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In re T.S. CA5

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In re T.S. CA5
By
06/05/18

Filed 5/31/18 In re T.S. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re T.S., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

T.S.,

Defendant and Appellant.

F075273

(Super. Ct. No. 14CEJ600473-2V4)


ORDER MODIFYING OPINION AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the unpublished opinion filed herein on May 9, 2018, be modified as follows:
1. On page 2, the second sentence of the last complete paragraph shall be deleted and replaced with the following:
On March 11, 2015, appellant admitted a charge of assault with a firearm in exchange for the dismissal of a criminal threats charge (§ 422) and a personal use of a firearm enhancement (§ 12022.5, subd. (a)) that attached to each offense.
2. On page 8, the second sentence in the first complete paragraph is deleted and replaced with the following:
In doing so, he noted that there were trade programs at the DJJ and that appellant could receive an education, and probably a higher level of counseling, there.
There is no change in the judgment.

Appellant’s petition for rehearing is denied.


LEVY, A.P.J.
WE CONCUR:



DETJEN, J.



SMITH, J.


Filed 5/9/18 In re T.S. CA5 (unmodified opinion)



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re T.S., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

T.S.,

Defendant and Appellant.

F075273

(Super. Ct. No. 14CEJ600473-2V4)


OPINION

THE COURT*
APPEAL from an order of the Superior Court of Fresno County. Michael G. Idiart, Judge.
Linda K. Harvie, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
The court readjudged appellant T.S. a ward of the court (Welf. & Inst. Code, § 602), after the court sustained allegations in a wardship petition charging him with assault with a firearm (Pen. Code, § 245, subd. (a)(2)). Following several violations of probation, the court committed appellant to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ).
On appeal, appellant contends the court abused its discretion: (1) when it committed him to the DJJ; and (2) in calculating appellant’s maximum term of confinement (MTC). We affirm.
FACTS
Background
On July 22, 2014, appellant, who was then 12 years old, was adjudicated of second degree burglary and placed on probation for a year.
On January 29, 2015, while on probation, appellant, who was then 13 years old, approached store clerk Degol Mengesha outside of the MCL liquor store in Fresno, pointed a gun at him, and said, “Remember me? I can smoke you right now.”
On February 16, 2015, appellant was arrested and booked into the Juvenile Justice Campus (JJC). On March 11, 2015, appellant admitted charges of assault with a firearm and making criminal threats (§ 422), and a personal use of a firearm enhancement (§ 12022.5, subd. (a)), that attached to each offense, were dismissed. Additionally, the court found that appellant violated his probation in the earlier case.
Appellant’s probation report indicated he last attended school on October 16, 2014. It also noted that while in custody appellant had consistently behaved poorly by banging his door, disrespecting staff, cursing at peers, and failing to follow directives, the dress code, and pod rules.
On March 25, 2015, the court continued appellant on probation and committed him to the Pre-Adolescent Program (PRAP) at the JJC for 63 days. It also ordered appellant to participate in psychological and substance abuse testing, individual counseling, and an aggressive offender program.
On May 26, 2015, the court held a modification hearing. A probation report filed on that date indicated appellant behaved poorly at the PRAP by failing to follow staff instructions, cursing, destroying bedding, covering his window, banging on his door, acting defiantly, fighting, engaging in horseplay, and disrupting his pod. He was also returned to his pod from the Alice Worsley School at the JJC 17 times for misconduct that included gang-related tagging on school materials, being argumentative, acting defiantly, using inappropriate language, cursing, and failing to follow directions. During the hearing, the court found appellant’s mother was not able to care for him and ordered him into placement once he completed the PRAP.
On June 10, 2015, appellant was placed at Quality Group Homes. The following day, he absconded from the home.
On June 22, 2015, the probation department filed a supplemental petition (Welf. & Inst. Code, § 777), alleging appellant violated his probation by being out of contact with the probation department since June 11, 2015, and absconding from his placement. Additionally, the court issued a warrant for his arrest.
On June 30, 2015, appellant was arrested on the warrant and a misdemeanor charge of receiving stolen property (§ 496) that the district attorney opted to handle as a probation violation in lieu of filing a new charge. At a hearing on that date, appellant admitted violating his probation as alleged.
On July 15, 2015, the court continued appellant on probation and committed him to the JJC for 60 days.
On July 19, 2015, appellant was sent to his room for hitting another minor on the head. On August 12, 2015, he was disrespectful and defiant toward JJC staff. He also attempted to tag JJC property and after being sent to his room, appellant ripped up his sheets. On August 13, 2015, appellant was transferred to a different pod because he was not programing and he posed a threat to officer safety. On August 19, 2015, after being sent to his room for disobeying instructions, appellant kicked and banged his door, ripped up his T-shirt, and attempted to cover his window with toilet paper. The following day, due to his ongoing threats of violence against staff, appellant was held in a “yard check” position while his bedding was removed from his room because of appellant’s threats to make kites and to flood the room. On August 22, 2015, appellant threw his food under a door and refused to clean up the mess. On September 4, 2015, he was escorted to his room because he was defiant and disrespectful towards staff. On September 18, 2015, appellant was “banging” in his room, tore up his sheets, displayed gang signs, and caused a pod disruption with another minor. Additionally, after his return to custody at the JJC, on five occasions appellant was returned to his pod from the Alice Worsley School and he was suspended three times, including once for making inappropriate comments to a teacher.
On September 21, 2015, appellant was placed at the Promesa group home. On September 24, 2015, appellant disobeyed multiple instructions not to enter another minor’s room, he made sexual comments toward female staff, and he attempted to fight with group home staff. On September 26, 2015, appellant was involved in a fight with another minor. On October 2, 2015, when the group home vehicle in which appellant was riding stopped at a school, appellant exited the vehicle and did not return.
On October 6, 2015, the probation department filed a supplemental petition, alleging appellant violated his probation by being out of contact with the probation department since October 3, 2015, and failing to follow the directives of his placement by absconding.
On January 28, 2016, appellant was arrested on an outstanding warrant. He also punched a hole in the wall of a holding cell and was charged with felony vandalism (§ 594). On February 2, 2016, while in custody at the JJC, appellant was transferred to a different pod after he threatened a teacher and kicked a trashcan as he exited the classroom.
On February 5, 2016, appellant admitted violating his probation as alleged.
On February 7, 2016, all of appellant’s property was removed from his room after he banged on his door and threatened to cover his window. On February 8, 2016, appellant threatened another minor and he called a female staff member derogatory names. On February 9, 2016, appellant was disciplined for arguing with JJC staff. On February 10, 2016, he threatened to assault his teacher. On February 11, 2016, appellant attempted to cause gang tensions by taunting another minor and asking him where he was from.
On February 22, 2016, appellant was evaluated and prescribed a variety of medications for depression, angry outbursts, aggressive behavior, self-harming behavior, mood instability, and anxiety.
The probation report prepared for appellant’s disposition hearing stated that appellant continued to “display a horrible attitude in and out of custody and appear[ed] to have given up,” and that appellant had “engaged in several defiant and dangerous behaviors while in custody and appear[ed] to blatantly refuse to program.” The report also noted that several times appellant stated that he was not going back to the JJC, and if he did, he would “make it worth it.”
On March 3, 2016, the court continued appellant on probation and committed him to the JJC for 240 days.
A probation report filed on March 24, 2016, indicated that appellant failed to complete the individual counseling, “Youth and the Law” classes, and the aggressive offender program as ordered by the court. Additionally, appellant was receiving F’s in all his classes. Subsequent to returning to custody, appellant was returned to his pod on three occasions for using profanity, being disrespectful towards a teacher, and disruptive behavior.
On November 8, 2016, appellant was placed at the Hope for Youth group home. On November 11, 2016, appellant absconded from the home.
On November 17, 2016, appellant and another minor took several items from a store. Before exiting, both minors showed the items to the female clerk and called her a derogatory name. A short time later, the minors reentered the store and took several candy items. While exiting the store, the second minor grabbed a bottled drink and threw it at the clerk, striking her on the chin and causing a small cut. Appellant and the other minor both fled on bicycles but were subsequently arrested for robbery (§ 211) and conspiracy (§ 182).
On November 22, 2016, a supplemental petition was filed, alleging appellant violated his probation by being out of contact with the probation department since November 11, 2016, absconding from his group home placement, and failing to obey all laws.
On November 23, 2016, the probation department filed a report that noted that since being committed to the JJC on March 3, 2016, appellant was returned to his pod and demoted on several occasions for being verbally aggressive towards staff, having a poor attitude, ripping bedsheets, yelling in the pod, and fighting. It also noted that appellant displayed consistent defiant behavior towards JJC staff and had refused to attend school.
On December 5, 2016, appellant admitted violating his probation as alleged in the petition.
On December 12, 2016, the court continued appellant on probation and committed him to the JJC for 240 days.
On February 15, 2017, a supplemental petition was filed, alleging, in pertinent part, that appellant violated his probation by fighting with another minor on January 7, 2017, destroying a light fixture valued at $300 on January 20, 2017, and hitting another minor on February 12, 2017.
A subsequent probation report alleged that appellant also violated his probation by making inappropriate sexual comments to female staff on several occasions, and on February 3, 2017, by climbing a fence and then climbing on to the roof of a building. The report also noted that appellant stated he was frustrated and did not want to be at the JJC anymore, and that he did not care if he was sent to the DJJ so he would continue to “do what he wants.”
On February 16, 2017, appellant admitted violating his probation, as noted above.
Appellant’s disposition hearing was held on March 6, 2017. A probation report filed on that date, indicated that during a telephone conversation with an intake consultant, the reporting officer was informed that at the DJJ appellant would undergo an evaluation of his mental health and medical needs, an academic screening, and a psychosocial assessment. He would then be eligible to participate in victim awareness classes, an anger management program, aggression intervention training, a substance abuse program, and a school program.
During appellant’s disposition hearing, the prosecutor argued for a commitment to the DJJ. In doing so, he noted that there were trade programs at the DJJ and that appellant could receive an education and a higher level of counseling there.
Defense counsel argued that the court still had a local placement option in the New Horizons Program (NHP), which she believed would provide more intensive counseling than he had been receiving at JJC.
The probation officer responded that a commitment to the NHP would not be beneficial to appellant or other minors in the program because appellant would create problems for those minors due to his history of noncompliance.
The court, without objection, concluded that local placement options had been exhausted citing appellant’s comments to female staff, the damage to the light fixture in his room, his attempt to escape from the JJC, appellant’s two fights with minors and his failure to take advantage of his opportunities at JCC, despite having served several lengthy commitments there. The court then found that less restrictive alternatives would be inappropriate and that it was probable appellant would benefit from a commitment to the DJJ. It also “exercise[d] its discretion” and set appellant’s MTC, without objection, at four years four months by using an aggravated term of four years for appellant’s assault with a firearm offense (§ 245, subd. (a)(2)) and a four-month term for his misdemeanor burglary offense (§ 459), one third of the one-year term applicable to that offense (§ 461, subd. (b)).


DISCUSSION
The DJJ Commitment
A. Legal Principles
In making a placement determination, the juvenile court “shall consider, in addition to other relevant and material evidence, (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.) Appellate courts review a commitment decision by the juvenile court for an abuse of discretion. All reasonable inferences are indulged to support the juvenile court’s decision. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) Although a DJJ commitment is usually a placement of last resort, the juvenile court is not required to first exhaust all less restrictive alternatives. (In re Asean D. (1993) 14 Cal.App.4th 467, 473; In re Tyrone O. (1989) 209 Cal.App.3d 145, 151 (Tyrone O.).) A commitment to the DJJ is not an abuse of the juvenile court’s discretion “where the evidence demonstrates a probable benefit to the minor from the commitment and less restrictive alternatives would be ineffective or inappropriate.” (In re M.S. (2009) 174 Cal.App.4th 1241, 1250.)
B. The Probable Benefit to Appellant
Appellant was originally adjudged a ward of the court and placed on probation in July 2014, based on his admission of a misdemeanor second degree burglary offense. On February 16, 2015, appellant violated his probation by assaulting a store clerk with a firearm. Appellant subsequently violated his probation four times, for a variety of reasons, including absconding from three separate group home placements, committing new offenses, defiant and assaultive behavior at the JJC, making crude sexual comments to female staff and calling them a derogatory name, destroying property, and failing to obey the rules. Thus, appellant’s criminal behavior, his disrespectful and defiant behavior toward JJC staff, his inability to obey the court’s orders, and his inability to control his behavior in a secure setting made it likely he would benefit from the structure and discipline inherent in commitment to the DJJ.
Additionally, it is generally recognized that the DJJ has specialized institutions and rehabilitation programs to deal with a committed minor’s needs. (Tyrone O., supra, 209 Cal.App.3d at p. 153 [trial court properly found that [the DJJ], with specialized institutions and rehabilitative programs tailored to the delinquent’s sophistication and need for security, offered promise of probable rehabilitative benefit to minor].) Further, appellant’s dismal school performance made it likely he would benefit from the educational and vocational classes available at the DJJ and a commitment there would allow him to obtain the counseling and medication he needed to address his mental health issues.
Moreover, although juvenile proceedings are primarily rehabilitative in nature and punishment in the form of retribution is disallowed (In re Eddie M. (2003) 31 Cal.4th 480, 507), a DJJ commitment would also benefit appellant by holding him accountable for his misconduct and it was consistent with the purposes of the juvenile court law, which recognizes punishment as a tool of rehabilitation. (Welf. & Inst. Code, § 202.) It would also provide for the protection and safety of the public by preventing appellant from committing any offenses while he was in custody and by addressing the causes of appellant’s aggressive behavior.
Appellant contends the evidence is insufficient to sustain the court’s finding that he would probably benefit from a DJJ commitment because: (1) it was not warranted by the conduct underlying his last probation violation or his misconduct at the JJC; (2) he was initially sent to a group home because he could not be placed with his mother or a relative and at the time he could have been treated as a dependent of the court; (3) only one of appellant’s two adjudications was for a felony and his felonious conduct in that case was mitigated by his age, the assault victim’s desire not to pursue charges, and his family’s numerous referrals to CPS; and (4) there was insufficient evidence that at the DJJ, appellant would receive any of the treatment he needed. We disagree.
Appellant does not explain how the first three circumstances listed above are relevant to the court’s determination that he would probably benefit from a commitment to the DJJ. Thus, none of these circumstances undermine the court’s finding that appellant would probably benefit from a commitment there. Nevertheless, we note that appellant’s commitment to the DJJ was based on the seriousness of his assault with a firearm offense, his lengthy history of assaultive, defiant and disrespectful behavior, and his inability to obey the court’s orders even after being repeatedly sanctioned by commitments to the JJC.
Moreover, “[t]here is no requirement that the court find exactly how a minor will benefit from being committed to DJJ.” (In re Jonathan T. (2008) 166 Cal.App.4th 474, 486.) And as noted above, the court reasonably could find that appellant would benefit from, among other things, the vocational, educational, and counseling programs available to a minor committed to the DJJ. Accordingly, we reject appellant’s contention that the record does not contain substantial evidence that supports the court’s conclusion that appellant would probably benefit from a commitment to the DJJ.
C. Less Restrictive Alternatives Were Ineffective or Inappropriate
Appellant’s attempt to escape from the JJC and his history of running away from placements support a finding that a commitment to the JJC or to one of its programs was inappropriate because appellant was a flight risk. Further, the court could reasonably conclude from appellant’s continued criminal conduct and his continued recalcitrant behavior at the JJC, despite several lengthy commitments there, that a commitment to the NHP would be inappropriate because he would be disruptive and pose a danger to staff and other wards.
Appellant contends the evidence does not support court’s finding that less restrictive alternatives to a DJJ commitment would be ineffective or inappropriate because the court failed to adequately consider a commitment to the NHP. He further contends that the only evidence that the NHP was an ineffective or inappropriate program was the in-court probation officer’s speculation that due to appellant’s history of “non[ ]compliance,” appellant would create problems for other wards and he would not be successful there. We disagree.
“It is well established that procedural errors may not be raised at the appellate level if they were not raised in the trial court level. ‘[E]ven constitutional rights, including those of a minor in the area of juvenile court procedure, will ordinarily be [forfeited] by silence, i.e., by their nonassertion.’ ” (In re Christopher S. (1992) 10 Cal.App.4th 1337, 1344.) The forfeiture doctrine applies “to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.” (People v. Scott (1994) 9 Cal.4th 331, 353, italics added.)
It is clear that in reaching its decision to commit appellant to the DJJ, the court considered a commitment to the NHP because defense counsel argued that appellant should be committed there. Further, appellant does not explain how the court failed to “adequately consider” a commitment to the NHP. In any event, appellant forfeited this contention by his failure to object on any grounds when the court announced its decision to commit appellant to the DJJ. Thus, we conclude that the record contains ample evidence that supports the court’s finding that a less restrictive commitment would be inappropriate or ineffective and that the court did not abuse its discretion when it committed appellant to the DJJ.


Appellant’s Maximum Term of Confinement
Appellant contends the court abused its discretion when it set his MTC because it did not consider the following mitigating facts of his offenses and personal characteristics: (1) appellant was only 13 years old when he committed the assault with a firearm offense; (2) he had mental health issues that significantly reduced his culpability for that offense; (3) appellant acknowledged responsibility for the assault early in the criminal process; (4) his prior record consisted of only a prior adjudication for second degree burglary; (5) the assault victim did not want to pursue charges; (6) appellant had been a dependent of the court for two years; and (7) appellant had already spent one year and 236 days in custody. Alternatively, he contends he was denied the effective assistance of counsel if he forfeited this issue by defense counsel’s failure to object. There is no merit to these contentions.
Pursuant to Welfare and Institutions Code section 731, “the juvenile court must determine the maximum period of confinement to [the DJJ] based on the facts and circumstances, this maximum may not be more than that for a comparable adult, but may be less. The maximum period of confinement set by the court is not a determinate term, it is the ceiling on the amount of time that a minor may be confined in [the DJJ], and recognizes that the committing court has an interest in and particularized knowledge of the minors it commits to the [DJJ]. The [DJJ] retains the power, subject to the applicable rules and regulations, to determine the actual length of confinement at or below the ceiling set by the juvenile court and to determine the conditions of the minor’s confinement.” (In re Carlos E. (2005) 127 Cal.App.4th 1529, 1542.)
Appellant forfeited his contention that the court did not consider the circumstances noted above by defense counsel’s failure to object. (Scott, supra, 9 Cal.4th at p. 348.) Further, there is no merit to his ineffective assistance of counsel claim.
“To prevail on [a claim of ineffective assistance of counsel], [a minor] must establish his counsel’s representation fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel’s deficient performance, the result [would have been more favorable].” (People v. Mesa (2006) 144 Cal.App.4th 1000, 1007 (Mesa).) “ ‘ “The burden of sustaining a charge of inadequate or ineffective representation is upon the [minor]. The proof ... must be a demonstrable reality and not a speculative matter.” ’ ” (Ibid.)
“In considering a claim of ineffective assistance of counsel, it is not necessary to determine ‘ “whether counsel’s performance was deficient before examining the prejudice suffered by the [minor] as a result of the alleged deficiencies. ... If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” ’ [Citations.] It is not sufficient to show the alleged errors may have had some conceivable effect on the … outcome; the [minor] must demonstrate a ‘reasonable probability’ that absent the errors the result would have been different.” (Mesa, supra, 144 Cal.App.4th at p. 1008.)
Appellant contends he was prejudiced by the imposition of the maximum custody time available because his “sentence” will remain on his record and be accessible to a wide variety of individuals and entities (Welf. & Inst. Code, § 827, subd. (a)(1)(A)-(R)), his complete criminal history will be reported to the Department of Justice (Welf. & Inst. Code, § 602.5), and it could affect his parole eligibility and the actual time he serves at the DJJ. However, none of these consequences address the likelihood the court would have chosen a shorter MTC if it had considered the circumstances appellant alleges it failed to consider. Further, it is clear from their inclusion in appellant’s probation report, which the court read, that the court considered many of the circumstances appellant claims it did not. Additionally, appellant had less than three years to serve of his maximum term of confinement because he had already served 601 days in custody. Thus given appellant’s continued recalcitrant behavior, mental health issues, his need for intensive treatment, the short amount of time he could be held in custody, and the court’s awareness of at many of the circumstances it allegedly did not consider, it is unlikely the court would have set a lower MTC, even if counsel had argued that these circumstances warranted a shorter MTC.
Accordingly, we reject appellant’s ineffective assistance of counsel claim because of his failure to show how counsel’s alleged deficient performance prejudiced him. It follows that the juvenile court did not abuse its discretion when it set his MTC at four years four months.
DISPOSITION
The order is affirmed.





Description The court readjudged appellant T.S. a ward of the court (Welf. & Inst. Code, § 602), after the court sustained allegations in a wardship petition charging him with assault with a firearm (Pen. Code, § 245, subd. (a)(2)). Following several violations of probation, the court committed appellant to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ).
On appeal, appellant contends the court abused its discretion: (1) when it committed him to the DJJ; and (2) in calculating appellant’s maximum term of confinement (MTC). We affirm.
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