use.
Appellant's mother testified he was respectful, obeyed her, and got A's and B's in school. She believed he commits angry acts when he is bored. She opined that he should be "locked up" for a short time because a long confinement would not help him. On cross-examination she said she was unaware that he is a Norteño gang member until she read "the paperwork." She conceded appellant was expelled from high school in 2009 for numerous behavior problems, including threatening another student. She said she believed she could keep him from being involved with gangs by spending more time with him.
Family friend Carlos S. testified he had known appellant for six years and visited him every week or two during that time. He described appellant as always nice, respectful, and "really quiet." Carlos said he had never seen signs of appellant's anger or violence at home and was unaware appellant was involved with the Norteño gang. He also said that appellant had no problem with adults.
Appellant testified he did not tell his mother and Ayala about his gang membership because he was embarrassed and wanted to keep it to himself. He did not know why he had gotten in trouble at school. He said he hit the minor at YSC because he was "having a bad day," experimenting with not taking his medication, and having family problems. He admitted he makes bad choices. He denied the September 2011 incident at YSC and said he believes he can stay out of trouble because he has "been doing good," taking his medication, and is agreeable to further therapy.
On cross-examination, appellant denied assaulting the minor at YSC because the minor was a Sureño. However, he conceded he has been a Norteño for two years and dislikes Sureños; and it is common for Norteño members to be violent toward Sureños. He did not know what his future plans were regarding his gang affiliation, and said he would not "hang out" with Norteños as much as he used to when released from custody. He conceded his new tattoos represent his commitment to the Norteño gang, and said he got the tattoos when he was not taking his medication. He said he now knows how to handle his anger and will avoid the gang lifestyle when released from custody.
The prosecutor urged the court to follow the recommendation of the probation department and argued a DJJ commitment was appropriate and was necessary to protect the community. Defense counsel argued that instead of a DJJ commitment, the court could let appellant remain at YSC for a year or other appropriate period since appellant was doing well there, taking his medication, and working on his programs. Alternatively, the court could return appellant to Camp since he had previously done well with its structure, there were programs there, and he could learn as a trade. Defense counsel argued, upon his release and while on probation, appellant could continue in therapy.
The court found not credible appellant's testimony that he did not know why he got the recent tattoos and that he did not attack the victim at YSC because the victim was a Sureño. The court noted that it had carefully considered the August 2, 2011 probation report and the October 13, 2011 behavioral summary from YSC. In committing appellant to DJJ, the court stated the following: Although appellant was doing better at YSC and his stay there was "average," his school behavior in 2009 was poor with "lots of gang references." Appellant recently committed a "pretty serious assault" involving a rival gang member. "Nothing has changed regrettably in the last two years despite the court's efforts to provide [appellant] with resources from probation." Although appellant did well at Camp, he violated his probation four times in the year after his release from Camp and admitted new serious felony charges filed against him in Santa Clara County. Although appellant had been offered programs at Camp, YSC, weekly counseling, and individual anger management, he continued to be out of control, aggressive, and committed a serious gang-related assault at YSC. Appellant is a danger to the community. "If he were released from therapeutic detention, in the court's mind based on his record and his behavior, he would go right back to the gangs . . . , get in trouble again, and he would be right back in [YSC]." At DJJ, appellant would have the opportunity to earn his high school diploma, attend substance abuse and anger management counseling, and attend gang resistance and impact of crime on victim training. The court noted that it had committed him to Camp twice, but determined a DJJ commitment was more appropriate given appellant's serious, gang-related, unprovoked attack on an innocent person at YSC, who appellant believed was a rival gang member.
The behavioral summary from August 4 to October 13, 2011, stated that since his last court date appellant had conformed to YSC's rules and regulations, attended school daily, and participated in all educational and recreational programming offered. It stated that overall, appellant had had an "average" stay at YSC.
The court determined that appellant's MTC was 11 years eight months with 481 days of credit for time served.
DISCUSSION
I. Appellant's Commitment to DJJ Was Not an Abuse of Discretion
Appellant contends the court abused its discretion in committing him to DJJ because the prosecution failed to demonstrate that less restrictive alternatives were inappropriate or ineffective.
An appellate court reviews a DJJ commitment decision for abuse of discretion. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) In conducting our abuse of discretion review, we must indulge all reasonable inferences to support the juvenile court's decision and will not disturb its findings if they are supported by substantial evidence. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.)
The record must demonstrate both a probable benefit to the minor by a DJJ commitment and the inappropriateness or ineffectiveness of less restrictive alternatives. (In re Angela M., supra, 111 Cal.App.4th at p. 1396.) However, these must be considered with the purposes underlying the juvenile court law: "protection and safety of the public" (Welf. & Inst. Code, § 202, subd. (a)) and "care, treatment and guidance that is consistent with [the minors'] best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances" (§ 202, subd. (b)). (See In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684.) "Although the DJJ is normally a placement of last resort, there is no absolute rule that a DJJ commitment cannot be ordered unless less restrictive placements have been attempted. [Citations.] A DJJ commitment is not an abuse of discretion where the evidence demonstrates a probable benefit to the minor from the commitment and less restrictive alternatives would be ineffective or inappropriate. [Citation.]" (In re M.S. (2009) 174 Cal.App.4th 1241, 1250.)
All undesignated section references are to the Welfare and Institutions Code.
Appellant argues that, although the assault with means likely to cause great bodily injury qualified him for a DJJ commitment, it did not involve a weapon. He also argues that he did not prey upon the general population or less vulnerable individuals and was only 15 years old at the time he committed the assault. As a result, he asserts there was no reason to believe that a second Camp commitment would not have been effective, particularly given his "excellent" performance during his first Camp commitment. For the first time on appeal appellant argues, if the juvenile court determined that Camp was an inappropriate placement for him, it could have committed him to an out-of-county boys' camp or ranch since he "might well have benefitted from the change of scene, and isolation from negative influences."
We conclude the court's commitment of appellant to DJJ was not an abuse of discretion. While housed at YSC appellant committed a gang-related assault with force likely to commit great bodily injury against an innocent minor. Appellant admitted his Norteño gang membership; admitted he got new gang tattoos following his release from Camp, signifying his commitment to the Norteño gang; and admitted he did not know what his future plans were regarding his gang affiliation. YSC has no gang program. Although Camp has a gang program and appellant did well during his stay there, following his release from Camp the frequency of his violation of court orders increased as did his level of violence, criminal sophistication, and disregard for the community, and his overall risk to reoffend was rated as "high." At DJJ, appellant would get more structured treatment than at Camp, and based on his escalating behavior, he might pose a risk to other minors at Camp. In addition, evidence was presented that, while at DJJ, appellant would receive services including assessment and evaluation of his treatment needs, academics, substance abuse and anger management counseling, and gang resistance and impact of crime on victim training.
We conclude the court considered all the relevant factors prior to committing appellant to DJJ and no abuse of discretion is demonstrated.
II. MTC
A. Failure to Exercise Discretion
Appellant contends, under section 731, subdivision (c), the juvenile court failed to understand and exercise its discretion to set an MTC.
Effective September 1, 2007, section 731, subdivision (c) provides in relevant part: "A ward committed to the [DJJ] also may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter or matters that brought or continued the ward under the jurisdiction of the juvenile court, which may not exceed the maximum period of adult confinement as determined pursuant to this section."
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Section 726, subdivision (c) provides in relevant part: "If the minor is removed from the physical custody of his or her parent or guardian as a result of an order of wardship made pursuant to section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court. [¶] As used in [Section 726] and in Section 731, 'maximum term of imprisonment' means the longest of the three time periods set forth in paragraph (2) of subdivision (a) of Section 1170 of the Penal Code . . . ."
Where, as here, the court elects to aggregate the period of physical confinement based on multiple counts and/or petitions, "the 'maximum term of imprisonment' shall be the aggregate term of imprisonment specified in subdivision (a) of Section 1170.1 of the Penal Code . . . . [¶] If the charged offense is a misdemeanor or a felony not included within the scope of Section 1170 of the Penal Code, the 'maximum term of imprisonment' is the longest term of imprisonment prescribed by law." (§ 726, subd. (c).) Subordinate misdemeanor terms are calculated as one-third of the maximum term for such offenses. (In re Eric J. (1979) 25 Cal.3d 522, 536-538.)
When a minor is committed to DJJ, the juvenile court is required to indicate the MTC. (§ 726, subd. (c); In re Julian R. (2009) 47 Cal.4th 487, 491.) That confinement period may be less than, but not more than the prison sentence that could be imposed on an adult convicted of the same crime. (In re Julian R., at pp. 491-492.) In setting the MTC, the court must consider the " 'facts and circumstances of the crime.' " (§ 731, subd. (c); In re Julian R., at p. 492.) On the commitment form, JCC JV-732 (rev. Jan. 1, 2009), the juvenile court is required to acknowledge its consideration of the individual facts and circumstances of the underlying matter by checking a box. (In re Julian R., at pp. 498-499.) However, the court need not make an oral pronouncement of the MTC accompanied by a statement of reasons. (Id. at pp. 496-498.) On a silent record, we presume the juvenile court performed its duty to consider the facts and circumstances of a minor's case when setting the MTC. (Id. at pp. 498-499.) This presumption is in accord with the presumption of Evidence Code section 664 that official duty has been performed and the general rule that the trial court is presumed to have been aware of and followed the applicable law. (In re Julian R., at p. 499.)
At the October 13, 2011 hearing, at which the court accepted appellant's admission to aggravated assault with a gang enhancement alleged in the July 27 petition, the following colloquy occurred:
"The Court: Okay. And what is the max time?
"[The Prosecutor]: [Eleven] years and eight months, your honor.
"[Defense Counsel]: The report indicates max time of six years and two months. [¶] . . . [¶]
"[The Prosecutor]: That's probably before he admits today.
"[Defense Counsel]: Just thought I would throw that in the mix that something disagrees. [¶] . . . [¶]
"The Court Officer: Just a note, the report does not include any of the matters that are before the court as none of those were sustained at the time of writing the report. [¶] We would submit on the [prosecutor's] calculation of the maximum."
Thereafter, the court asked appellant if he understood that the maximum time he could spend in therapeutic detention if he admitted the allegations was 11 years eight months. Appellant responded affirmatively.
At the October 31, 2011 dispositional hearing, the following colloquy occurred:
"The Court: I want to confirm in this case that the max time here is [11] years eight months as I understand it. Is that correct?
"[The Prosecutor]: Well, I was speaking with [the former prosecutor] about that before coming to court because I was a little bit confused about the stated max time. And I actually think with the two cases it's [12] years eight months. I don't know if you want to give [defense counsel] and I a moment to
"The Court: We can. I took notes at the time of the admission, and I advised [appellant] that it was [11] years eight months based upon the agreement of the parties. [¶] . . . [¶] This is an offense under [section 707, subdivision (b),] which would make [appellant] eligible for [DJJ]. But I am more concerned about the max time.
"[The Prosecutor]: Okay.
"The Court: Which I advised [appellant] on October 13 was [11] years eight months. [¶] . . . [¶]
"[The Prosecutor]: Your honor, I think we will leave things as they were previously stated on the record.
"The Court: Okay. Well, that was part of the admission.
"[The Prosecutor]: Right.
"The Court: And the parties agreed at that time that it was [11] years eight months.
"[The Prosecutor]: We don't want to disturb it. Okay.
"The Court: I'm going to correct that. As relates to the probation report, it indicates the maximum confinement time is different. But it is [11] years eight months.
"[The Prosecutor]: I think the probation report was written before the admission to this offense.
"The Court: Yes, that's a good point."
Thereafter, on page 1 of the disposition form (JCC JV-665 (rev. Jan. 1, 2009)) filed on November 8, 2011, the court checked the box stating, "The maximum time the child may be confined in secure custody for the offenses sustained in the petition before the court, with the terms of all previously sustained petitions known to the court aggregated, is (specify):11 years [eight] months."
On page 2 of the commitment form (JCC JV-732 (rev. Jan. 1, 2009)), also filed on November 8, 2011, the court checked the box indicating an MTC of 11 years eight months, however, it did not check the box acknowledging its consideration of the individual facts and circumstances of the case in its determination of the MTC.
The parties agree that pursuant to section 726, appellant's aggregated maximum term of imprisonment was 12 years eight months, not 11 years eight months.
Appellant argues the colloquies between the court and counsel recited above establish that the court did not choose between a 12 years eight months MTC and an 11 years 8 month MTC. Instead, "it simply selected the lower term to preserve validity of [appellant's] admission." He further argues the court's failure to check the box on the commitment form acknowledging it considered the facts and circumstances of the case in determining appellant's MTC, confirms it failed to exercise its discretion under section 731 in determining an MTC. He asserts the error was prejudicial because given the "moderate nature of [his] offense, and his extreme youth," the court "might" have imposed a lesser MTC had it known it had discretion to do so.
The People state that despite the court's failure to check the box on the commitment form, its imposition of an MTC of 11 years eight months, one year less than the maximum term it could have imposed, establishes the court considered an alternative MTC and considered the unique facts and circumstances of appellant's case in doing so.
Based on our record, the court's imposition of an MTC of 11 years eight months does not, on its own, demonstrate the court considered the unique facts and circumstances of appellant's case. Instead, it reflects an initial error in calculating the maximum statutory term that the court adhered to because it had been part of appellant's admission to the petition. However, implicit in the court's decision to impose the lower term is its awareness that it had the discretion to do so.
Moreover, the court's failure to check the box on the commitment form, as that form seems to require (In re Julian R., supra, 47 Cal.4th at p. 499, fn. 4), while relevant, is not conclusive evidence that the court did not understand its obligation to consider the facts and circumstances related to appellant's crimes in exercising its discretion in setting appellant's MTC. The record in this case, discussed in part I., ante, could not be more clear that at the time it imposed sentence the court was intimately familiar with these facts and circumstances and relied upon that information in selecting an appropriate disposition. Thus, the inference of a failure to consider the relevant facts and circumstances arising from the failure to check the appropriate box is overcome by other evidence in the record.
B. Ineffective Assistance of Counsel
In a related claim, appellant contends his trial counsel was ineffective in failing to advocate for a lower MTC. He argues that such an argument might have swayed the court to set a lower MTC particularly because appellant was 15 years old when he committed the most recent offense, the offense was "simply punching" and "moderate," his positive performance at Camp suggested he could "turn his life around in a shorter time," and his mother was able to provide him a home where he would be welcomed and supervised.
"In assessing claims of ineffective assistance of trial counsel, we consider whether counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.]" (People v. Carter (2003) 30 Cal.4th 1166, 1211.) The defendant has the burden of establishing ineffective assistance of counsel. (Ibid.)
We conclude, based on the record before us, appellant's counsel was not ineffective in failing to advocate for a lower MTC and it is not reasonably probable the court would have set a lower MTC had appellant's counsel urged it to do so. Notwithstanding appellant's attempts to minimize the seriousness of his offense, the court described the most recent offense as a "pretty serious assault" on a rival gang member. The court noted that appellant violated his probation four times in the year after his release from Camp, committed serious offenses in Santa Clara County, and committed the serious assault at YSC. The court was clear that, although appellant had been offered numerous programs in his prior Camp and YSC placements, he continued to be out of control and aggressive and was a danger to the community. The court expressed much concern regarding appellant's gang membership and hatred of Sureños, stating, "If he were released from therapeutic detention, . . . based on his record and his behavior, he would go right back to the gangs [and] get into trouble again." Given the seriousness and escalating violence of appellant's conduct and his demonstrated failure to reform in prior placements, appellant's counsel could reasonably determine that advocating for a lower MTC would be futile; and it is not reasonably likely that, had counsel so advocated, the court would have set a lower MTC. No ineffective assistance of counsel is demonstrated.
DISPOSITION
The order committing appellant to DJJ is affirmed.
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SIMONS, J.
We concur. ___________
JONES, P.J.
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BRUINIERS, J.