Opinion
F078896
01-16-2020
In re R.Z., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. R.Z., Defendant and Appellant.
Candice L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 513981)
OPINION
THE COURT APPEAL from an order of the Superior Court of Stanislaus County. Rubén A. Villalobos, Judge. Candice L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Smith, J. and Meehan, J.
-ooOoo-
The court readjudged appellant R.Z. a ward of the court (Welf. & Inst. Code, § 602) after he admitted two counts of robbery (Pen. Code, § 211/counts 1 & 3) and a personal use of a firearm enhancement in count 1 (§ 12022.53, subd. (b)).
All further statutory references are to the Penal Code, unless otherwise indicated.
On appeal, appellant contends: (1) the court abused its discretion when it committed him to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ); and (2) the order committing him to the DJJ contains a clerical error. We find merit to appellant's second contention. In all other respects, we affirm.
FACTS
On July 11, 2018, shortly before 5:27 a.m., victim J.F. and his girlfriend, L.B., had just parked their car in their driveway in Ceres when appellant and two males exited a car that parked behind them on the street. Appellant, who was then 15 years old, approached J.F. and pointed a handgun at him while asking for property and telling him to get on the ground. J.F. complied. Appellant and two other males took his cell phone and wallet before returning to their vehicle and driving off.
At around 6:00 a.m. in Modesto on the same day, victim M.R. unlocked his vehicle, which was parked in his driveway. Suddenly, appellant and three other males pulled up in a vehicle and exited. Appellant ran up to M.R., pointed a gun to his face and told him to get on the ground. Appellant also told M.R., "I'm going to kill you ... if you don't give me your stuff." M.R. got on the ground and appellant and the other males started kicking and stomping him. Appellant and his confederates told M.R. to give them his property. M.R. gave them his wallet, cell phone, and keys before the four males drove off in their vehicle and M.R.'s vehicle.
Shortly before 7:00 a.m., Oakdale police officers located appellant and three other males by the stolen vehicle and a second vehicle. A loaded handgun was found in appellant's possession. M.R., J.F. and L.B. were taken to the scene for an infield line up. M.R. identified appellant through his clothing as the male who brandished a firearm at him. M.R. also identified the handgun and the second vehicle as the ones used during the Modesto robbery. L.B. identified appellant as the suspect who was armed during the robbery in Ceres and the second vehicle as the vehicle involved in that robbery.
On July 12, 2018, the Stanislaus County District Attorney filed a petition charging appellant with three counts of robbery (counts 1, 3, & 4) and one count of carjacking (§ 215, subd. (a)/count 2). Each count alleged a personal use of a firearm enhancement (§ 12022.53, subd. (b)).
On October 31, 2018, appellant admitted the robberies charged in counts 1 and 3 and the arming enhancement in count 1 in exchange for the dismissal of the remaining counts and enhancements.
Appellant's probation report indicated that although he did not have any behavioral issues at school, appellant had earned only18 credits and had been dropped from high school after attending only two months. During a probation department interview, appellant admitted smoking marijuana daily and drinking alcohol on the weekends. Appellant was evasive and did not want to talk about his gang associations, but he did not deny having them. Further, his criminal history showed he associated with active gang members, the other males involved in the underlying offenses were "gang related," and his conditions of probation included " 'gang terms.' "
Appellant's probation report summarized his criminal history as follows. On September 15, 2015, when appellant was 12 years old, he was declared a ward of the court based on his adjudication for first degree burglary (§§ 459/460, subd. (a)). In committing the underlying offense, appellant and several others entered a home and stole miscellaneous property. The court committed appellant to 60 days in juvenile hall and had him serve 10 days on the electronic monitor program (EMP).
On October 27, 2015, appellant was continued a ward of the court based on appellant's adjudication for first degree burglary, which he committed with another person. The court committed appellant to 105 days in juvenile hall and had him serve 30 days on the EMP.
On March 21, 2016, the court continued appellant as a ward of the court based on his adjudication for attempting to unlawfully take a vehicle (§ 664/Veh. Code, § 10851, subd. (a)), an offense he also committed with another person. The court committed appellant to juvenile hall for 120 days.
On September 29, 2016, the court committed appellant to juvenile hall for 60 days and had him serve 45 days on the EMP based on appellant violating his probation by possessing marijuana, failing to attend school, and failing to stay away from his previous school.
On February 15, 2017, the court committed appellant to juvenile hall for 90 days and ordered him to serve 30 days on the EMP based on appellant violating his probation by wearing gang related clothing, failing to attend counseling and school, continuing to associate with a co-responsible, failing to report to his probation officer, and submitting a drug test that was positive for THC.
On March 20, 2018, appellant was continued a ward of the court based on his adjudication for shoplifting (§ 459.5), public intoxication (§ 647, subd. (f)), and battery on a peace officer (§ 243, subd. (b)). During the underlying incident, appellant and another person entered a store and stole four cases of beer. The court committed appellant to juvenile hall for 120 days and ordered him to serve 118 days on the EMP.
On April 19, 2018, appellant's WRAP services were terminated because he was arrested, and he failed to participate in counseling.
WRAP services are an extensive counseling program for minors who have "a lot of red flags" where they receive one-on-one counseling. If a minor successfully completes what is asked of him, he can get out of the program in six months. Appellant began receiving WRAP services on November 21, 2017.
Appellant would leave with friends and not attend the meetings, or he would attend and not participate. Although appellant was on the last step of the program, he did not complete it because he violated the terms of the EMP and his services were terminated.
The report noted that appellant had numerous issues he needed addressed including the level of violence in his offenses, his gang involvement, and his drug use. It concluded appellant needed a secure setting where he could remain drug and alcohol free, participate in counseling and behavioral health services, attend school, and receive his high school diploma and job training. The report considered a lengthy commitment to juvenile hall. However, it deemed a commitment there inappropriate due to the "severity" of appellant's offenses, the programs being voluntary and not offered as part of a minor's individual treatment plan, and their frequent unavailability because institutional staffing and security took precedence over staffing for the programs.
In contrast, a minor's individualized case plan at DJJ is monitored and reassessed to reflect the minor's progress or regression, it provides multiple opportunities for the minor to continue his education or receive vocational training upon graduating high school or he could attend college and work toward completing his Associate of Arts degree. The report also noted that appellant's impulsivity, disregard for public safety, and the violence involved in his offenses made appellant an "imminent threat to public safety." Thus, the report recommended a commitment to DJJ.
On February 19, 2019, at appellant's contested disposition hearing, Probation Officer Carlos Sandoval testified that he had supervised appellant for approximately two years. Sandoval also testified that gang membership is a factor considered in recommending a DJJ commitment and that DJJ offers programs that address such membership. At juvenile hall, there were no gang programs and overall DJJ offers better quality programs than the hall. Further, although minors booked into the hall are automatically booked into the programs available there, some programs may not be active or might not be run at the time because of staffing or emergency protocols. Additionally, DJJ benefits minors committed there because when they arrive, minors are evaluated and assessed, and each minor is given a program specifically tailored to them. DJJ also has counseling services for alcohol, drugs, and a minor's emotional problems.
Based on his contacts with placement officers and his experience at other disposition hearings, Sandoval did not believe a group home was an acceptable placement option because it is a short-term program for a minor who is remorseful, can comply with the rules outside of the facility and who has a motive to change. Appellant did not meet this criteria because he did not appear remorseful, he did not accept responsibility for his illegal conduct, blaming it on others, drugs or the WRAP program, e.g., and out of custody, he committed new offenses and violated his probation. Further, although appellant's conduct at juvenile hall indicated he followed rules in a secure setting, Sandoval believed he would not do well in an unsecured setting and that he would pose a danger to others.
At juvenile hall, appellant had been earning 30 out of 32 points daily and was on the honor roll.
The prosecutor also introduced into evidence four pictures of appellant that were taken by his mother during one of her visits with appellant at juvenile hall that showed appellant making a gang sign with his hands. The photos had been received by appellant at the hall on January 12, 2019.
During the hearing, appellant's mother testified that she did not know the gang significance of appellant's hand sign. The court found that testimony by appellant's mother to be "completely incredible."
The prosecutor argued appellant should be committed to the DJJ based on the seriousness of his offenses, lack of remorse, failure to take responsibility for and to appreciate the seriousness of his conduct and because DJJ would provide him with an individualized program that included gang counseling. Defense counsel argued against a DJJ commitment because there had not been a showing that less restrictive alternatives would be inappropriate, and his good performance at juvenile hall showed there should be less restrictive alternatives available to him.
In discussing the seriousness of appellant's offenses, the court read victim M.R.'s statements that appellant threatened to kill him and that he and his cohorts kicked and stomped him while he was on the ground. The court also noted that at the DJJ, an individual plan would be developed for appellant, and mandatory programs of better quality would be available to him. The court further found that appellant had benefited and done well in the custodial setting of the juvenile hall. Nevertheless, although it noted that the probation officer could have provided more information on less restrictive alternatives and specific programs available at the DJJ, the court found appellant would clearly benefit from a DJJ commitment, in part, because his mother was unable or unwilling to assist appellant in leaving his entrenched gang lifestyle. The court also found that in addition to rehabilitating him, a DJJ commitment would hold appellant accountable for his offenses and provide protection to the community and that less restrictive alternatives would be inappropriate. Thus, the court aggregated time from previous petitions and committed appellant to the DJJ for a maximum term of confinement of 236 months. The court also awarded appellant 531 days of predisposition custody credit for the time he spent in custody at juvenile hall through the date of his disposition hearing.
The court specifically noted that it considered and rejected a foster home placement pursuant to Welfare and Institutions Code section 706.5 because it would be inappropriate. --------
DISCUSSION
Appellant contends the court abused its discretion in committing him to the DJJ because: (1) no evidence was presented at the disposition hearing that a juvenile hall placement would be ineffective or inappropriate for him; and (2) since no less restrictive alternatives were presented to the court, there was no evidence that such alternatives would be ineffective or inappropriate. There is no merit to these contentions.
"When determining the appropriate disposition in a delinquency proceeding, the juvenile courts are required to consider '(1) the age of the minor, (2) the circumstances and gravity of the offense committed by the minor, and (3) the minor's previous delinquent history.' [Citations.] Additionally, 'there must be evidence in the record demonstrating both a probable benefit to the minor ... and the inappropriateness or ineffectiveness of less restrictive alternatives.' [Citation.] 'A juvenile court's commitment order may be reversed on appeal only upon a showing the court abused its discretion. [Citation.]' " (In re Jonathan T. (2008) 166 Cal.App.4th 474, 484-485.)
" ' "Minors under the juvenile court's jurisdiction must receive the care, treatment, and guidance consistent with their best interest and the best interest of the public. ([Welf. & Inst. Code,] § 202, subd. (b).) Additionally, minors who have committed crimes must receive the care, treatment, and guidance that holds them accountable for their behavior, is appropriate for their circumstances, and conforms with the interest of public safety and protection. [Citation.] This guidance may include punishment that is consistent with the rehabilitative objectives. [Citation.]" ' " (In re Nicole H. (2016) 244 Cal.App.4th 1150, 1154-1155.)
A juvenile court is not required to attempt less restrictive alternatives before ordering a specific commitment. (In re Asean D. (1993) 14 Cal.App.4th 467, 473.) "[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." (In re Teofilio A. (1989) 210 Cal.App.3d 571, 577.)
The record established that appellant had a long history of committing serious offenses that culminated with two armed robberies, including one during which he threatened to kill the victim and he and his confederates kicked and stomped him after he got on the ground as instructed. Further, appellant was entrenched in the gang lifestyle, he committed the underlying offenses with other gang members, and his mother was unwilling or unable to assist him in abandoning that lifestyle. Appellant also had a substance abuse problem and he had trouble attending school when he was out of custody.
At the DJJ appellant would be evaluated and a program developed for him to meet his particular needs. He would also have access to counseling and programs to address his gang lifestyle, his substance abuse issues, and the underlying causes of his violent offenses, and he would be required to attend school. Moreover, appellant's good performance in a secure placement like juvenile hall showed that he would benefit from an equally secure commitment to the DJJ.
Additionally, the court could reasonably find from appellant's gang involvement and his increasingly violent behavior that appellant needed to be in a secure placement and that a nonsecure placement like a group home or foster care would be inappropriate because of the danger appellant would pose to other minors at the home and the public in general. Although juvenile hall was a secure placement, appellant had performed well there, and it offered some programs, numerous commitments to juvenile hall had been ineffective in changing appellant's behavior, it did not offer any gang programs, the programs it offered were voluntary and not always available because of staffing and security requirements, and they were inferior to those offered at the DJJ.
Further, the juvenile court law now recognizes the rehabilitative effect of punishment and a concern for the safety of the community. (Welf. & Inst. Code, § 202.) The court could reasonably conclude from the failure of past juvenile hall placements to curtail appellant's delinquent behavior, the danger appellant posed to the community, and the need to hold appellant accountable, that any placement short of a DJJ commitment would be ineffective or inappropriate in rehabilitating appellant. Thus, the record also supports the court's finding that less restrictive alternatives to a DJJ commitment would be inappropriate.
Appellant appears to contend the court did not consider less restrictive alternatives because the probation officer did not suggest any alternative placements for the court to consider. Thus, according to appellant, the record is devoid of evidence that less restrictive placements were inappropriate or ineffective. Appellant is wrong.
"[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." (In re Teofilio A., supra, 210 Cal.App.3d at p. 577.)
The probation officer discussed a group home placement during appellant's disposition hearing and he gave reasons why he thought such a placement would be inappropriate. The officer did not discuss a placement in any specific group home. However, based on consultations with placement officers and his experience at other disposition hearings, he believed such placements would be inappropriate for several reasons, including that they were short-term and required the ability to comply with the facility's rules while outside the facility. Further, as noted above, the court could reasonably find from appellant's history of committing serious and violent crimes and violating his probation that he required a long-term commitment in a secure setting. The court also implicitly considered and rejected a continued placement at home on probation because it had already tried that unsuccessfully. Additionally, the court specifically mentioned a foster home placement and a juvenile hall placement, and it rejected both placements. Therefore, since the court considered less restrictive alternatives, the court did not abuse its discretion when it committed appellant to the DJJ.
The Error in Appellant's Commitment Order
Appellant contends the order committing him to the DJJ must be corrected because it erroneously states he earned his 531 days of predisposition commitment credit at the DJJ. Respondent concedes.
"A trial court has inherent power to correct clerical errors in its records so as to make these records reflect the true facts." (People v. Little (1993) 19 Cal.App.4th 449, 451.)
It is clear from the record that appellant earned his predisposition custody credit in juvenile hall and that the statement in appellant's DJJ commitment order is a clerical error. Therefore, we will direct the juvenile court to issue an amended commitment order that corrects this error.
DISPOSITION
The juvenile court is directed to file an amended DJJ commitment order that indicates that appellant earned 351 days of predisposition custody credit at juvenile hall and to forward a certified copy to the appropriate authorities. In all other respects, the judgment is affirmed.