In re Anthony T.
Filed 8/29/08 In re Anthony T. CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re ANTHONY T., a Person Coming Under the Juvenile Court Law. | |
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY T., Defendant and Appellant. | F054165 (Super. Ct. No. JW111984-01) O P I N I O N |
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Peter A. Warmerdam, Juvenile Court Referee.
Arthur Lee Bowie, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
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Minor appellant Anthony T. contends the juvenile court abused its discretion in placing him at the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ)[1]against the recommendation of his evaluating probation officers. Finding no abuse of discretion, we will affirm the commitment decision, but instruct the juvenile court to modify the DJJ commitment order to correct a clerical error regarding Anthonys maximum period of confinement.
BACKGROUND
In October 2006, the juvenile court declared 16-year-old Anthony a ward of the court and placed him at Camp Erwin Owen after he admitted unlawfully taking property from another and resisting a peace officer. (Pen. Code, 487, subd. (c), 148, subd. (a)(1).) The admission was based on a plea agreement arising out of two separate incidents. On September 13, 2006, Anthony punched a minor in the face and took his necklace, and on September 23, 2006, Anthony and three other youths one brandishing a handgun approached several victims in a parked car and demanded their property.
On September 21, 2007, while Anthony remained on probation, he and several fellow criminal street gang members knocked 18- and 15-year-old victims to the ground and demanded their wallets and iPod players. After the attack, the wallet of one of the victims was found in Anthonys possession.
Anthony admitted committing second degree robbery for the benefit of, at the direction of, or in association with a criminal street gang and the juvenile court dismissed additional counts for using a deadly weapon and attacking the second victim. (Pen. Code, 215.5, subd. (c), 186.22, subd. (b)(1).) The juvenile court continued Anthony a ward of the court and committed him to the DJJ, expressly declaring an 11-year maximum period of confinement.
DISCUSSION
I. DJJ Commitment
Anthony contends the juvenile court abused its discretion by committing him to the DJJ instead of a local boot camp facility. He argues the placement does not serve any of the purposes of the juvenile court law, that the court disregarded his progress and accomplishments over the past year, and that placing him at DJJ will only serve to exacerbate his very real problems, ultimately creating a far greater danger to society than he presently represents.
A juvenile courts commitment decision may be reversed on appeal only upon a showing the court abused its discretion. (In re Todd W. (1979) 96 Cal.App.3d 408, 416.) In reviewing whether the juvenile court abused its discretion, we indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them. (In re Lorenza M. (1989) 212 Cal.App.3d 49, 53.) The commitment must conform to the general purposes of the juvenile court law. (Welf. & Inst. Code, 202; In re Todd W., supra, 96 Cal.App.3d at p. 417.) As described in Welfare and Institutions Code section 202, those purposes include rehabilitation, treatment, guidance, punishment as a rehabilitative tool, and protection from the public. The disposition must further evidence probable benefit to the minor and that less restrictive alternatives would be ineffective or inappropriate. (In re Teofilio A. (1989) 210 Cal.App.3d 571, 576.) The juvenile court must also consider the minors age, the circumstances and gravity of the offense, and the minors history of delinquency. (Welf. & Inst. Code, 725.5.)
While the juvenile court law contemplates a progressively restrictive and punitive series of dispositions, there is no absolute rule that the court may not impose a particular commitment until less restrictive placements have actually been attempted. (In re Eddie M. (2003) 31 Cal.4th 480, 507; In re Asean D. (1993) 14 Cal.App.4th 467, 473; In re Tyrone O. (1989) 209 Cal.App.3d 145, 151.) [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.3dat p. 577.)
Applying these principles, we cannot conclude the juvenile court acted outside the scope of its discretion by placing Anthony at the DJJ. At the dispositional hearing, the prosecution asked the court to impose a DJJ commitment because of the nature of Anthonys offenses three separate robberies involving violence against others. The prosecution also noted that while Anthony was quick to enter his pleas, he refused to accept full responsibility for his actions by denying he took the victims wallet that was found in his possession. The probation officer who prepared Anthonys evaluation then explained that Anthonys supervising probation officer believed Anthony remained amenable to local rehabilitation at the Kern Crossroads facility based on his exemplary performance while on probation prior to committing the current offense.
Expressing disagreement with the probation recommendation, the juvenile court concluded, The only thing this man has done positively is obtain a job. Other than that, I can see no positive changes in his life. The juvenile court asked the probation officer what programs would be available to Anthony at DJJ, and the officer explained DJJ offered individual, group and gang counseling, educational and vocational training, and a re-entry program. Meanwhile, defense counsel offered Anthonys early admission as the only basis for imposing a less restrictive alternative.
Placing Anthony at the DJJ, the juvenile court reasoned:
The Court does recognize the young man entered an admission at an early stage of the proceedings. That is a factor in mitigation. As I indicated earlier, I am appalled at [the supervising probation officers] assessment of the situation and certainly intend to address that further in a different location. In the last year, this young man has involved himself in three separate robberies. Each of those robberies has involved the use of force or the threat of violence. During that year, he has spent some 100 days or some 90 days actually in custody. Since his release from custody, he has continued as an active gang member. He has had poor performance in school and, again, the one positive note, he has obtained employment. But i[n] weighing all of those factors, considering the needs of the community for safety, and considering the needs of this young man for rehabilitative services, I cannot say that there are suitable services available for him at the local level.
Anthonys claim the imposed DJJ commitment will only exacerbate his problems and ultimately create a far greater danger to society than he presently represents overlooks the rehabilitative, education, and vocational programs available at the DJJ.[2] Moreover, while Anthony might have received some benefit from a less restrictive placement at the Kern Crossroads facility, the juvenile court was also required to consider both public safety and punishment as a rehabilitative tool. Taking all these factors into consideration, the juvenile courts decision to place Anthony at the DJJ did not exceed the bounds of reason given Anthonys failure to reform under a less restrictive placement and his recent return to criminal street gang violence.
II. Maximum Period of Confinement
At Anthonys October 24, 2007, dispositional hearing, the juvenile court listed the maximum periods of confinement associated with each of Anthonys prior and current offenses. The court then stated, In considering the facts and circumstances of this offense, as well as the young mans prior offense, the efforts made to rehabilitate, the Court does set the maximum available confinement time as 11 years. Similarly, the juvenile courts minute order for the proceeding states, Pursuant to Welfare and Institutions Code section 731, the court sets the maximum confinement time at 11 years. However, Anthonys DJJ commitment order, Judicial Council form JV-732, erroneously lists a maximum period of confinement of 12 years. This is a clerical error in recording the judgment rendered as opposed to judicial error in rendering the judgment. (In re Candelario (1970) 3 Cal.3d 702, 705.) Courts may correct clerical errors at any time, and appellate courts (including this one) that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accordingly, we will instruct the juvenile court to issue a new commitment order reflecting an 11-year maximum period of confinement and forward an official copy to the appropriate authorities at the DJJ.
DISPOSITION
The matter is remanded to the juvenile court with directions to prepare and forward to the appropriate authorities a revised Judicial Council form JV-732 indicating Anthony was committed to the DJJ under a maximum period of confinement of 11 years. In all other respects, the judgment is affirmed.
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*Before Vartabedian, Acting P.J., Wiseman, J., and Dawson, J.
[1] The DJJ was formerly known as the California Youth Authority (CYA). (Gov. Code, 12838, 12838.5.)
[2] Anthony relies in part on a report prepared by the Center for Juvenile & Criminal Justice for California as evidence of the DJJs troubles. There is no indication, however, that the report was offered into evidence before the juvenile court and therefore it is not properly before this court. (In re Carpenter (1995) 9 Cal.4th 634, 646 [Appellate jurisdiction is limited to the four corners of the record on appeal]; In re Michael D. (1987) 188 Cal.App.3d 1392, 1395 [reviewing court examines the record presented at the disposition hearing].) Anthonys concern that the DJJs alleged shortcomings will prove detrimental to his rehabilitation is mere speculation; should his concerns materialize, however, he may petition the juvenile court to reconsider his placement. (Welf. & Inst. Code, 778, 779.)
