In re D.T.

Filed 2/15/08 In re D.T. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

This appeal comes to us following a finding by the juvenile court that defendant committed the offenses of assault with a deadly weapon by means of force likely to produce great bodily injury (Pen. Code,  245, subd. (a)(1)), and evading arrest (Veh. Code,  2800.2, subd. (a)), with associated enhancements for personal use of a deadly weapon, a car, in the commission of the two offenses (Pen. Code,  12022, subd. (b)(1)), as alleged in an amended petition filed pursuant to Welfare and Institutions Code section 602.[1] Following a contested dispositional hearing, the juvenile court ordered defendant removed from the custody of his parents and committed to a county facility, Camp Wilmont Sweeney, for a maximum term of confinement of nine years.

In this appeal defendant complains that the dispositional order of removal and placement at Camp Sweeney is not supported by evidence of his best interests. We conclude that substantial evidence supports the juvenile courts decision to remove defendant from his parents home, and affirm the judgment.

STATEMENT OF FACTS[2]

The offenses were committed just after 12:00 a.m. on November 24, 2006, when defendant and his three companions confronted the victim, Leonel Zavala, who was seated in his car, a Geo Metro, parked on a street in Tracy. Defendant drove a Nissan Sentra past the victim. His three companions, Darren, Luis and Mario, were passengers in the vehicle. Zavala stated that the Nissan turned around, and the four occupants all left the vehicle and converged upon his car. One of them asked Zavala what he claimed or where he was from. According to Zavala, he replied that he wasnt from anywhere. Darren and Mario claimed that Zavala said he was Norte, whereupon Darren challenged him to a fight. Zavala was fearful of an attack, so he sought to avoid the confrontation by quickly driving his car away.

Defendant and his three friends returned to the Nissan and pursued the Geo Metro, again with defendant driving. Zavala stated that during a chase throughout Tracy the Nissan rammed his vehicle several times, after which he called the police. Dispatch advised Zavala to drive toward the police department to await police contact. Two police officers in the area then noticed the Nissan and Geo Metro traveling at a high rate of speed. The Nissan swerved from one lane into another, ramming Zavalas vehicle. One of the officers then observed the Nissan ram the Geo Metro again, causing it to spin across the lanes of traffic and collide with a light pole. The air bag deployed and the Geo Metro burst into flames. After the collision, Zavala kicked open the drivers side door and ran from the car. He was not injured.

The police officers activated emergency equipment and attempted to stop the Nissan, but defendant failed to yield and fled at a speed of up to 60 miles per hour on residential streets. The Nissan was pulled over by defendant after it started smoking. Defendant and the other three occupants of the vehicle were arrested by the officers and transported to the Tracy Police Department.

Defendant and his passengers asserted that the Nissan accidentally bumped into Zavalas car, and it was not done intentionally. Defendant could not explain the reason he failed to stop when he saw the lights and sirens of the police vehicles, other than to say that he panicked and sped away. He pulled over when the others in the vehicle told him to stop.

In subsequent statements to probation officers defendant expressed remorse, but blamed his companions for urging him to pull over to approach Zavala, then chase him when he drove away. Defendant claimed that he neither got out of the car nor said anything to the victim. He acknowledged that gang-related remarks were made by his friends to the victim, but professed not to know why they approached the victim. Darren later confessed to a probation officer, contrary to defendants statements, that they confronted the victim to carjack the Geo Metro after they noticed the custom rims on the vehicle. Defendant maintained that he and his friends are not gang members, although his friends affiliate with Border Brothers gang members.

Defendant and his family suggested that his ill-advised association with friends who had affiliations with gang members in the past year resulted in a sharp decline in his school performance at the beginning of the school year. Previously, defendant attended school regularly and earned at least average grades. Defendant admitted that within the past year he began cutting classes and earning poor grades. Due to the influence of his family and girlfriend, however, defendant claimed that in November he began attending school regularly again, which improved his academic performance. Defendant vowed that if given the opportunity to return home he would stop hanging out with gang affiliated peers, transfer to a smaller charter school, attend classes regularly, and get a job to reimburse the victim.

The record shows that defendant has family support. He is the youngest child of a very large family of Cambodian immigrants; his mother is deceased. The family is supported primarily by AFDC and SSI benefits. Defendant was characterized by his father and older brother as respectful, responsible and well behaved at home. He has no history of prior offenses or aggressive behavior. He did not engage in any misconduct while detained in juvenile hall. The family believes that the offenses resulted from defendants association with negative peers. Defendants father, step-mother and older brother emphasized that they are willing to undertake efforts to cooperate with the probation department and more actively supervise defendant at home to keep him on track. They urged the probation department to return the minor to their home under the supervision of the Family Preservation Unit.

With some expressed reservations, the dispositional report recommended that defendant be declared a ward of the juvenile court under the supervision of the probation department, but released to the custody of his parents with electronic monitoring and standard probation conditions. After the dispositional hearing on February 28, 2007, the juvenile court commissioner found that remaining in the home of his parents was contrary to defendants welfare, and ordered him to be removed from the home, and committed to the care and custody of the probation department for placement in a suitable county facility. Camp Sweeney was approved for placement. This appeal followed the juvenile courts denial of defendants application for rehearing of the dispositional order.

DISCUSSION

The sole claim made in this appeal is that the dispositional order was an abuse of discretion and it must be reversed. Defendant contends that the juvenile court erred by considering only the seriousness of the offense in ordering his removal from his parents home and placement at Camp Sweeney. He argues the evidence fails to show that the placement at Camp Sweeney meets the objective of probable benefit to the minor, particularly where his best opportunity for rehabilitation and maintaining his family bonds was placement in his parents home under the Family Preservation Unit. Defendant further complains that no evidence about what services would be provided by Camp Sweeney was presented.

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 . . . .  [Citations.] (In re Schmidt (2006) 143 Cal.App.4th 694, 716; see also In re Antoine D. (2006) 137 Cal.App.4th 1314, 13211322; In re Charles G. (2004) 115 Cal.App.4th 608, 614615.) A fundamental premise of delinquency adjudication is that the court must focus on the dual concerns of the best interests of the minor and public protection. (In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684.) The current law, while retaining the best interest of the minor as a commitment consideration, has placed a greater emphasis on punishment as a tool of rehabilitation and a means of protecting the public safety. (In re Domanic B. (1994) 23 Cal.App.4th 366, 372; In re Asean D. (1993) 14 Cal.App.4th 467, 473; In re Michael D. (1987) 188 Cal.App.3d 1392, 1396.) Welfare and Institutions Code section 202 now recognizes  punishment as a rehabilitative tool  and emphasizes the protection and safety of the public. The provisions of section 202 also shift the emphasis of the Juvenile Court law  from a primarily less restrictive alternative approach oriented towards the benefit of the minor to the express protection and safety of the public . . . .  (In re Teofilio A. (1989) 210 Cal.App.3d 571, 576, quoting In re Michael D., supra, at p. 1396.)

To accomplish these purposes, the juvenile court has statutory authority to order delinquent wards to 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 [the juvenile court law] . . . . [Citation.] (In re Charles G., supra, 115 Cal.App.4th 608, 615.) The juvenile courts have broad discretion to choose probation and/or various forms of custodial confinement in order to hold juveniles accountable for their behavior, and to protect the public. (In re Eddie M. (2003) 31 Cal.4th 480, 507; see also In re Antoine D., supra, 137 Cal.App.4th 1314, 13211322.)

We review a commitment decision for abuse of discretion. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396; see also In re Pedro M. (2000) 81 Cal.App.4th 550, 555556; In re Asean D., supra, 14 Cal.App.4th 467, 473.) The juvenile courts determination of an appropriate dispositional order  will not be reversed absent a clear abuse of discretion.  (In re Carmen M. (2006) 141 Cal.App.4th 478, 486, citing In re Jose M. (1988) 206 Cal.App.3d 1098, 1104.)   We must 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.  [Citation.] (In re Robert H. (2002) 96 Cal.App.4th 1317, 1330.)

We commence our inquiry by observing that the nature and extreme gravity of the offenses thoroughly support the disposition. The gravity of the offense is by statute a proper consideration at disposition. (Welf. & Inst. Code, 725.5.) (In re Robert H., supra, 96 Cal.App.4th 1317, 1330.) Defendant and his friends instigated an aggressive, gang-related confrontation with the victim. Even if we accept defendants protestations that he was induced to commit the crimes through the influence of his companions, he was nevertheless the primary actor in a series of increasingly dangerous criminal events. He turned the Nissan around so the group could accost the victim over gang contacts, or effectuate a carjacking, or both. When the victim attempted to prevent any escalation of the conflict by leaving, rather than abandon the altercation defendant precipitated and prolonged an extremely hazardous high-speed vehicle chase through the streets of Tracy. Despite defendants denials, the record indicates that he intentionally and repeatedly rammed Zavalas car, on the last occasion with enough force to send the Geo Metro out of control, across lanes of traffic, directly into a light pole. The fact that the victim was not killed or seriously injured when his vehicle crashed and burned was an extremely fortunate outcome, but one that was not at all attributable to defendant. Then, when the police attempted to detain defendant, he still did not suspend his criminal conduct. Instead, he fled at a high speed through a residential neighborhood, further placing the public at serious risk. He was apparently stopped only by the malfunctioning of his car and the pleas of his companions. The confrontation with the victim also had some connection with criminal street gangs, as did defendant and his friends. The dispositional order was fully justified and necessary for the protection of the public. (See In re Travis W. (2003) 107 Cal.App.4th 368, 379.)[3]

Defendants challenge to the placement order is thus distilled to a complaint that the order fails to serve his best interests or offer the rehabilitative programs necessary to protect and benefit him. We disagree with defendants assertion that the court erred by considering only the nature of the crime in determining the appropriate disposition. The court considered not only the gravity of the offense, but also the other dispositional factors unique to the minor. (In re Robert H., supra, 96 Cal.App.4th 1317, 1330.) Defendant was not forthright and truthful with authorities, as the dispositional report noted. He insisted that he was only a follower, yet he was the driver of the vehicle and thus independently initiated the entire sequence of events. His claims that he accidentally bumped the victims car are inconsistent with the account of the victim and police officers that the Nissan intentionally rammed the Geo Metro multiple times. His assertion of ignorance of the reason for the initial confrontation with the victim conflicts with the admission of his friend that they targeted the victim to carjack the Geo Metro and steal the custom rims.

The juvenile court was entitled to find that defendant played an active, even primary role in the offenses, and inappropriately minimized his complicity in the offenses. The record persuades us that defendant did not recognize and properly accept responsibility for the extreme seriousness of his conduct.

Further, the affiliation of defendant and his friends with gang members, the apparent gang motivation for the offenses, and the acknowledgement that defendant associated with gang affiliated negative peers while living at home, support the inference that defendant may not be able to avoid negative influences if he remained in the custody of his parents, particularly where his family expressed ignorance of his gang involvement. While defendant has the support of his family, under the circumstances that may not be enough to serve the objective and benefit of his rehabilitation without placement out of the home. The court also observed that Camp Sweeney offered counseling and other programs defendant may not receive with another placement. Finally, the court was not required to follow the guarded recommendation in the report for home placement. (People v. Warner (1978) 20 Cal.3d 678, 683; People v. Downey (2000) 82 Cal.App.4th 899, 910.)

Upon our review of the entire record we conclude that the juvenile court did not abuse its discretion by removing defendant from the custody of his parents and ordering his commitment to the Camp Sweeney facility. (In re Robert H., supra, 96 Cal.App.4th 1317, 1330; In re James H. (1981) 121 Cal.App.3d 268, 273275.) Accordingly, the judgment is affirmed.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

[1] Two other charged counts of felony conspiracy (Pen. Code,  182, subd. (a)(1)), and misdemeanor driving without a valid license (Veh. Code,  12500, subd. (a)), were found not true, and dismissed.

[2] Our recitation of the facts is taken from the detention report. For the sake of confidentiality we will refer to the participants in the offenses by their first names.

[3] We realize that in the colloquy at the disposition hearing the juvenile court commissioner mistakenly articulated some of the facts, as the defense pointed out at the hearing on the application for rehearing: that defendant drove at 100-mile-an-hour speeds, whereas the report indicated 60 miles an hour; that defendant admitted he was trying to car-jack the thing, while defendants companion Darren made admission that the group contemplated a carjacking. However, these insignificant discrepancies were corrected for the commissioner by defense counsel at the hearing, and we have no doubt they did not have any impact upon either the assessment of the gravity of the offenses or the ultimate dispositional order.