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>In re
Gabriel M.

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Filed 3/8/13 In re Gabriel M. CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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 GABRIEL M., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. GABRIEL M., Defendant and Appellant.	F065599 (Super. Ct. No. MJL017689) >OPINION

THE COURThref="#_ftn1"
name="_ftnref1" title="">^*

APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Madera
County. Thomas L. Bender, Judge.

Arthur L.
Bowie, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond
L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Appellant, Gabriel M., a minor, admitted an allegation
set forth in a juvenile wardship petition (Welf. & Inst. Code, § 602) that
he committed an assault by means of force likely to produce great bodily href="http://www.sandiegohealthdirectory.com/">injury, in violation of
former Penal Code section 245, subdivision (a)(1).href="#_ftn2" name="_ftnref2" title="">^[1] At the disposition hearing, the court
adjudged appellant a ward of the court, declared the instant offense to be a
misdemeanor and placed appellant on probation with various terms and
conditions, including that he serve 30 days in juvenile hall.

On appeal,
appellant’s sole contention is that the court erred in imposing the juvenile
hall condition of probation. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Factual Backgroundhref="#_ftn3"
name="_ftnref3" title="">^[2]

A Madera
Police Department report indicated the following: On December 5, 2011, the victim and his
sister were walking home from school when appellant approached and told the
victim he wanted to fight him. The
victim said he did not want to fight, and he and his sister continued walking. At that point, appellant reached around the
victim’s sister and struck the victim in the face. X-rays revealed that the victim’s nose was
broken in two places.

The
probation officer asked appellant “how he felt about the incident.” Appellant responded, “‘I don’t know how I
feel’ as he shrugged his shoulders and smirked.” Appellant “expressed no remorse for his
actions, nor did he appear to accept responsibility for his behavior ....”

Procedural Background

The
wardship petition in the instant case was filed May 7, 2012.href="#_ftn4" name="_ftnref4" title="">^[3] On May 24, at the detention hearing,
appellant’s mother, in response to the court’s question as to how appellant was
“doing at home,” stated appellant was “doing good”; he had been accepted into
Grizzly Youth Academy (GYA), a military boarding school in San Luis Obispo; and
he would begin the six-month residential program there on July 14. A few moments later, the court, speaking to
appellant, noted, “So you’re going to Grizzly Academy in July.”

According to the RPO, GYA is
“structured as a ‘military boarding school’ to promote an academic environment
that helps develop leadership, cooperation, and academic skills, while
improving self esteem, pride, and confidence.”
GYA is “run by the California National Guard” and is located at Camp San
Luis Obispo at the National Guard Training Base.

On June 7, at the trial setting
hearing, the court asked appellant if he was “still on track to go to the
Grizzly Academy.” Appellant answered,
“Yes.”

On June 11, at the proceeding in
which appellant entered his admission, the prosecutor mentioned at the outset
that appellant had been “accepted to the Grizzly Academy.” The court questioned whether “Grizzly [is]
going to take [appellant]” if appellant admitted the misdemeanor allegation,
and appellant responded, “They already accepted me.” The court advised appellant that if he
entered his admission, a disposition hearing would be conducted at some point
in the future, at which time the court could impose any of a number of possible
dispositions, including “boot camp program, time in the hall, group home
....” Shortly thereafter, appellant
entered his admission.

After accepting appellant’s
admission, the court stated, “I believe the understanding also, Gabriel, is
that you’ll be allowed to go to the Grizzly Academy.... If [the probation department is] recommending
something different than that, I’ll allow [you to] withdraw your
admission.” The court set the
disposition hearing for June 28.

On June 28, the court continued the
hearing to July 30. The court rejected
the defense request for an earlier date, after defense counsel told the court
appellant would be “attending Grizzly Academy, which is a several week program
in the San Luis Obispo area starting July 14th.”

On July 30, the court continued the
disposition hearing again. The court stated, “I ... need an update in
the [RPO] regarding this Grizzly Academy, what that actually entails.”

The RPO was filed August 1. In it, the probation officer reported the
following: GYA “indicated they were not
aware that [appellant] was currently pending [c]ourt proceedings,” and that it
is “against [GYA’s] policy to accept a minor/cadet while pending proceedings;
nonetheless, they indicated due to [appellant] having already begun the process[,]
they will allow [appellant] to continue in the program. They reported [appellant] is doing well in
the program ... and tentatively expect [him] to graduate the residential phase
of the program on December 15 ....”

The court continued the disposition
hearing at least one other time while appellant continued to attend GYA. The disposition hearing was finally held on
August 16, after the court agreed that appellant need not be present.

On August 16, the probation officer
filed a “Recommended Findings and Orders,” recommending that appellant be
placed on probation and that he serve 100 hours of community service. (Unnecessary capitalization omitted.) The officer did not recommend that appellant
serve any time in custody. At the outset
of the August 16 hearing, the court stated:
“... I’ve read the report. I
think in a way the recommendation is somewhat lenient. I’m inclined to follow it. I would most likely increase community
service hours but follow the recommendation.”
At that point, the court heard argument from defense counsel, and
thereafter, the court also heard from appellant’s mother and the victim’s
mother. The court then stated: “I’m -- you know, the more I think about it,
I think, actually, [appellant] does need to serve some time. I’m not happy that he went to the Grizzly
Academy prior to this case being completed and he shouldn’t have done
that. And I think you knew that, and so
he’s going to end up serving some time.
It’s going to be 30 days in the hall, and I’m going to have him do that
time when he gets out of the Grizzly Academy.”


At that point, defense counsel
stated that appellant’s mother “was very careful to check with both myself and
probation about sending [appellant to GYA],” at which point the following
colloquy took place:

“THE COURT: Did anyone check with me? Who’s in charge?

“[DEFENSE COUNSEL]: Well --

“THE COURT: Who’s in charge?

“[DEFENSE COUNSEL]: You are, your Honor.

“THE COURT: I am.
Okay. And no one asked me. End of discussion. He’s there.
I’m not happy he’s there. This
case wasn’t finished. We hadn’t even
gone to dispo yet. And now he’s over
there and everyone is using this as an excuse to be lenient on him. That upsets me, quite honestly. And if I was them, I’d be upset and I can
understand why they’re upset. Oh, he’s
over there, you can’t touch him now.
That’s bologna. And it was
unprovoked and that kid was hurt, and that shouldn’t have happened and your son
was a bully. And all these other kids
are bullies. That’s how I see it, and it
needs to stop. And if it doesn’t, he’s
going to be on probation. He violates
probation he’s going to have a problem with me.
I can guarantee you.”

Defense
counsel acknowledged that “nobody confirmed with [the court]” that appellant
would attend GYA before he began the program.
Counsel also stated she was not aware the court “did not want
[appellant] to attend the Grizzly Academy” and apologized to the court. Counsel further noted that she had learned
from “Chief Wise at the academy” that appellant was “doing very well” and was
“showing great promise.” There followed
the following colloquy:

“THE
COURT: Well, you know what, I’m glad
he’s doing well. [¶] Has he ever apologized for what he’s done?

“[APPELLANT’S
MOTHER]: He hasn’t personally apologized,
because I didn’t want contact with him.
I didn’t want to have him --

“THE
COURT: Did he ever write a letter saying
he was sorry?

“[APPELLANT’S
MOTHER]: No, he hasn’t, your Honor. [¶] … [¶]

“THE
COURT: … that tells me a lot.”

DISCUSSION

Appellant
contends the court abused its discretion in imposing the juvenile hall
probation condition because, he asserts, his “history with the juvenile justice
system” was “brief”; the “criminal nature” of the instant offense was
“minimal”; he participated in GYA; the court “failed to seriously consider” the
RPO; and there was “no evidence ... that juvenile hall was equipped to provide
[appellant] with the necessary services to address his rehabilitation.” In addition, appellant challenges the “basis”
for the court’s imposition of the juvenile hall condition. He argues the court ordered appellant
committed to juvenile hall out of “irritation” that appellant “failed to get
permission from the court to attend Grizzly Academy,” to “show the parties
‘Who’s in charge,’” and simply to punish appellant.

Governing Principles

“The juvenile court is empowered to
impose conditions of probation in juvenile cases and has broad discretion when
formulating such conditions.” (>In re Juan G. (2003) 112 Cal.App.4th 1,
6, fn. omitted.) Thus, the juvenile
court may impose “‘“any reasonable condition that is ‘fitting and proper to the
end that justice may be done and the reformation and rehabilitation of the ward
enhanced.’”’ [Citations.]” (In re
Sheena K. (2007) 40 Cal.4th 875, 889.)
“In deciding what probation conditions are appropriate, the court shall
consider not only the circumstances of the offense but also the minor’s entire
social history. Such conditions are
valid and enforceable unless they bear no reasonable relationship to the
underlying offense or prohibit conduct that is neither criminal in nature nor
related to future criminality. On
appeal, the court’s exercise of discretion will not be disturbed absent a
manifest abuse of discretion.” (>In re Juan G., at p. 7, fns. omitted.)

Welfare and
Institutions Code section 202 (section 202) 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.”
(Id., subd. (b).) Thus, “[u]nder section 202, juvenile
proceedings are primarily ‘rehabilitative’ [citation], and punishment in the
form of ‘retribution’ is disallowed [citation].” (In re
Eddie M. (2003) 31 Cal.4th 480, 507.)
But, “[w]ithin these bounds, the court has 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. ([§ 202,] subd. (e).)” (Ibid.) “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. [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.
Such was not the case before 1984.”
(In re Lorenza M. (1989) 212
Cal.App.3d 49, 57-58, fn. omitted.)



Analysis

Preliminarily, we note that the court’s expression of
displeasure at appellant’s participation in GYA at the August 17 disposition
hearing is surprising, given that the court expressed no such displeasure at
any of the many earlier proceedings at which the court was aware that appellant
was attending GYA. This factor, however,
does not establish that the court imposed the juvenile hall condition out of
retribution.

At the
outset of the August 17 hearing, the court expressed its view that the
disposition recommended by the probation officer was not sufficient to hold
appellant accountable for his actions.
Moreover, the court was entitled to credit the evidence that appellant
committed an unprovoked attack, resulting in significant injury, as well as the
probation officer’s observation that appellant exhibited no remorse. (See In re Asean D. (1993) 14 Cal.App.4th 467, 473
[minor’s commitment to California Youth Authority (CYA) upheld where his
“continuing refusal … to take responsibility for the crimes[] clearly signalled
that he constituted a serious danger to the public unless securely confined”]; >In re Michael D. (1987) 188 Cal.App.3d
1392, 1397 [minor’s “unrepentant and cavalier attitude” regarding his offense
supported CYA commitment].) On this
record, under the principles summarized above and given the purposes of the
juvenile court law, requiring that appellant serve 30 days in juvenile hall was
well within the court’s discretion.

DISPOSITION

The
judgment is affirmed.