Opinion
A166367
01-19-2024
In re G.L., a Person Coming Under the Juvenile Court Law. v. G.L., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. J-39849-10
RICHMAN, J.
On August 6, 2022, defendant G.L. participated in two robberies. He subsequently admitted a violation of Penal Code section 211 and the juvenile court ordered him placed in a Secure Youth Treatment Facility (SYTF) in Sonoma County. G.L. argues the determination that a less restrictive alternative disposition was unsuitable is not supported by substantial evidence, and the court erred in refusing his counsel's request to apply his custody credits to his baseline term under In re Ernesto L. (2022) 81 Cal.App.5th 31 (Ernesto L.). We affirm.
BACKGROUND
Shell Station Robbery
On August 6, 2022, at about 5:10 p.m., Santa Rosa Police responded to a Shell gas station on Corby Avenue to address a report of three Hispanic men who had just attacked a victim, then fled the scene in a Ford F-150 truck. The victim reported that he was pumping gas at the station with two of his friends when one of the three suspects asked, "Where are you from?" The three suspects then charged the victim, who fell to the ground. One of the suspects, wearing a ponytail, pulled out a knife and stabbed the victim on his head. Another suspect tore a necklace with a crucifix from the victim's neck, valued at $2,500. The suspects then fled in a Ford F-150 truck, which was later stopped after police learned the license plate number. G.L. was in the truck along with Ismael G., a known Sureno gang member on juvenile probation. A search of the truck yielded a light blue face mask, a silver neck chain, a large tire iron, a kitchen knife, a white Samsung cell phone, and several open containers of beer.
The emergency room doctor told police that the injury to the victim's head was inconsistent with a normal stab wound, and that the injury, which required multiple stitches, was more than likely caused by a blow from a blunt instrument.
Sunset Avenue Robbery
Some twenty minutes later, on August 6 at about 5:30 p.m., Santa Rosa Police responded to a report of a robbery at Sunset Avenue and McMinn Avenue in Santa Rosa. The victim reported that he was walking on Sunset Avenue when he noticed three males walking behind him. One of the suspects, later identified as Ismael G., walked in front of the victim and pointed a pistol at him. The victim put his hands up while another suspect held the victim's arms back and the third suspect went through his pockets. The suspects took the victim's Samsung cell phone, a wallet, $60 in cash, and a black backpack.
Using a tracking application, the victim determined that his cell phone was on West Avenue, where the three suspects, including G.L., were being detained.
The Charges
On August 9, 2022, the Sonoma County District Attorney filed a juvenile wardship petition (Welf. &Inst. Code, § 602, subd. (a)) alleging that G.L.-then 16 years old-committed two counts of second degree robbery (Pen. Code, § 211) (counts 1 &2) and assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) (count 3). As to counts 1 and 2, the petition further alleged that G.L. committed the offenses for the benefit of a criminal street gang pursuant to Penal Code section 186.22, subdivision (b)(1)(A). As to count 3, it was further alleged that G.L. personally inflicted great bodily injury within the meaning of Penal Code section 1203.075, subdivision (a), and Penal Code section 12022.7.
Further undesignated statutory references are to the Welfare and Institutions Code.
On September 12, G.L. admitted the first robbery count (count 1) in exchange for the dismissal of the remaining counts and gang allegations pursuant to In re Jimmy P. (1996) 50 Cal.App.4th 1679. The great bodily injury allegation with respect to count 3 was dismissed outright.
Disposition Hearing
A disposition hearing took place on September 27, in advance of which the probation department prepared a report and recommendation.
The report detailed a prior probation history beginning on March 5, 2021, when G.L. was declared a ward of the court after a sustained violation of Vehicle Code section 20002, subdivision (a), based on an incident in which he crashed his mother's car into someone's home. G.L. was placed on electronic monitoring, but "failed to keep his EM monitor charged and repeatedly left his home without permission." He was ordered to participate in Seneca's wraparound program on March 26.
A second notice of violation was filed on April 27, after G.L. "was contacted wearing a red hat, red and blue sweat pants, red shoes, and a red bandana." He was subsequently booked into juvenile hall and admitted to being in possession of a knife, a graffiti device, 12 cannabis vape cartridges, and alcohol. G.L was again placed on electronic monitoring with gang conditions.
Shortly after July 1, G.L. was detained in Medford, Oregon and charged with unlawful possession of methamphetamine, unlawful delivery of methamphetamine to a person under 18, and carrying a concealed weapon. When questioned by officers, G.L. admitted to being part of the Sureno gang and stated that he carried the gun for protection. He was placed on probation for one year and eventually released on electronic monitoring.
On December 2, shortly after being released from enhanced supervision, G.L. was taken into custody at Casa Grande High school after he was found in possession of a 7.5-inch folding knife. G.L was eventually transported to the Coastal Valley Academy in San Luis Obispo, and "[b]y all accounts, [G.L.] thrived at CVA, and he successfully completed the program in just six months."
After completing the program at CVA, G.L. was placed on electronic monitoring "as a safeguard," and "[f]or the next several weeks, [his] adjustment to the community was positive." However, three days after he was removed from electronic monitoring on August 3, 2022, he was apprehended for the instant felonies.
The report also contained statements from the victims of the robberies. The first victim "shared that he has experienced 'a lot of anxiety' since the robbery. He said, 'It's been on my mind ever since. The bigger issue is because it was so close to my home. My concern is that [G.L.] and people close to him might retaliate against me or my family. The robbery happened less than a block from my house.'" The second victim stated that" 'ever since the robbery, I sort of lost control of everything. I haven't been well financially or physically. I'm actually really scared to go outside now, and I feel like I can't go out by myself. I have so much fear now and I always have to look behind me.'" The second victim suffered a fractured nose and incurred some $16,000 in emergency services.
The report recommended: "Due to the seriousness of these crimes, the extreme violence and intimidation, the use of weapons, and the physical and emotional injuries to the victims, it was determined that any communitybased treatment would be inappropriate, due to his public safety risk.
"The Probation Department believes a commitment to a Secure Youth Treatment Facility (SYTF), based on [G.L.]'s eligibility per 875 WIC, will offer him the extensive services he needs. It is strongly believed that the minor should remain in a secure environment to receive these necessary rehabilitative services, while also recognizing the need for community protection. [G.L.] had great success when he was in a structured and controlled environment provided by the Costal Valley Academy. His commitment to a SYTF would provide similar consistent care and support toward his educational, emotional, and career goals. A recommendation to a less restrictive environment does not appear to be a viable option at this time given the prior rehabilitative efforts attempted by the Court and this Department."
At the disposition hearing, G.L.'s attorney argued briefly in favor of releasing G.L. back into his parents' custody. After hearing the arguments of the parties, the juvenile court concluded that placement in an SYTF was appropriate:
"The Court believes that [G.L.] would benefit from the reformatory and rehabilitative services available in the Secured Youth Treatment Program.
"The Court also finds that the less restrictive alternative disposition options were considered by this Court and found to be unsuitable, and the Court has made this determination based on the criteria listed in 875(3), factors (A) through (E).
"As to the severity of the offense or offenses for which the minor has been most recently adjudicated, I've looked at these particular offenses, and I realize that he may have had the lesser role than some of the other adult offenders. There were gang overtones involved in these cases. In fact, the gang enhancements were dismissed with consideration, so the Court can consider that as part of disposition.
"One of the victims was assaulted with a tire iron, and allegedly the other victim was assaulted possibly with a firearm. And although [G.L.] himself was not in possession of the tool or the firearm, he was present and was part of the three people that engaged in criminal conduct, very serious criminal conduct, over a very short period of time. These robberies were committed within 20 minutes of each other.
"As to his prior previous delinquent history, the Court has looked very closely to that. It's a shame, because when he's in a structured setting, he does extremely well, and we saw that demonstrated while he was at the Coast Academy program. But, unfortunately, when not in a structured program, that's when the problems arise.
"The Court did place him on probation originally for a misdemeanor hit and run. There were additional charges for gang graffiti and driving on a suspended license that were dismissed with consideration. The Court thought that probation supervision would be appropriate in his case. Unfortunately, he continued to violate probation. And after sustaining a violation of probation, the Court added structure to his probation supervision by ordering that he participate in Seneca's wraparound services.
"After additional violations of probation, [G.L.] took off from the supervision of the Court, and that was when he was detained and arrested in Jackson County Juvenile Detention Facility in Medford, Oregon.
"While he was on the run from the Court, he was charged with unlawful possession of methamphetamine, unlawful delivery of methamphetamine, and carrying a concealed weapon. That case was adjudicated for a possession of a firearm offense and he was returned to California.
"Unfortunately, after being placed on probation again back here in California, there again was multiple violations of probation and there was a case in which he was found to be in possession of a weapon, a 7.5-inch folding knife, on a school campus. The Court did consider at that time his participation on probation supervision, his participation on wrap services, and his later conviction up in Oregon, to order that he go to the Coastal Valley Academy program in San Luis Obispo, and like I said, when he was in the structured setting, he did extremely well.
"He graduated from that program, came back to Sonoma County, and the Court placed him back on probation on July 5th and ordered that he participate in wrap services. Unfortunately, less than-or a little more than a month later, the incidents before the Court are what has brought him here today to the sentencing.
"Again, the Court feels that when he does well, he-the Court feels that he does well in a structured setting, and the Court feels that the programming, treatment, and education that he'll receive here in the Secured Youth Treatment Program would be appropriate to meet his treatment needs. Since it is here in Sonoma County, he would be close to his family; he would have the support of his parents and his brother as he participates in the program.
"So for those reasons, the Court feels that the least restrictive alternative at this time, given his history, would be the Secured Youth Treatment Program."
G.L. filed a notice of appeal.
DISCUSSION
The Finding That a Less Restrictive Alternative Is Unsuitable Is Supported By Substantial Evidence
Standard of Review and Applicable Law
"[T]he juvenile court has long enjoyed great discretion in the disposition of juvenile matters ...." (In re Greg F. (2012) 55 Cal.4th 393, 411.) It has" 'maximum flexibility to craft suitable orders aimed at rehabilitating the particular ward before it.'" (Ibid.) We review a commitment decision for abuse of discretion and factual findings for substantial evidence, indulging all reasonable inferences to support the juvenile court's decision. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396; In re Carlos J. (2018) 22 Cal.App.5th 1, 5; In re Khamphouy S. (1993) 12 Cal.App.4th 1130, 1135 [decision affirmed unless the court "acted beyond the scope of reason"].)
The purpose of juvenile law guides our examination of the record. (In re Calvin S. (2016) 5 Cal.App.5th 522, 528.) The law provides that removal may be necessary for a minor's "welfare or for the safety and protection of the public." (§ 202, subd. (a).) Delinquent minors "shall, in conformity with the interests of public safety and protection, receive care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances. This guidance may include punishment that is consistent with the rehabilitative objectives of this chapter." (Id., subd. (b); In re Eddie M. (2003) 31 Cal.4th 480, 507 [court may choose custodial confinement "to hold juveniles accountable for their behavior, and to protect the public"].)
Until recently, the Department of Juvenile Justice (DJJ) was "the state's most restrictive placement for its most severe juvenile offenders ...." (In re Miguel C. (2021) 69 Cal.App.5th 899, 902.) "The DJJ is also known as the California Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF). [Citation.] DJJ and DJF are used interchangeably in case law." (In re J.B. (2022) 75 Cal.App.5th 410, 413, fn. 1.) "The DJJ was previously known as the California Youth Authority (CYA)." (In re Miguel C., supra, 69 Cal.App.5th at p. 906, fn. 4.)
In 2020 the Legislature enacted "juvenile justice realignment" by passing Senate Bill No. 823 (2019-2020 Reg. Sess.). (Stats. 2020, ch. 337.) Implementing the Legislature's juvenile justice realignment program required the eventual closure of the DJJ and the devolution of its responsibilities onto California's counties. (§ 736.5, subd. (a).) The county- level equivalent of DJJ is a "Secure Track" commitment also known as an SYTF. (§ 875.)
In the context of Secure Track commitments, section 875, subdivision (a)(3) requires the juvenile court to make "a finding on the record that a less restrictive, alternative disposition for the ward is unsuitable. In determining this, the court shall consider all relevant and material evidence, including the recommendations of counsel, the probation department, and any other agency or individual designated by the court to advise on the appropriate disposition of the case. The court shall additionally make its determination based on all of the following criteria: [¶] (A) The severity of the offense or offenses, including the ward's role in the offense, the ward's behavior, and harm done to victims. [¶] (B) The ward's previous delinquent history, including the adequacy and success of previous attempts by the juvenile court to rehabilitate the ward. [¶] (C) Whether the programming, treatment, and education offered and provided in a secure youth treatment facility is appropriate to meet the treatment and security needs of the ward.
[¶] (D) Whether the goals of rehabilitation and community safety can be met by assigning the ward to an alternative, less restrictive disposition that is available to the court. [¶] (E) The ward's age, developmental maturity, mental and emotional health, sexual orientation, gender identity and expression, and any disabilities or special needs affecting the safety or suitability of committing the ward to a term of confinement in a secure youth treatment facility." (§ 875, subd. (a)(3).)
Analysis
G.L argues that the juvenile court's finding that a less restrictive alternative disposition would be unsuitable is not supported by substantial evidence. We disagree.
G.L. argues that the first factor, the "severity of the offense or offenses, including the ward's role in the offense, the ward's behavior, and harm done to victims," "weighs in [his] favor," noting that he did not stab or beat the first victim, did not point the pistol at the second, and generally "played a lesser role" compared to his co-offenders. But G.L.'s role in the offense is only one part of the first factor-as the court noted, the criminal conduct at issue was violent and serious, with "gang overtones," and both victims reported significant physical and emotional harm as a result. Furthermore, although G.L. played a lesser role and was what the report called "a classic follower," it was partly his inability to resist the influence of his gang-associated peers that made a less restrictive placement inappropriate. As the probation report noted, "when [G.L.] is exposed to negative influences, he either cannot or will not exercise the inner strength to rebuff such temptation. [¶] . . . [I]t seems obvious that the minor's inclination toward violent behavior is integrally connected to his gang affiliation." All this was substantial evidence in support of the court's conclusion that the first factor weighed in favor of finding a less restrictive placement inappropriate.
With respect to the other four factors, G.L. acknowledges that his prior performance on probation had been "less than ideal," and that he had success when placed in the more structured program provided by the CVA, but suggests that he was "successful" on electronic monitoring, which could have provided an alternative to placement in a SYTF. To the contrary, the probation report indicates that G.L. was placed on electronic monitoring several times, that he initially "failed to keep his EM monitor charged and repeatedly left his home without permission," and that he repeatedly reoffended shortly after the periods of electronic monitoring ended. This was substantial evidence in support of the conclusion that further electronic monitoring was not a suitable disposition.
Finally, G.L. argues that the juvenile court "seems to have skipped over" section 875, subdivision (a)(3)(D), providing that a court must consider "[w]hether the goals of rehabilitation and community safety can be met by assigning the ward to an alternative, less restrictive disposition that is available to the court." But "there is no rule that [a SYTF] placement cannot be ordered unless less restrictive placements have been attempted, and there is no requirement that the juvenile court expressly state on the record the reasons for rejecting less restrictive placements. ([In re M.S. (2009) 174 Cal.App.4th 1241, 1250]; In re Teofilio A. (1989) 210 Cal.App.3d 571, 577 (Teofilio A.); see also In re Ricky H. (1981) 30 Cal.3d 176, 184 [although juvenile court failed to articulate reasons for California Youth Authority commitment, evidence in the record showed that 'the purposes of the Juvenile Court Law could not be accomplished by' a less restrictive placement].) Rather, 'if 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.' (Teofilio A., at p. 577.) On the other hand, 'there must be some evidence to support the judge's implied determination that he sub silentio considered and rejected reasonable alternative dispositions.' (Ibid.; accord In re Angela M., [supra,] 111 Cal.App.4th [at p.] 1396.)" (In re Nicole H. (2016) 244 Cal.App.4th 1150, 1159.) Such is clearly the case here, where repeated periods of electronic monitoring, and even the more structured program provided by the CVA, had failed to prevent G.L. from reoffending.
The Juvenile Court Did Not Err In Failing to Apply G.L.'s Custody Credits to His Baseline Term Under Ernesto L.
G.L. also argues that the court erred by refusing to apply his precommitment custody credits to his baseline term of confinement under In re Ernesto L., supra, 81 Cal.App.5th 31.
At the disposition hearing on September 27, 2022, the juvenile court set a baseline term of 18 months, a maximum confinement term of three years, six months, and found that G.L. had 407 days of credit. The court declined the request by G.L.'s counsel to apply the 407 credits to the baseline term:
"THE COURT: . . . If the Court was to apply pre-treatment credits of 407 days, he'd been very close to completing his sentence on the baseline term of 18 months. It is this Court's opinion that In [r]e Ernesto L. was specifically related to a commitment to the Department of Juvenile Justice and does not apply to a Secured Youth Treatment Program. I realize there are cases pending and we should have some direction soon, but it is this Court's belief that In [r]e Ernesto L. was specifically for a sentencing scheme to the Department of Juvenile Justice.
"So he has zero credits towards his baseline term at this point, but the overall record will reflect that he has 407 days credits."
In Ernesto L., our colleagues in Division One held that "when a minor is committed to [the Division of Juvenile Justice (DJJ)], section 731 requires the juvenile court to apply the minor's precommitment credits against the actual maximum custodial term the court imposes, not the theoretical maximum exposure term." (Ernesto L., supra, 81 Cal.App.5th at p. 41.) This holding was contrary to the Fourth Appellate District decision in In re A.R. (2018) 24 Cal.App.5th 1076. Ernesto L. recognized that the reach of its holding was limited because of statutory amendments providing for the closure of the DJJ on June 30, 2023, but our colleagues published the decision because of their disagreement with the holding of In re A.R. (Ernesto L., at p. 34, fn. 2; § 736.5, subds. (b)-(c), (e).)
G.L. argues because SYTF commitments have now replaced DJJ commitments, we should apply the reasoning of Ernesto L. and find that G.L.'s custody credits must be applied to the baseline term set under section 875, subdivision (b), because that is the "actual physical custodial term." As noted, however, Ernesto L. concerned a commitment to the DJJ under section 731, whereas here, G.L. was committed to a SYTF under section 875. And section 875 was amended, effective June 30, 2022, to specifically state that "[p]recommitment credits for time served must be applied against the maximum term of confinement as set pursuant to this subdivision." (§ 875, subd. (c)(1)(C), amended by Stats. 2022, ch. 58, § 41.) G.L. acknowledges this amendment to section 875, but argues that it does not prohibit the juvenile court from applying his custody credits to his baseline term. To the contrary, we think the statutory language is clear that custody credits should be applied to the "maximum term of confinement," and not to the baseline term. Given this statutory clarification, the juvenile court did not err in declining to apply G.L.'s custody credits to his baseline term of confinement.
DISPOSITION
The order is affirmed.
We concur: Stewart, P.J., Miller, J.