In re Eric M.

Filed 9/24/07 In re Eric M. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Timothy Kams, Judge.

Derek K. Kowata, 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, Carlos A. Martinez and Kelly E. Lebel, Deputy Attorneys General, for Plaintiff and Respondent.

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On June 1, 2006, appellant Eric M., a minor, admitted allegations of the following: he committed robbery (Pen. Code, 211); he did so in an inhabited dwelling while acting in concert with two other persons (Pen. Code, 213, subd. (a)(1)(A)); and in committing the offense he personally used a deadly and dangerous weapon (Pen. Code, 12022, subd. (b)(1)). Subsequently, at the disposition hearing in September 2006, the court adjudged appellant a ward of the court; ordered him committed to the California Youth Authority (CYA);^[1]declared his maximum term of imprisonment (Welf. & Inst. Code,  726, subd. (c)) to be 10 years 8 months, based on the instant offense and enhancement and an offense adjudicated in a previous wardship proceeding; declared his maximum term of physical confinement (Welf. & Inst. Code, 731, subd. (b)) to be four years eight months; awarded 299 days of predisposition credits; and imposed a restitution fine (Welf. & Inst. Code, 730.6) of $100.

On appeal, appellant contends (1) the court abused its discretion in ordering appellant committed to the DCRJJ; (2) the disposition hearing minute order and DCRJJ commitment order incorrectly stated that the court imposed a $200 restitution fine; and (3) the court incorrectly calculated appellants predisposition credits. We will modify the award of credits, order the minute order and commitment order corrected and otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Instant Offense^[2]

On November 16, 2005, at 12:20 a.m., deputies responding to a report of a home invasion, made contact with the victim, who related the following: Upon hearing his dog barking, the victim awoke and went to his living room, where he encountered one person with a shotgun (subject 1) and another person (subject 2) with a hand gun and a knife with a four-inch blade. Subject 1 threatened to kill the victim, demanded money and struck the victim in the chest with the barrel of the shotgun, knocking him to the floor. Subject 2 look[ed] around the home. At some point thereafter, the subjects took a purse, $20 and a cell phone, and left. They were in the victims house approximately five minutes.

Based on records indicating the telephone numbers called on the cell phone after it was stolen, deputies formed the suspicion that appellant was involved in the robbery. Deputies made contact with appellant, and appellant admitted he participated in this crime. He stated he entered the victims home along with one of the other suspects, while another suspect waited outside.

Appellant was 15 years old at the time of the instant offense.

Previous Wardship Proceeding

During the early morning hours of January 22, 2005, a police officer, investigating a report of three persons walking around in an area in which there had been numerous break-ins, made contact with appellant. Appellant was carrying a six-inch long steak knife concealed in his pants pocket.

Based on the foregoing, a wardship petition was filed alleging appellant committed a violation of Penal Code section 12020, subdivision (a)(4) (carrying a concealed dirk or dagger). Appellant admitted the allegation, and in April 2005, the court placed appellant in the deferred entry of judgment (DEJ) program, which included 30 days on the electronic monitoring program. The report of the probation officer prepared in April 2005 in connection with that proceeding indicates the following: appellant admitted he was a member of a criminal street gang; he had several documented out-of-range violations on the Electronic Monitoring Program; his last school report card indicated he received six F grades during the first semester of the 2004/2005 school year; he was suspended from school twice during the school year; prior to being dropped from his high school, he had 21 unexcused absences ; and appellants mother removed appellant from his high school in March 2005 because appellant no longer wanted to attend.

On November 21, 2005, the court revoked appellants participation in the DEJ program.

Additional Background^[3]

According to a school progress report dated October 10, 2005, appellant received grades of F in five classes and a grade of I in one; he had accrued 26 unexcused absences; and he had received four disciplinary referrals.

Appellant denied any gang activity.

A DCRJJ intake officer stated that at the DCRJJ appellant would receive [i]ndividual counseling, anger management counseling, a victim and gang awareness class and a high school education program.

Appellant was not accepted in the Elkhorn Correctoinal Facility Boot Camp program because of the use of weapons during this crime.

Psychological Evidence

The court, at the time it placed appellant in the DEJ program, ordered appellant to participate in the Teilman Day Reporting Center program. Aimie Kohl, MSW, UMHC, a clinician with that program, submitted to the court a report in which she stated the following. Appellant was seen for a mental health assessment and individual therapy sessions. He has a history of victimization/trauma that had a significant impact on multiple stages of [his] development; tends to isolate; and, during therapy sessions, appears to be in another world. He has low comprehension and low verbal abilities, and his emotional problems may be impeding [his] ability to function [in] school . . . .

Psychologist Treon Hinmon, Psy.D., performed a psychological evaluation of appellant and submitted to the court a Violence Risk Evaluation report, dated August 23, 2006, in which he stated the following. Appellant reported that when he was in middle school, he learned that when he was 18 months old he had been sexually abused by his father. Appellant exhibits moderate risk factors for future delinquency. His profile suggests a potential for general re-offending more so than a specific violence risk. He exhibits some character pathology, and he admitted to periodically using marijuana. Appellant is in need of intensive intervention to develop good judgment and impulse control. [He] will require an environment with close supervision, clear expectations, and firm behavioral interventions . . . .

Dr. Hinmon recommended that the Court consider placement in a supervised environment, such as a diversion program or residential treatment program, and that appellant participate in mental health services including therapy to address his sexual victimization and a substance abuse treatment program to address his marijuana usage.

Disposition Hearing

In ordering appellant committed to the DCRJJ, the court stated the following: The court in making a commitment to the [DCRJJ] is trying to accomplish several things: One, it is the hope that the Minor will continue to receive educational support and gang intervention, which he certainly needs. He is currently denying gang involvement. However, not too long ago [he] admitted to being an active gang member. He can receive gang intervention services, victim impact services, hopefully vocational training so that if he chooses, he can use that training to provide for his family once he is released. The Court is also trying to afford a measure of protection to the community because in the Courts view the Minor does pose a risk to the community in light of his participation in what is characterized by this Court as a truly aggravated and horrendous crime.

DISCUSSION

Commitment to the DCRJJ

Appellant contends the court abused its discretion in ordering DCRJJ commitment. This contention is without merit.

To support a CYA commitment, it is required that there be evidence in the record demonstrating probable benefit to the minor, and evidence supporting a determination that less restrictive alternatives are ineffective or inappropriate. (In re Teofilio A. (1989) 210 Cal.App.3d 571, 576; accord, In re Pedro M. (2000) 81 Cal.App.4th 550, 556.) An appellate court will not lightly substitute its judgment for that of the juvenile court but rather must indulge all reasonable inferences in favor of the decision and affirm the decision if it is supported by substantial evidence. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396; In re Asean D.(1993) 14 Cal.App.4th 467, 473.)

In determining whether there was substantial evidence to support the commitment, we must examine the record presented at the disposition hearing in light of the purposes of the Juvenile Court Law. ( 200 et seq. . . .) (In re Lorenza M. (1989) 212 Cal.App.3d 49, 53.) In 1984, the Legislature amended the statement of purpose found in section 202 of the Welfare and Institutions Code. It now recognizes punishment as a rehabilitative tool and emphasizes the protection and safety of the public.^[[4]][Citation.] The significance of this change in emphasis is that when we assess the record in light of the purposes of the Juvenile Court Law [citation], we evaluate the exercise of discretion with punishment and public safety and protection in mind. (In re Lorenza M., supra, 212 Cal.App.3d. at pp. 57-58, fn. omitted; accord, In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684 [[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 Asean D., supra, 14 Cal.App.4th at p. 473 [the 1984 amendments to the juvenile court law reflected an increased emphasis on punishment as a tool of rehabilitation, and a concern for the safety of the public].) And 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 Teofilio A., supra, 210 Cal.App.3d at p. 577.)

Several factors support the conclusion that a disposition less restrictive than DCRJJ commitment would be ineffective or inappropriate because a placement less secure than DCRJJ would not be adequate to hold appellant accountable for his actions and/or provide for the safety and protection of the public. First, appellant has failed to reform despite being afforded the opportunity to participate in the DEJ program. Second, appellant committed an extremely serious offense, involving violence. (In re Samuel B. (1986) 184 Cal.App.3d 1100, 1104 [in determining disposition of juvenile offender, gravity of the offense is always a consideration with other factors], overruled on other grounds in People v. Hernandez (1988) 46 Cal.3d 194, 206, fn. 14.) Third, the record contains evidence appellant has been a member of a criminal street gang. (Cf. In re John H. (1978) 21 Cal.3d 18, 27 [CYA commitment upheld based in part on minors gang involvement]; In re Sergio R. (1991) 228 Cal.App.3d 588, 602 [same].)

Substantial evidence also supports the conclusion that commitment to the DCRJJ would be of probable benefit to appellant. The record indicates that appellant has used marijuana; been involved in a criminal street gang; had attendance, behavior and academic performance problems in school; has mental health problems; and committed a crime involving violence. The 2006 RPO contains evidence appellant will receive counseling and/or educational services at the DCRJJ addressing each of these problem areas. Moreover, as demonstrated above, the juvenile court law specifically acknowledges that punishment can aid in a minors rehabilitation by holding him or her accountable. The foregoing establishes that the court reasonably could conclude that DCRJJ commitment would benefit appellant.

Appellant argues that the court abused its discretion in ordering DCRJJ commitment rather than some less restrictive disposition, viz., placement in a county facility of the kind recommended by Dr. Hinmon, because the court based its disposition order solely on the seriousness of the offense, and ignored appellants need for, and the juveniles court laws focus on, rehabilitation. The record belies this claim. In addition to properly noting the seriousness of the instant offense, the court made explicit reference to the various programs and services provided at the DCRJJ that could address appellants myriad needs.

Appellants argument also ignores the principles that under the juvenile court law his interests include being held accountable for his actions, and that the court was bound to consider not only appellants interests but the interests of society. In In re Reynaldo R. (1978) 86 Cal.App.3d 250, 256, this court held that the juvenile court did not abuse its discretion in committing the minor to the CYA, stating, The minors record, although justifying a less restrictive disposition, was sufficient for a finding of probable benefit to the minor by a Youth Authority commitment. As our Supreme Court has stated, the circumstances in a particular case may well suggest the desirability of a [DCRJJ ] commitment despite the availability of . . . alternative dispositions . . . . (In re John H, supra, 21 Cal.3d at p. 27.) Such circumstances exist here. Regardless of whether appellant could receive appropriate services in some less restrictive placement, here, as demonstrated above, substantial evidence supports the conclusions that appellant could benefit from DCRJJ programs and services, and that any less restrictive placement would not be sufficient to hold appellant accountable and/or protect the public. The court did not abuse its discretion in ordering appellant committed to the DCRJJ .

Restitution Fine

As appellant contends and respondent concedes, although the court imposed a $100 restitution fine, the disposition hearing minute order and the DCRJJ commitment order indicate a restitution fine of $200. As the parties agree, these orders should be amended to reflect the correct amount of the restitution fine. We will so order. (Cf. People v. Mitchell (2001) 26 Cal.4th 181, 185, 188 [appellate court has inherent power to direct trial court to correct clerical errors in abstract of judgment].)

Predisposition Credits

[A] minor is entitled to credit against his or her maximum term of confinement for the time spent in custody before the disposition hearing, and when a juvenile court elects to aggregate a minors period of physical confinement on multiple petitions . . . , the court must also aggregate the predisposition custody credits attributable to those multiple petitions. (In re Emilio (2004) 116 Cal.App.4th 1058, 1067.)

The 2006 RPO indicates, and the parties agree, that appellant is entitled to predisposition credits for the following periods of confinement: January 22, 2005, through January 26, 2005, in the Fresno County Juvenile Hall; November 19, 2005, through June 6, 2006, in Kings County Juvenile Hall; and June 6, 2006, through September 14, 2006, in Fresno County Juvenile Hall. The parties also agree that the courts award of 299 days for these periods was incorrect. The parties part company, however, on the correct credits award. Appellant contends he is entitled to 305 days, while respondent puts the figure at 304.

We have done the calculation, and we conclude respondent is correct. It appears, as respondent notes, that appellant has counted one day, viz., June 6, 2006, twice. Appellant began that day in Kings County Juvenile Hall before being transferred later in the day to Fresno County Juvenile Hall.

We will order the judgment modified accordingly.

DISPOSITION

The judgment is modified to provide that appellant is awarded 304 days of presentence credits. The court is directed to prepare an amended disposition hearing minute order and an amended DCRJJ commitment order, each document to reflect an award of 304 days of predisposition credits and the imposition of a restitution fine in the amount of $100. The court is further directed to forward a certified copy of the amended DCRJJ commitment order to the DCRJJ. In all other respects the judgment is affirmed.

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^* Before Harris, Acting P.J., Wiseman, J. and Cornell, J.

^[1]Effective July 1, 2005, the CYA was renamed the Department of Corrections and Rehabilitation, Juvenile Justice (DCRJJ). (Gov. Code, 12838, subd. (a).)

^[2]The facts of the instant offense are taken from the report of the probation officer (2006 RPO), filed June 26, 2006,which is in turn based on a Kings County Sheriffs Department report.

^[3]Information in this section is taken from the 2006 RPO.

^[4]Welfare and Institutions Code section 202, subdivision (b) provides in relevant part: Minors under the jurisdiction of the juvenile court as a consequence of delinquent conduct 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.