In re Michael R.





















Filed 9/17/12 In re Michael R. CA1/2







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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



FIRST
APPELLATE DISTRICT



DIVISION
TWO




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In re MICHAEL R., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL R., Defendant and Appellant.	A133391 (San Francisco County Super. Ct. No. JW066743)

Michael
R., defendant below, appeals from the order of the court, following a
disposition hearing, that he be committed to the href="http://www.fearnotlaw.com/">Department of Juvenile Justice
(DJJ). Michael contends that the court
abused its discretion in ordering a DJJ commitment because less restrictive
alternatives were appropriate and there was no evidence that he would benefit
from the DJJ commitment. Michael also
contends that the order of commitment wrongly specified 12 years as the maximum
period of confinement and requests that order be corrected to specify 11 years
and 4 months as the maximum period of confinement.

We
affirm the court’s order committing Michael to the DJJ and amend the commitment
order to specify 11 years and 4 months as the maximum period of confinement.



BACKGROUND

Michael,
born in 1993, was arrested three times in 2005 and 2006 for grand theft,
possession of a weapon and vandalism, and second degree burglary. No petitions pursuant to Welfare and
Institutions Code section 602 followed these arrests.href="#_ftn1" name="_ftnref1" title="">>[1]


Michael
first came before the juvenile court when he was charged, on October 2, 2006, in a petition with
one count of second degree burglary
(Pen. Code, § 459) and one count of receiving stolen property (Pen. Code, §
496, subd. (a)). The probation officer’s
investigation of the offense stated that Michael, accompanied by two other
minors, had broken the window of a van and taken a briefcase from inside the
vehicle.

Before
the hearing on the October 2 petition, Michael was charged, on October 11, 2006, in a second
petition with one count of burglary in the second degree (Pen. Code,
§ 459), one count of tampering with
an automobile (Veh. Code, § 10852) and one count of vandalism (Pen. Code, §
594, subd. (b)). The probation officer’s
investigation of the offense indicated that Michael, accompanied by three other
minors, removed a backpack from a parked vehicle after one of his companions
broke a window.

A
third petition was filed on November
2, 2006, amended the same day to allege first degree robbery (Pen.
Code, § 212.5, subd. (a)) and attempted first degree robbery (Pen. Code, §
212.5, subd. (a)). The probation
officer’s investigation of the offense stated that while riding a bus, Michael
removed an iPod and headphones from the jacket pocket of a co-student of his
middle school and left the bus without returning the items. Michael had also tried to take the victim’s
cell phone, but backed away when the victim’s cousin prevented him.

The
three petitions were addressed at a hearing on December 7, 2006.
The first count of the October 2 petition was dismissed and the second
was amended to allege a misdemeanor violation of Penal Code section 496,
subdivision (a), which Michael admitted.
The October 11 petition was dismissed and both counts of the November 2
petition were sustained. The court
ordered release on home probation, with electronic monitoring and participation
in the Columbia Boys and Girls Club. This
court later reversed the trial court’s finding that sustained the attempted
robbery count from the November 2 petition.

A
fourth petition was filed on April 2,
2007, alleging counts of second degree robbery (Pen. Code,
§§ 211, 212, subd. (c)) and aggravated assault (Pen. Code, § 245,
subd. (a)(1)). According to the
probation officer’s investigation, Michael and a companion hit a boy at their
school, knocking him to the ground.
Michael then took the victim’s wallet.
At a hearing on April 9, the robbery count was dismissed and Michael
admitted the assault count. The court
reinstated home probation.

A
fifth petition was filed on April 17,
2007, alleging two counts of aggravated assault (Pen. Code,
§ 245, subd. (a)(1)). The probation
officer’s investigation report stated that Michael and a companion worked in
tandem to distract a victim and attack him with a stun gun. Michael encouraged his companion’s attacks
and recorded a video of the attack on his companion’s cell phone. At a hearing on April 25, the first count was
amended to allege criminal liability as an accessory after the fact (Pen. Code,
§ 32), which Michael admitted, and the second assault count was
dismissed. Probation was continued with
an out of home placement at the San Francisco Boys Shelter.

A
sixth petition was filed on August 23,
2007, alleging one count of aggravated assault (Pen. Code,
§ 245, subd. (a)(1)) and two counts of negligent discharge of a firearm
(Pen. Code, § 246.3). According to
the probation officer’s investigation, Michael shot a BB gun at the leg and ear
of a 10-year-old girl. Although the girl
was initially traumatized, she was not physically injured and Michael claimed
that no BBs remained in the gun when he shot at her. At a hearing on September 17, the first count
was amended to misdemeanor battery (Pen. Code, § 242), which Michael
admitted, and the remaining counts were dismissed. Probation with placement at the San Francisco
Boys Shelter was continued. Michael
returned to home probation on April
28, 2008.

A
seventh petition was filed on June 20,
2008, alleging one count of second degree burglary (Pen. Code,
§ 459) and one misdemeanor count of possession of burglary tools (Pen.
Code, § 466). The probation
officer’s investigation report stated that Michael was seen breaking the window
of a vehicle with a spark plug and rummaging in the glove compartment, without
taking anything. At a hearing on July
10, Michael admitted the burglary charge and the possession charge was
dismissed. The court continued home
probation. On July 31 and August 4,
bench warrants were issued because Michael had failed to appear at
hearings. Michael was taken into custody
and the warrants were recalled on August 6.
The court continued home probation again on August 20.

An
eighth petition was filed on March 18,
2009, alleging one count of aggravated assault (Pen. Code,
§ 245, subd. (a)(1)), one count of second degree burglary (Pen. Code,
§ 459) and one count of receiving stolen property (Pen. Code, § 496,
subd. (a)). The assault count originated
from an incident on February 20, when, according to the probation officer’s
investigation report, Michael confronted a girl with a group of other
youths. Michael slapped one of the
girl’s friends and others in the group attacked the girl. The remaining counts originated from an
incident on March 14, when a store manager accused Michael of shoplifting
jewelry with two companions. A gold
chain from the store was found in Michael’s possession. At a hearing on March 25, the assault count
was amended to misdemeanor battery (Pen. Code, § 242), which Michael
admitted. Michael also admitted
receiving stolen property and the burglary count was dismissed. Home probation was continued.

A
ninth petition was filed on October
13, 2009, alleging one count of second degree robbery (Pen. Code,
§§ 211, 212.5, subd. (c)) and one count of conspiracy to commit robbery (Pen.
Code, § 182, subd. (a)(1)). The
probation officer’s investigation report stated that a companion wielding a
handgun, which later proved to be an air pistol, confronted a woman, while she
was retrieving her bag from the trunk of her vehicle, and demanded her
wallet. As this occurred, Michael took
the woman’s shoulder bag from the trunk.
At a hearing on October 26, the robbery count was amended to grand theft
(Pen. Code, § 487, subd. (c)), which Michael admitted, and the conspiracy
count was dismissed. Probation at an out
of home placement was ordered on November 19.
On December 15, Michael was placed at Mary’s Help group home. Michael was returned to home probation on October 22, 2010.

A
tenth and final petition was filed on May
11, 2011, alleging three counts of second degree burglary (Pen.
Code, § 459), two counts of second degree robbery (Pen. Code, §§ 211,
212.5, subd. (c)) and one misdemeanor count of brandishing an imitation firearm
(Pen. Code, § 417.4). According to
the probation officer’s investigation report, Michael and a companion were
stopped by security agents outside a store after they were seen leaving with
items of clothing for which they had not paid.
A video recording showed that an agent grabbed Michael, who had
attempted to run, but Michael twisted away.
Michael pointed an object at the agent, which the agent thought was a
firearm, and the agent told Michael to keep the merchandise. When Michael was later arrested, he had a
silver replica revolver in his possession.
Michael’s companion was detained and a search of his backpack revealed
items taken from two other stores. At a
hearing on May 26, Michael admitted one count of second degree robbery,
acknowledging that it would qualify as a future strike, and the other five
counts were dismissed.

A
disposition hearing was held on September 14, 2011. Tony Hurley, Michael’s
probation officer, had written a disposition report that recommended a DJJ
commitment because it would provide Michael with services to address his
educational, mental health and vocational needs. An alternative disposition report,
recommending either placement in a transitional
housing program with MAC’s Children and Family Services (MAC’s) or an
extended detention at the Juvenile Justice
Center, had been submitted to the
court on Michael’s behalf. At the
hearing, Hurley said that the probation department had not considered MAC’s as
an option for Michael and that it would require further study before he could
say if MAC’s was an option he could recommend.
The court postponed disposition so that the probation department could
study the MAC’s option.

On
September 26, 2011, defense
counsel informed the court that Chief Probation Officer Sifferman had indicated
that no funding was available to place Michael at MAC’s because he was already
18 years old. Although defense counsel
could identify no other available funding source, counsel maintained that a DJJ
commitment would be inappropriate simply because there was no funding available
for a more appropriate placement.
Defense counsel also proposed that the court could place Michael for a
few additional months in Juvenile Hall.
As a third alternative, defense counsel also suggested a placement at
Log Cabin Ranch School until he turned 19.
Defense counsel maintained that Michael was not a threat to public
safety because he had never hurt anyone.

The
probation department continued to recommend a DJJ commitment and the
prosecution urged the court to accept that recommendation. The prosecution argued that the court should
consider Michael’s record as a whole, which included 25 contacts with police, 9
sustained petitions, and serious offenses.
The prosecution pointed out that although Michael had completed two out
of home placements, he had reoffended after each release.

The
court determined that even if funding were not an obstacle and even though
MAC’s had accepted Michael as a suitable candidate, MAC’s was a “poor option”
because “[i]t’s a place where people have successfully completed placement and
needed a little time before they move on to be on their own.” The court did not regard Michael as being “at
that level at all.”

The
court noted that since October 2006, Michael’s criminal activity had been
continuous and consistent and that “the only rehabilitation that is now
afforded to Michael is DJJ.” The court
noted that a DJJ commitment included “treatment, substance abuse, mental
health, education, medical, dental, vocational work experience, activities,
case management, transition reentry, community planning, behavioral
management.” The court concluded: “So I am sending him there with the hope that
this will be the one suitable program for Michael and that he will be, pursuant
to Welfare and Institutions Code [section] 202, kept from the community because
of safety issues and then there will also be opportunity for rehabilitation for
him.” The court continued Michael as a
ward and committed him to the DJJ for a period not to exceed 11 years, 4
months. The September 27, 2011 order of commitment, however,
states the maximum period of confinement as 12 years.

Michael
timely filed a notice of appeal.





DISCUSSION

I. Commitment
to the DJJ

Michael contends that the court
erred in committing him to the DJJ because there was no evidence that he would
benefit from a DJJ commitment and there was no evidence that other programs
were not appropriate or could not meet Michael’s needs.

A. Standard of Review

A
trial court’s decision to commit a minor to the DJJ will be reversed only if
the trial court abused its discretion. (>In re Jose T. (2010) 191 Cal.App.4th
1142, 1147.) A reviewing court must
indulge all reasonable inferences in favor of the decision and affirm the
decision if supported by substantial evidence.
(In re Robert H. (2002) 96
Cal.App.4th 1317, 1330.) For evidence to
be substantial, it “must be reasonable in nature, credible, and of solid
value.” (Joaquin v. City of Los Angeles (2012) 202 Cal.App.4th 1207,
1219.) In determining whether
substantial evidence exists, a reviewing court examines “the record presented
at the disposition hearing in light of the purposes of the Juvenile Court
Law.” (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395; see also Welf.
& Inst. Code, § 202.)

Since
1984, the Welfare and Institutions Code has required that courts commit minors
“in conformity with the interests of public safety and protection, [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.” (Welf. & Inst. Code,
§ 202, subd. (b); In re Michael D.,
supra, 188 Cal.App.3d at p.
1396.) “ ‘[T]he Legislature
intended to place greater emphasis on punishment for rehabilitative purposes
and on a restrictive commitment as a means of protecting the public safety.’ [Citation.]”
(In re Carl N. (2008) 160
Cal.App.4th 423, 433.) Nevertheless,
“the Legislature has not abandoned the traditional purpose of rehabilitation
for juvenile offenders.” (>In re Julian R. (2009) 47 Cal.4th 487,
496.) “[W]hile there has been a slight
shift in emphasis, rehabilitation continues to be an important objective of the
juvenile court law. To support a [DJJ] 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 Angela M. (2003)
111 Cal.App.4th 1392, 1396; see also Welf. & Inst. Code, § 734
[requiring probability of benefit to the minor before commitment to the Youth
Authority (now DJJ)].) In determining
the appropriate disposition for the minor, the trial court is required to
consider “(1) the age of the minor, (2) the circumstances and gravity of the
offense committed by the minor, and (3) the minor’s previous delinquent
history.” (Welf. & Inst. Code,
§ 725.5.)

B. Less Restrictive Alternatives

The
alternative disposition report, submitted on Michael’s behalf, recommended
either placement at MAC’s Children and Family Services or an extended detention
at the Juvenile Justice Center. At the second disposition hearing, defense
counsel also suggested a placement at Log Cabin Ranch School until Michael
turned 19. Michael contends that the
court’s finding that these less restrictive dispositions would be ineffective
or inappropriate was not supported by substantial evidence.

The
court carefully considered the MAC’s alternative before rejecting it as
inappropriate for Michael. At the first
disposition hearing, when it became apparent that the probation department had
not considered MAC’s as a placement for Michael, the hearing was continued so
that the probation department could do so.
Even though funding for MAC’s would not be available for Michael, the
court stated that it would have placed Michael there anyway, if it were an
appropriate placement. However, the
court concluded that MAC’s was “a place where people have successfully
completed placement and needed a little time before they move on to be on their
own. I don’t think Michael is at that
level at all.”

At
the time of the disposition hearing, Michael was over age 18 and would turn 19
in fewer than eight months. Because of
Michael’s age, he did not qualify for state funding for MAC’s and he could stay
at Log Cabin Ranch School only until the age of 19. Even if funding were not an issue, MAC’s
transitional housing program would also be available only until Michael turned
19. Sifferman, the chief probation
officer, had requested that the court not make long term commitments at the Juvenile
Justice Center. In contrast to the constraints in the length
of Michael’s participation in less restrictive alternatives, he could stay at
DJJ until he was 25.

Michael
had already had two out of home placements.
From October 2007 to April 2008, Michael was placed in the San Francisco
Shelter Program. From November 2009 to August 2010, Michael was placed at
Mary’s Help Residential Group Home.
Despite successfully completing the programs at these out of home
placements, Michael committed new offenses soon after returning to his
home. Despite over five years on
supervised probation, Michael had failed to reform, and the court could
reasonably conclude that rehabilitative efforts extending past Michael’s 19th
birthday would be required.

Michael
came to the disposition hearing with a five year history of arrests that had
resulted in 10 juvenile court petitions.
Michael’s actions demonstrated an ongoing lack of regard for the
property of others and involved shoplifting, multiple vehicle breakins, and
robbery. When almost 14, Michael and a
companion assaulted a schoolmate, knocking him to the ground. Shortly after that, Michael encouraged a
friend and made a video recording as the friend attacked a man with a stun
gun. At the age of 14, Michael
frightened a young neighbor girl, pretending to shoot her with a BB gun. When almost 16, Michael slapped a girl. At 16, Michael acted in concert with another who
attempted a robbery with an air pistol that appeared to be a handgun and at 17,
Michael pointed a replica gun that appeared to be a handgun at security
personnel who confronted him for shoplifting.
Michael admitted that if he had not been in custody pending the
disposition hearing, he would “probably be doing way worser stuff.”

The
state argues that Michael’s “increasingly violent crimes established that he
posed a danger to the public requiring secure housing.” Michael argues that he “has never resorted to
significant violence, nor placed anyone, other than perhaps himself, in danger
of serious injury.” While it is true
that Michael’s actions have not resulted in serious harm to others, his recent
use of a replica handgun and association with an accomplice wielding an air
pistol that appeared to be a handgun demonstrate Michael’s willingness to
engage in encounters that have a high potential for violent response. Hurley, in his disposition report, concluded
that Michael “continues displaying assaultive behavior which makes him a risk to
the community.” Michael’s own alternative
disposition report that was submitted to the court stated that “Officer Hurley
is correct in his assessment regarding Michael’s unacceptable aggressive
behavior . . . .”

We
conclude that substantial evidence supports an inference that Michael required
rehabilitative programs that would extend beyond his 19th birthday and that
Michael’s history of criminal activity required a placement in secure
facilities for his own safety and the safety of the community. The court carefully considered the less restrictive
alternatives to a DJJ placement that Michael proposed and did not abuse its
discretion in rejecting them as inappropriate for Michael because they would be
limited in time and/or insecure.

C. The Benefit to Michael of a DJJ Placement

In
recommending a DJJ placement for Michael, Hurley’s report to the court
stated: “If placed at DJJ, Mike will
receive a compressive [sic]
assessment to implement a treatment plan to fit his specific needs. He will be entitled to receive services to
address his educational, mental health and vocational needs.” The court stated: “I have some knowledge of the DJJ while
reading up on it. DJJ used to be not a
good facility to send minors to. But
beginning 2008, they were selected to implement a program service day and
implemented a program service day schedule which includes treatment, substance
abuse, mental health, education, medical, dental, vocational work experience,
activities, case management, transition reentry, community planning, behavioral
management. And they will give him an
academic career education program that will fit the needs of particular minors
and enhance their activity.”

Michael
contends that there is no evidence of probable benefit from a DJJ commitment
and that the statements by the court merely list “various generic types of
programs it believed exist at DJJ without correlating any of them to Michael’s
needs.” Even though the court
specifically cited an education program that would benefit Michael, he
criticizes the court for not “expressing or demonstrating any understanding of
exactly what that program is, what Michael needs, and how the two actually
relate.”

Michael’s
argument requires more of the court than does the law. “There is no requirement that the court find
exactly how a minor will benefit from being committed to DJJ. The court is only required to find if it is
probable a minor will benefit from being committed . . . .” (In re
Jonathan T. (2008) 166 Cal.App.4th 474, 486.) Here, one of Michael’s identified needs was
to finish his high school education. The
court was aware that an educational program would be available to Michael
following a DJJ commitment and found it probable that Michael would benefit
from that program. The court did not
abuse its discretion in reaching that determination.

In
his probation report, Hurley stated some of Michael’s needs, which are not
contested in Michael’s briefs: “It is
this officer’s belief that Michael needs to be placed in a highly structured
facility to help him gain responsibility as an individual and provide him with
identification of educational, vocational and psychological counseling.” In addition to the educational programs, the
court identified mental health programs and vocational work experience as
benefits that a DJJ commitment would provide.
These programs specifically address Michael’s needs that were enumerated
by Hurley and it was not an abuse of discretion by the court to conclude that
Michael would benefit from such programs.

Michael’s
age was a major factor at his disposition hearing because he would turn 19 in
less than eight months time. If Michael
were to reoffend, that offense would be dealt with in the adult court system,
where Michael’s best interest would not be a factor. Indeed, when Michael admitted his latest
offense, he acknowledged that it would qualify as a strike should he
reoffend. It was not unreasonable for
the court to conclude that it was in Michael’s interest to be placed in a
program that could provide rehabilitative services beyond his 19th birthday in
order to provide him the best chance not to reoffend.

We
conclude that the record presents ample evidence supporting the court’s
determination that Michael would benefit from a DJJ commitment. Because substantial evidence also supports
the court’s determination that less restrictive alternatives were not
appropriate, we affirm the order of the court committing Michael to the DJJ.

>II. >The Maximum Period of Confinement

At
the disposition hearing, the court stated that Michael’s maximum confinement
time was 11 years and 4 months. The
minute order from that hearing states the same period. However, the DJJ commitment order states 12
years as the maximum period of confinement.
The discrepancy appears to have resulted from the inclusion of a count
of attempted first degree robbery, which the juvenile court originally found
true, but which this court reversed.
Michael requests that this court amend the DJJ commitment order to
reflect the maximum confinement time as stated at the hearing. The state does not oppose this request.

“[A]
discrepancy between the judgment as orally pronounced and as entered in the
minutes is presumably the result of clerical error.” (People
v. Mesa (1975) 14 Cal.3d 466, 471, limited by a statute not applicable
here, as recognized by People v. Turner
(1998) 67 Cal.App.4th 1258, 1268.) This
court has the power to correct clerical errors and make the records reflect the
true facts. (People v. Mitchell (2001) 26 Cal.4th 181, 185; Pen. Code,
§ 1260.) We conclude that the DJJ
commitment order contains a clerical error and our disposition reflects the
required modifications.

>DISPOSITION

The
order committing Michael to the DJJ is modified as follows: (1) in item 6d, the first offense dated
“11/2/2006,” with an eight-month term, is stricken and (2) in item 8a, the
maximum period of confinement is modified from “12 YEARS” to “11 YEARS ANDname="_GoBack"> 4 MONTHS.” The order
is affirmed in all other respects.

_________________________

Lambden,
J.





We concur:





_________________________

Kline,
P.J.





_________________________

Richman,
J.