IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR A126254

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1 Filed 7/7/10 In re Louis R. CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR In re LOUIS R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. LOUIS R., Defendant and Appellant. A (Alameda County Super. Ct. No ) Pursuant to a negotiated disposition, the minor Louis R. entered admissions to one count of robbery while armed with a firearm (Pen. Code 211, 12022, subd. (a)(1)) and one count of assault by force likely to produce great bodily injury while armed with a deadly weapon (Pen. Code 245, subd. (a)(1), 12022, subd. (b)(1)) and was committed to the Division of Juvenile Justice (DJJ) for a maximum term of six years, four months. On appeal he contends that the juvenile court abused its discretion in committing him to DJJ, failed to exercise its discretion in setting his term of commitment, erred in imposing conduct conditions upon him pending his transfer to DJJ, and erred in its calculation of his credits (conceded by respondent). We agree that the court failed to exercise its discretion is setting his maximum term of commitment and in the calculation of his credits, but otherwise affirm the judgment. 1

2 I. BACKGROUND The minor was charged in a subsequent petition (Welf. and Inst. Code 602) with six counts: robbery (count one, Pen. Code 211) while armed with a firearm (Pen. Code 12022, subd. (a)(1)); carjacking (count two, Pen. Code 215) while armed with a firearm (Pen. Code 12022, subd. (a)(1)); receiving stolen property (count three, Pen. Code 496); evading a police officer (count four, Veh. Code ); robbery (count five, Pen. Code 211) with an enhancement for use of a deadly weapon (Pen. Code 12022, subd. (b)(1)); and assault by force likely to produce great bodily injury (count six, Pen. Code 245, subd. (a)(1)) with an enhancement for use of a deadly weapon (Pen. Code 12022, subd. (b)(1)). An amended petition was filed later, adding a third robbery (count seven, Pen. Code 211) and an attempted carjacking (count eight, Pen. Code 215/664); each count contained an enhancement for use of a firearm (Pen. Code , subd. (b)). The allegations in the subsequent petition arose from several incidents that occurred in August of On August 3, four young men approached Jesus Castillo s vehicle. One pointed a shotgun at him and ordered Castillo out of the car. Castillo complied and yelled for help. The individual with the shotgun ran away; two of the others got into Castillo s car and drove away. 2 The car was reported stolen and was observed by the police an hour later. The police attempted to stop the car by activating siren and emergency lights, but the vehicle accelerated away. After a chase during which the stolen car ran several stop signs (almost causing a collision), the car sped up and failed to make a turn. The vehicle hit a sidewalk and flipped over, colliding with the front of a house. 1 Since the minor s case was resolved through a negotiated disposition, no jurisdictional hearing was held. The facts of the underlying offenses are therefore discerned from various reports in the clerk s transcript. 2 The fourth individual stood by Ernesto Alfredo, an ice cream vendor, apparently to distract the vendor and others. That individual also attempted to run away from the scene. He was surrounded by bystanders until the police arrived. 2

3 The minor was seated in the back seat of the vehicle. A replica AK-47 was found on the back seat floorboard. Witness accounts of the original incident differed one witness thought the minor drove the victim s car away, another thought he was the passenger, and some did not recognize the minor at all. Approximately 15 minutes prior to this incident, three teenage boys approached an ice cream vendor, Gregorio Huerta; one pointed a black pistol at him and demanded money. The other two boys punched Huerta in the back of the head and one took $40 from the victim s pocket. All of the boys stole ice cream and ran away. One witness identified the minor as the individual who addressed him at the scene, saying, You wanna get popped? The minor told the boy with the gun, Give me the gun. Give me the gun as the witness was watching the robbery. The minor admitted his involvement in both of these incidents. In the Huerta robbery, he admitted having a fake plastic BB gun that looked real; it broke when he hit Huerta on the head with it. The minor was also implicated in yet another robbery and attempted carjacking that occurred on August 2, In that incident, two young men approached the victim German Porcayo, and two other suspects stood some distance away. One of the young men took out a black handgun and pointed at Porcayo saying, If you move, I ll kill you. The minor apparently displayed a black handgun in his waistband, but did not take it out. Porcayo s cellular phone and car keys were taken. The minor also told the police about several other criminal incidents he was involved in, including residential robberies and a carjacking. In a negotiated disposition, the minor admitted the robbery in count one and the assault by means of force likely to produce great bodily Injury in count six. 3 After a contested dispositional hearing, the juvenile court committed the minor to DJJ for a maximum term of six years, four months. This timely appeal followed. 3 The minute order incorrectly states that count six was also dismissed, but the commitment order correctly indicates that the minor admitted this count. 3

4 II. DISCUSSION A. The Juvenile Court Did Not Abuse Its Discretion in Committing Minor to DJJ. The minor contends on appeal that his commitment to DJJ was an abuse of discretion as there was not substantial evidence that less restrictive alternatives were ineffective or inappropriate or that he would probably benefit from the commitment. We disagree. We review the commitment order in light of the purpose of the juvenile delinquency laws, which is twofold: (1) to serve the best interests of the delinquent ward by providing care, treatment, and guidance to rehabilitate the ward and enable him or her to be a law-abiding and productive member of his or her family and the community, and (2) to provide for the protection and safety of the public.... (In re Charles G. (2004) 115 Cal.App.4th 608, ) As one court recently explained, the statutory scheme contemplates a progressively more restrictive and punitive series of dispositions starting with home placement under supervision, and progressing to foster home placement, placement in a local treatment facility, and finally placement at the DJJ. [Citation.] 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. (In re M.S. (2009) 174 Cal.App.4th 1241, 1250.) In reviewing a commitment to DJJ, we indulge all reasonable inferences to support the juvenile court s order. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) 1. There was substantial evidence that less restrictive alternatives were inappropriate or ineffective. Contrary to the minor s contention on appeal, there was substantial evidence that less restrictive alternatives to a DJJ commitment would be inappropriate or ineffective. The juvenile court need not follow any particular order in its placement of a juvenile, i.e., 4

5 from least to most restrictive, and a court does not necessarily abuse its discretion by committing a minor to DJJ before other options have been tried. (John L. v. Superior Court (2004) 33 Cal.4th 158, , fn. 10, citing In re Eddie M. (2003) 31 Cal.4th 480, 507, fn. 16.) As the California Supreme Court noted in Eddie M., juvenile placements need not follow any particular order under section 602 and section 777, including the least to the most restrictive. [Citations.] Nor does the court necessarily abuse its discretion by ordering the most restrictive placement before other options have been tried. [Citations.] (In re Eddie M. at p. 507.) The court explains that the former governing statute previously stated an explicit preference for juvenile court treatment in [the minor s] own home. [Citations.] Given this priority, which has since been removed from the statutory scheme, it was understood that persons within the juvenile court s jurisdiction under section 602 would receive the most lenient disposition initially, and that more restrictive alternatives could be imposed only incrementally after less restrictive options had each been tried. In particular, CYA [now DJJ] was considered a last resort, available only after all else ha[d] failed. [Citation.] (Id., at p. 507, fn. 16.) However, the statutory scheme no longer requires that placement alternatives run from the least to the most restrictive, and that they be ratcheted up gradually based on the person s behavior at earlier levels. The juvenile court has broad discretion at disposition to implement the priorities in section 202 [setting forth priorities of juvenile law, including protection and safety of the public and each minor under the court s jurisdiction].... (John L., supra, 33 Cal.4th at p. 186, original italics.) Thus, under current law it is clear that a commitment to [DJJ] may be made in the first instance, without previous resort to less restrictive placements. [Citation.] (In re Asean D. (1993) 14 Cal.App.4th 467, 473.) This is especially so in light of the 1984 amendments to juvenile court law, which reflected an increased emphasis on punishment as a tool of rehabilitation, and a concern for the safety of the public. [Citation.] (Id.) Here the minor did have a prior history in the juvenile justice system. In 2008, he was caught in possession of a BB gun at school. A robbery had been reported at the 5

6 school earlier in the day and based upon surveillance videotape, it was believed that the minor was involved. The robbery involved the use of a gun and a knife (the victim reported being shown both), and another student who viewed the videotape identified the minor as the suspect. The minor claimed he lent the gun to some friends at school, who indicated they wanted to rob someone. The minor was charged with possession of a BB gun on school grounds (Pen. Code , subd.(a)), which he admitted. The charge was found to be a misdemeanor and the minor was adjudged a ward of the court, placed on probation, and ordered to reside with his father. In committing the minor to DJJ, the juvenile court specifically found that the minor had been tried on probation in the custody of your parent and failed to reform. [ ] Reasonable efforts were made to prevent or eliminate the need for a removal, and remaining in the home is contrary to your welfare. While the minor portrays his prior performance on probation as satisfactory, and the dispositional report characterized him as having adhered satisfactorily to his probation conditions, that characterization is not entirely correct. As the minor indicates, With the exception of two tests, [he] consistently tested clean of drugs although [he] admitted past marijuana use and alcohol consumption. Presumably he twice tested dirty. 4 While the minor states that he regularly attended school, he admits being excessively tardy, maintaining a GPA of only 2.167, and having a disciplinary record including a six-day suspension and three additional reprimands. Indeed, the dispositional report indicates the suspension was for an incident in which he injured another student by throwing a chair, and damaging school property. The minor s father describes the minor as being angry and he readily admitted his anger. However, most importantly it must be noted that the minor committed the offenses charged in the instant petition while on probation (indeed the disposition report indicates that he committed the instant offense just two weeks before he was to be dismissed from probation ). The minor s performance on probation was obviously less than stellar. 4 The dispositional report indicates he twice tested dirty for marijuana. 6

7 Under these circumstances, substantial evidence supported the juvenile court s finding that prior efforts to reform the minor had failed and the commitment to DJJ was appropriate. 2. There was substantial evidence that the minor would benefit from commitment to DJJ. The juvenile court found that the minor would benefit from the reformatory educational discipline and other programs provided by the Division of Juvenile Justice. Specifically, the anger management programs, the victim awareness program, and the violence programs that are provided there are important.... When contacted by probation, DJJ indicated that the minor was eligible for commitment and appropriate for the program, and that he would be placed in a high school program, and would participate in substance abuse counseling and victims of crime training. The juvenile court additionally found that the minor needed (for public safety) to be placed somewhere he could not leave. The benefit of DJJ s programs to wards with psychological, emotional, or educational needs has long been recognized. (See In re Tyrone O. (1989) 209 Cal.App.3d 145, ) Additionally, the secure environment of a DJJ commitment has also been recognized as a benefit to minors. (In re Jonathon T. (2008) 166 Cal.App.4th 474, 486.) Given the background of the minor and his failure to conform despite his past probationary period, along with his most recent violent crime spree involving his possession and use once again of a BB gun, substantial evidence 7

8 supports the trial court s conclusion that he would benefit from the programs and secure setting of DJJ. 5 DJJ. The juvenile court did not abuse its discretion in ordering the minor committed to B. The Juvenile Court Failed to Exercise its Discretion in Setting Minor s Maximum Term of Commitment. Welfare and Institutions Code section 731, former subdivision (b), now subdivision (c), requires that the juvenile court affirmatively exercise its discretion to set a minor s maximum term of commitment at a period less than is required for an adult. (In re Sean W. (2005) 127 Cal.App.4th 1177, ; In re Carlos E. (2005) 127 Cal.App.4th 1529, 1543.) At the dispositional hearing, the juvenile court in the present case stated the maximum term of confinement is six year, four months. The minute order indicated the same maximum term of commitment; however, the DJJ commitment order left blank the box which states: The court has considered the individual facts and circumstances of the case in determining the maximum period of confinement. Respondent argues that we should nevertheless infer that the court exercised its discretion to set the minor s maximum term of commitment period at less than the maximum required for adult offenders, because the minute order indicates that the maximum is being set pursuant to 731(b) W & I. Respondent contends that since section 731, subdivision (b) previously contained the requirement for the exercise of 5 We find the minor s reliance on documentation from the litigation in Farrell v. Tilton (Super. Ct. Alameda County, 2003, No. RG ) regarding DJJ, allegedly demonstrating inadequacies in DJJ s educational programs and security within the institutions, unpersuasive. The inadequacies referenced existed some time ago, and as the minor admits, Since then DJJ has made progress in certain areas including safety and welfare and education.... Remaining issues, according to the minor, include an inability to provide mandated amounts of instruction in subjects leading to high school graduation and an inability to resolve ongoing conditions of fear and violence... which impact[] a ward s willingness to attend school. However, even if these assertions are accepted as true and continue today, they do not rationally support the minor s conclusion that The lack of appropriate educational services at DJJ results in a failure to rehabilitate its wards. 8

9 discretion (amended to subsection (c) in 2007), this citation in the minute order supports the presumption that the court exercised its discretion. Respondent cites the Supreme Court s decision in In re Julian R. (2009) 47 Cal.4th 487, in support of the argument that we should presume the exercise of this discretion, even from a silent record. Respondent s argument fails. As the minor points out, the court in In re Julian R., supra, 47 Cal.4th 487 makes such a presumption from a silent record, but stated that It would have been better practice if the juvenile court had stated on the record that it had considered, based on the facts and circumstances of Julian s offenses, a confinement period less than the prison term for an adult.... In light of newly revised Judicial Council form JV-732 requiring the juvenile court to acknowledge its consideration of the crime s facts and circumstances... in the future a court s exercise of its discretion will be evident. (Id. at p. 499, fn. 4, italics omitted.) Indeed, the court in Julian R. then remanded the matter to the juvenile court to complete the Judicial Council form so as to acknowledge that it had exercised its discretion. (Id. at p. 500.) Given the juvenile court s failure to acknowledge its exercise of discretion in the Judicial Council form in the present case, we remand to the juvenile court in order that its exercise of discretion under Welfare and Institutions Code section 731, subdivision (c) be clarified and the Judicial Council Form be properly completed. C. Precommitment Conduct Conditions Were Not Properly Imposed. At the dispositional hearing, the juvenile court put in place several conduct conditions, including a prohibition against the minor having contact with coparticipants and victims, drug and search conditions, prohibitions against association with drug dealers or possessors, and requirements that the minor and his parents participate in counseling. The minor challenges the conduct conditions on the ground that the juvenile court lost supervision over the minor with its commitment of him to DJJ. Respondent concedes that once a minor is received by the DJJ his direct supervision passes from the court to the DJJ (italics in original) under In re Allen N. (2000) 84 Cal.App.4th 513, Respondent argues, however, that until the minor is transferred to DJJ, the 9

10 juvenile court retains the power to supervise minors in local custody, and asks this court to interpret the juvenile court s order to apply only until such transfer, as conditions of custody rather than the type of probationary terms prohibited in Allen N. The orders objected to by minor go beyond mere custody conditions while the minor is in local custody and before his transfer to DJJ. At the dispositional hearing, the juvenile court ordered the minor not to associate with the coparticipants, continued drug and search conditions previously ordered, and ordered the minor not to have contact with the victims. The minute order from that hearing sets forth the following terms and conditions: [ ] Submit person and any vehicle, room or property under your control to search by Probation Officer or peace office [sic] with or without a search warrant at any time of day or night. [ ] Submit to urinalysis or other test for use of narcotics or other controlled substances as directed by the Probation Officer. [ ] Do not under any circumstances, associate with anyone you know to use, deal or possess illegal drugs. [ ] Parent(s) and minor are to cooperate with the Probation Officer in any program of guidance, counseling or therapy[.] Despite respondent s attempt to characterize these terms as something different, they appear suspiciously similar to standard terms of probation, such as those stricken in Allen N. The conditions found to be improper in Allen N. were nonassociation orders (including with known gang members), mandated participation in anger-management counseling, and a prohibition against wearing or displaying gang-related clothing, etcetera. (In re Allen N., supra, 84 Cal.App.4th at pp ) Nothing in the juvenile court s verbal pronouncement of these conditions, nor in the minute order documenting them, limited their application to that period when the minor remained in local custody, pending his transfer to DJJ. We therefore order the juvenile court to strike its order imposing these conduct conditions. D. Commitment Order Must be Amended to Reflect Credit for Time Served. The minor contends, and respondent concedes, that he is entitled to 66 days credit for time served between his initial incarceration and his delivery to DJJ. We accept the concession and order the juvenile court to prepare and file an amended minute order and 10

11 commitment to DJJ reflecting this precommitment credit. (In re Emilio C. (2004) 116 Cal.App.4th 1058, 1067 [ It is the juvenile court s duty to calculate the number of days earned, and the court may not delegate this duty ].) II. DISPOSITION The minor s commitment to DJJ is affirmed. The matter is remanded to the juvenile court for its exercise of discretion to set the minor s maximum term of commitment in accordance with the facts and circumstances of this case. The juvenile court is ordered to complete the appropriate Judicial Council form reflecting the exercise of this discretion, to strike the conduct conditions imposed at the dispositional hearing, and to complete and file an amended minute order and commitment order reflecting that the minor is to receive credit for 66 days served prior to his delivery to DJJ. The amended commitment order shall be transmitted to DJJ. Sepulveda, J. We concur: Ruvolo, P. J. Rivera, J. 11