In re Ulises P.

Filed 9/1/06 In re Ulises P. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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In this case, after admitting numerous increasingly serious crimes, minor Ulises P. was committed by the juvenile court to the California Youth Authority.^[1] The minor appeals contending the juvenile court abused its discretion in making the commitment. We disagree and shall affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In February 2003, the minor admitted attempted burglary, receipt of a stolen vehicle, and possession of a weapon on school grounds. Other related allegations were dismissed. The minor was adjudicated a ward of the juvenile court (Welf. & Inst. Code, § 602), was placed on probation, and was ordered to serve 10 days in juvenile hall and complete 20 days of work project.

In July 2003, the minor admitted one count of unlawfully driving or taking a vehicle. Other related allegations were dismissed. The minor was continued on probation and ordered to serve 90 days in juvenile hall and 60 days on the electronic monitoring program (EMP).

In December 2003, the court found to be true allegations that the minor violated probation by being terminated from the work program for gang activity. The court continued the minor on probation and ordered him to serve 30 days in juvenile hall.

In March 2004, the minor admitted allegations that he violated probation by associating with gang members. The court continued the minor on probation and committed him to 180 days in county camp.

In November 2004, the minor admitted burglary of a vehicle. The court dismissed other related allegations, as well as pending allegations of violation of probation for possessing an illegal weapon and associating with gang members. The court ordered removal of the minor from the custody of his parents in December 2004, and he was detained in juvenile hall until subsequently being placed in a group home in January 2005.

In April 2005, the minor admitted one count of assault by means of force likely to produce great bodily injury, a strike, with respect to an incident occurring on October 24, 2004, during which a gang member was fatally wounded.^[2] Another related allegation was dismissed, along with an enhancement allegation and an alleged probation violation related to that incident.

The probation officer’s dispositional report recommended that the minor be committed to the CYA. According to the report, the recommended commitment was warranted because the minor had exhausted most or all of the previously recommended sanctions, graduated sanctions had been utilized to no avail, the minor had 13 prior referrals, had been placed on EMP twice and failed once, had seven prior commitments to juvenile hall, and had already completed the camp program and aftercare furlough. In the officer’s opinion, the minor was considered a “program failure“ and due to the “family history of gang violence and lack of participation in accomplishing family-based objectives,” was not suitable for out-of-state placement. The report concluded that the minor’s association with gang members exposed him to continual danger, and his “stubborness and reluctance to relinquish his gang ties” required commitment to the CYA.

At the contested disposition hearing on May 19, 2005, the minor objected to the recommendation, arguing he had neither “failed the program“ at the group home, nor been given a sufficient amount of time to succeed at that facility. He noted that he was participating in the program and had been informed by the head of the group home that he would be welcomed back.

The minor’s older brother testified on his behalf, stating that he too had been involved in a gang and had been placed at the same group home as the minor, where he successfully completed a nine-month program that eventually helped him to change his ways and extricate himself from gang life.

Although the probation officer conceded, as did the People, that the minor’s removal from the group home was not a result of his “failure” of that program, he noted that the minor had numerous incidents in juvenile hall and appeared to be more entrenched in gang life than his brother and should therefore be placed at the youth authority regardless of whether he failed at the group home.

The minor also argued that at the time the People alleged a violation of probation arising out of the October 24, 2004, gang fight resulting in the death of a Sureño gang member, all parties were aware of the facts and circumstances of that event, and the decision to place the minor in the group home was based on those known facts. The People responded that the violation of probation was based on the minor’s association with gang members, not the fact that the minor was responsible for the victim’s death, a fact that “came when [the People] filed the petition.”

The court denied the minor’s request to return to the group home and instead committed him to the CYA for up to nine years and four months.

DISCUSSION

The minor contends that: (1) the law requires that he must have failed all other options before being committed to the CYA; and (2) there were no new circumstances at the time of the hearing to justify removal from the group home and commitment to the CYA. We disagree on both counts.

A commitment to the CYA is within the sound discretion of the juvenile court and its decision will not be reversed unless there is a showing that the court abused its discretion. (In re Michael R. (1977) 73 Cal.App.3d 327, 332-333.) “A reviewing court must indulge in all reasonable inferences to support the findings of the juvenile court, and such findings will not be disturbed on appeal when there is substantial evidence to support them.” (Id. at p. 333.)

While it is the general rule that commitments to the CYA are to be made only in the most serious cases and only after all else has failed (In re Aline D. (1975) 14 Cal.3d 557, 564), the circumstances of a particular case may warrant such a commitment despite the availability of an alternative disposition (In re Gregory S. (1978) 85 Cal.App.3d 206, 212-213, citing In re John H. (1978) 21 Cal.3d 18, 27).

“[T]he juvenile court must consider each individual case on its merits without a mechanized approach based solely on the seriousness of the offense and must evaluate the appropriateness of the available lesser alternative dispositions in light of the purposes of the Juvenile Court Law. Before committing a minor to the [CYA], there should be some evidence in the record to support a finding that all these purposes cannot be accomplished by placement in a county facility.” (In re Michael R., supra, 73 Cal.App.3d at p. 340.)

I

Failure Of The Group Home Program

The minor contends generally that he was not given a reasonable opportunity to succeed at the group home. In particular, he argues that he did not “fail” that program. There is no dispute as to that issue. Both the probation officer and the People concede that the minor’s removal from the group home after just two weeks was not for failure of the program, but rather for the purpose of placing him in juvenile hall pending a hearing to answer to the new charges of murder and street terrorism as alleged in the most recent petition.

In any event, although the juvenile court said very little to explain the reasoning behind its decision, nothing in the record suggests that it premised its decision on the minor’s alleged failure of the program.

In the absence of any articulation by the juvenile court as to the reasoning behind its order, this court can make reasonable inferences from the record to determine if substantial evidence exists to support that order. (In re Michael R., supra, 73 Cal.App.3d at pp. 332-333.) In opposition to the recommendation that he be committed to the CYA, the minor argued that there were “inaccurac[ies]” in the dispositional report, and that returning him to the group home was a better alternative under his particular circumstances than sending him to the CYA. He cited the testimony of his older brother in support of his request to be returned to the group home, and argued that returning him to that facility would be in his best interest, given the success the program has had dealing with rival gangs.

In contrast, the court was presented with comments from the probation officer, who noted that graduated sanctions and numerous prior placements had been ineffective, and that the newly drawn offenses warranted commitment to the CYA. The probation officer also noted the fact that the minor’s gang tattoos and his significant number of prior referrals suggested he was more entrenched in gang life than his brother. He reiterated information in the dispositional report that the minor had numerous incidents (34, according to the report) during the three-month period in juvenile hall prior to the disposition hearing.

Given the evidence and testimony submitted at the disposition hearing, as well as the information contained in prior dispositional reports, we find sufficient evidence in the record to support the juvenile court’s order placing the minor in the CYA.

II

Changed Circumstances To Justify Commitment To The CYA

The minor also argues that there were no changed circumstances justifying his removal from the group home because the facts surrounding the October 24, 2004, gang incident were known at the time the February 11, 2005, violation was alleged, and no new information was brought to light prior to the disposition hearing to justify a change in placement. We do not agree.

The November 10, 2004, notice of violation of probation alleges that the minor was “cited and released for a 12020(a)(1) PC^[3] on 10/29/2004.” It further alleges that “the minor was with EDUARDO ROSAS, a validated Los Monkey Trece Sureno gang member of Brentwood, CA.” That notice also reflects that probation “directed the minor not to leave San Joaquin County nor [sic] his residence unless accompanied by his parent” due to several gang-related incidents, including the October 24 incident. However, the notation in the report regarding that event states only that the minor was with documented Sureño gang members when they were attacked by members of another gang, resulting in the stabbing death of Luis L. The focus, at that time, was the minor’s continued association with gang members, and the multiple attempts by members of the Norteño gang to injure or potentially kill him. There is no indication that the minor was considered a responsible party in that incident at the time the notice of violation was filed. It was not until after his placement at the group home that he was charged with Luis L.’s death, and later admitted assault by means of force likely to produce great bodily injury.

Also relevant at the time of the disposition hearing was the fact that, while the minor may have conducted himself in a satisfactory manner during the two-week period at the group home, his behavior at juvenile hall during the three months thereafter and prior to the disposition hearing was less than exemplary, with 34 incidents of misconduct of varying degrees of seriousness. While the minor questions the weight that should be given to each of those incidents, we are not permitted to do so. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631 [appellate court does not reweigh evidence].) The time to have made those arguments has passed.

We find that the facts and circumstances presented at the time of the disposition hearing differ significantly from those presented to the court at the time the minor was placed in the group home, justifying the juvenile court’s decision to remove the minor from the group home and order commitment to the CYA.

DISPOSITION

The judgment (order) of the juvenile court is affirmed.

ROBIE , J.

We concur:

RAYE , Acting P.J.

MORRISON , J.

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^[1] The California Youth Authority is now known as the California Department of Corrections and Rehabilitation, Division of Juvenile Facilities (CYA).

^[2] As part of a plea agreement, the original charge of murder was amended to assault with a deadly weapon by means of force likely to produce great bodily injury.

^[3] Penal Code section 12020, subdivision (a)(1) makes it a crime, punishable by imprisonment in a county jail not exceeding one year or in the state prison, to possess a weapon.