In re Victor M.

Filed 2/14/07  In re Victor M. CA5

NOT TO BEPUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court,rule 977(a), prohibits courts and parties from citing or relying on opinionsnot certified for publication or ordered published, except as specified by rule977(b).  This opinion has not been certified for publication or orderedpublished for purposes of rule 977.

IN THE COURT OFAPPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATEDISTRICT

THE COURT^*

            APPEAL from a judgment of the Superior Court of Stanislaus County. Linda A. McFadden, Judge.

            Jackie Menaster, under appointment by the Courtof Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Mary Jo Graves, ChiefAssistant Attorney General, Michael P. Farrell, Assistant Attorney General,Carlos A. Martinez and Kelly E. Lebel, Deputy Attorneys General, for Plaintiffand Respondent.

-ooOoo-

            The court readjudged appellant, Victor M., award of the court (Welf. & Inst. Code, § 602) after Victor admittedallegations charging him with assault bymeans of force likely to cause great bodily injury (Pen. Code, § 245, subd.(a)(1)) and a criminal street gangenhancement (Pen. Code, § 186.22, subd. (b)(1)).  On June 20, 2006, thecourt committed Victor to the CaliforniaYouth Authority (CYA).^[1] On appeal, Victor contends: 1) the court abused its discretion when it committedhim to the CYA; and 2) the record does not contain any substantial evidence supporting therequired finding that Victor would benefit from a commitment to the CYA.  Wewill consider these contentions together and affirm.

FACTS

Prior Cases

On May 26, 2003, during an argumentwith his uncle, 15-year-old Victor attempted to stab him with a kitchen knifebut was prevented from doing so by his mother.  Victor then broke a window onhis uncle's car and left.  Police officers soon located Victor on a streetcorner drinking a beer.  An ensuing search of Victor uncovered two shotgunsshells. 

On June 30, 2003, following hisadjudication for brandishing a weapon and possession of live ammunition, thecourt declared Victor a ward of the court and ordered him to serve 30 days injuvenile hall, 15 of which he was to serve on the Juvenile Court Work Program. 

On September 27, 2003, Victor wasarrested after he broke into a neighbor's residence.  On October 9, 2003, followinghis adjudication for first degree burglary, the court continued Victor as award of the court and ordered him to serve 60 days in juvenile hall. 

On January 2, 2004, Victor wasarrested after police found him riding in a stolen car.  A baggie containingmethamphetamine was found on the floorboard of the car near where Victor andanother passenger were seated.  The arresting officer also found a redhandkerchief in Victor's back pocket.  Following his adjudication for vehicletheft, the court continued Victor as a ward of the court and ordered him toserve 120 days in juvenile hall.

On June 7, 2004, Victor was foundto be in violation of probation based on his poor school attendance, a curfewviolation, and two positive tests for marijuana.  The court ordered him toserve 60 days in juvenile hall.

On September 2, 2004, policeofficers contacted Victor and two other males at a park where the trio waswriting gang graffiti on a table.  Victor and one other male each had a redhandkerchief hanging out of their back pockets and all three had gang tattoos.

On December 6, 2004, following hisadjudication for committing a gang offense (Pen. Code, § 186.22, subd. (d)) thecourt ordered Victor to serve 90 days in juvenile hall and 30 days on theElectronic Monitoring Program.

On January 14, 2005, the courtfound that Victor violated his probation and ordered him to serve 90 days injuvenile hall. 

The InstantOffense

At approximately 4:00 a.m. on May8, 2005, Thomas Carrillo was working as a clerk at a 7-Eleven store in Modestowhen he asked Victor and several other Hispanic males loitering in the parkinglot to leave.  The males refused and began to taunt Carrillo.  Carrillo toldthe males he was going to call the police, retrieved a cordless telephone fromthe store, and pretended to call.  This caused the males to get angry andseveral of them, including Victor, attacked him.  Carrillo was not able to seewhich males actually hit him because he covered his face after being knocked tothe ground.  However, surveillance video of the parking lot showed that afterCarrillo left the camera's field of vision he was dragged back by Anthony A.and Steven J.  Anthony grabbed Carrillo in a headlock and wrestled him to theground.  Steven J. then began kicking Carrillo and Anthony S. began hitting himwith a metal pipe on the upper torso as Carrillo was struck by the othermales.  Next, Victor took a running start and delivered a football-style kickto Carrillo's head and face area.  Victor also held Carrillo down as he punchedhim in the head.  Two other unidentified males also kicked Carrillo while hewas on the ground.

When officers arrived on the scene,they found a stunned Carrillo leaning against a wall suffering from variouscuts and bruises and had him transported to a hospital by ambulance.  Victor,Anthony A., Anthony S., and Steven J. were arrested later that morning.

Victor's probation report indicatedthat during the preceding year Victor had been in juvenile hall custody 336days and had earned his GED.

The report also noted that Victorwas raised by his grandmother and that his mother had a lengthy arrest historyinvolving drugs and property crimes and was currently serving a one-yearsentence in county jail.

The report concluded that Victorhad not taken the terms and conditions of his prior probation seriously becausehis probation had been violated on three separate occasions and Victor hadbench warrants and/or pickup and hold orders issued four times. 

The report also chronicled thefollowing incidents.  On July 1, 2003, during an appointment with his probationofficer, Victor admitted that he was a gang member.  He also tested positivefor marijuana and cocaine.

On August 4, 2003, Victor's motherreported that Victor refused to go to a probation department appointment andhad left the residence in her vehicle without permission.

On November 18, 2003, Victor testedpositive for amphetamine and marijuana.  He also failed to complete the Cleanand Sober Program.

On May 14, 2004, during a probationdepartment appointment, Victor admitted using marijuana and his grandmotheradvised the probation officer that he had been violating his curfew.  Theofficer also admonished Victor about his poor school attendance. 

On May 24, 2004, Victor's motherreported that he had been absent from home for several days.

On June 21, 2004, when theprobation officer contacted Victor at juvenile hall Victor told him that hewanted to be transferred from his unit because there were too many â€