In re
Filed 3/20/13 In re Israel M. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE
DISTRICT
DIVISION THREE
In re ISRAEL
M., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and
Respondent,
v.
ISRAEL
M.,
Defendant and
Appellant.
G046781
(Super. Ct.
No. DL041202)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, Nick A. Dourbetas, Judge. Affirmed as modified.
Reed Webb, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Gary Brozio and Meagan J. Beale, Deputy
Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
An amended petition
charged Israel
M., who was then 17 years old, with two counts of
while intoxicated (Pen. Code, § 191.5, subd. (a)) and two counts of driving
with a blood alcohol content of .08 percent or more causing bodily
subd. (b)). It also alleged he caused
bodily injury or death to more than one victim
(Veh. Code, § 23558) and personally inflicted great bodily injury (Pen.
Code, § 12022.7, subd. (a)).
Minor admitted all of
the crimes and enhancements. At the
disposition hearing the juvenile court declared minor to be a ward of the court
(Welf. & Inst. Code, § 602)
and committed him to the “care, custody and control of the Orange County
probation officer [sic] for
commitment to juvenile hall or appropriate facility for 1095
days . . . .â€
Minor challenges the
determinate nature and the length of his commitment. We modify the disposition order to state a
maximum term rather than a fixed term of confinement, and affirm the
disposition order in all other respects.
FACTS
The following statement
of facts is taken from the disposition report prepared by the probation
department and considered by the juvenile court without objection. There is apparently no dispute about these
facts.
Just after 4:00 a.m. on October 1, 2011, minor was driving home in his van with
friends after a long night of partying.
One of those friends who had seen minor drunk before later told the
police he had never seen minor “as drunk as he was that night.†Minor had initially agreed to let that friend
drive and had given him the keys, but then changed his mind, began arguing, became
very aggressive, and demanded to drive, even though that friend had told him he
was too drunk to do so.
At first minor appeared
to drive fine but then he began swerving, driving faster, and running red
lights. Minor’s friends in the van kept
telling him he should not be driving but he ignored them.
While speeding south in
a 35-mile-per-hour zone on Harbor Boulevard near Disneyland in Anaheim, minor
ran a red light and collided with two pedestrians who were crossing at an
intersection on a green light in a marked crosswalk. The pedestrians, a 66-year-old woman and a
56-year-old woman, were thrown into the air and killed by the blunt force
trauma of the collision. An accident
reconstructionist estimated the impact speeds at 64 to 69 miles per hour. Minor’s blood alcohol level was later determined
to be 0.23 percent.
After the collision the
van spun out of control and came to rest on a center median about 50 feet from
the victims. Minor then told his friends
to leave the scene so they would not get into trouble but he stayed in the van
and tried to restart it. Minor never
checked on the victims or called 911.
When the police arrived
minor stated he did not see the pedestrians.
He told the police he did not want to kill anyone and said, “Just take
me to jail.†He lied about what and how
much he had been drinking. He also
falsely claimed he had been alone in the van, had a green light, and had only
been driving about 35 or 40 miles per hour.
Minor was uncooperative with the paramedics, became combative during the
ambulance ride and had to be restrained to the gurney. Nitrous oxide tanks were found in the van and
minor admitted he inhales nitrous oxide for recreation.
DISCUSSION
Minor first contends,
and the Attorney General concedes, the 1,095-day fixed term of confinement is
not authorized by law.
name="_ftnref2" title="">[2] We agree.
(§ 726, subd. (c); In re Julian R.
(2009) 47 Cal.4th 487; In re A.G. (2011)
193 Cal.App.4th 791, 800.) It follows
the disposition order must be modified to state a maximum, rather than a fixed
term.
Minor next contends the
term of confinement is inconsistent with the rehabilitative objective of
juvenile proceedings and constitutes an abuse of discretion. We are not persuaded.
Rehabilitation is not
the only objective at issue. “The
purpose of juvenile delinquency laws is twofold: (1) to serve the ‘best interests’ of the
delinquent ward by providing care, treatment, and guidance to rehabilitate the
ward and ‘enable him or her to be a law-abiding and productive member of his or
her family and the community,’ and (2) to ‘provide for the protection and
safety of the public.’†(
608, 614.)
Furthermore, even the
rehabilitation objective itself may be furthered by “guidance,†including
“punishment†in the form of “commitment†to a local detention facility (such as
juvenile hall), for a period not to exceed the maximum term of imprisonment
that could be imposed upon an adult convicted of the same offenses. (§§ 202, subds. (b) & (e), 726, subd.
(c).)
In this context the
juvenile court has broad discretion to fashion a disposition, including
punishment, consistent with the best interests of the minor and the
rehabilitative objective, all “in conformity with the interests of public
safety and protection.†(§ 202, subd.
(b); In re Charles G.,
1392, 1396.) We cannot reverse the
disposition absent a clear abuse of that discretion. (In re
Christopher H. (1996) 50 Cal.App.4th 1001, 1006; In re Jose M. (1988) 206 Cal.App.3d 1098, 1104.) None is apparent.
The record in this case
amply supports the maximum term of confinement in the disposition as
modified. At the disposition hearing the
court stated it had read and considered the disposition report prepared by the
probation department, together with the disposition briefs filed by the
parties. The court also entertained and
considered the oral arguments of counsel, including the defense’s request for a
one-year commitment to juvenile hall and petitioner’s request for a three-year
commitment to juvenile hall.
The court noted minor’s
“series of very bad decisions†on the night in question. The court also noted minor had been arrested
a year earlier in another alcohol-related incident, and that he had been given
an opportunity to learn from that mistake but had failed to do so.
The court then
summarized the dispositive facts as follows:
“The unfortunate thing
is that you continued in making bad decisions all evening long, going to
parties, getting drunk. Then you made
the tragic decision to ignore your three friends who were attempting to prevent
you from driving.
“You weren’t alone when
you had three other voices of reason that you ignored. You continued to ignore them while you were
running red lights. It’s a bad thing to
drink so much, but then you took that further and got behind the wheel of the
van.
“And you did not just
put [the victims’] lives in danger; but you also put your three friends[’]
lives in danger. You didn’t care to
check on the victims, but rather tried to start the van back up twice and you
then instructed your friends to leave so they wouldn’t get in any trouble.
“And I don’t know if
that means that you were trying to leave . . . or if you
were more concerned about your car.
Either way you disregarded [the victims]. You never called 911; but rather got arrested
with the paramedics at the scene and demanded to check on your friends.
“The probation officer’s
report indicates that you also told the police that you had no passengers in
the van. And that you had a green light
when you hit the victims[,] with a BAC of .23
percent . . . .
“You were not 15, 16, or
even just turned 17. You were 17 and a
half years old. [Y]ou killed [two
women]. By doing so, you’ve had a rippling
effect on their families and their loved ones.
The consequences of what you did to them and their loved ones is
permanent.
“These two women didn’t
die of natural causes, or of cancer, or of a heart attack; but because of your
recklessness a grandchild won’t know her grandmother, because of what you did.
“You are a smart person
as evidenced by these grades that I’ve looked at. You even had mostly A’s dating back to 2009
and 2010. Your actions have affected a
lot of lives, including yours. And I
sincerely hope that you learn from this.â€
The court concluded by
stating it was “mindful of the purpose and goal of juvenile court and the
Welfare and Institutions Code section 602.
The minor’s rehabilitation as well as accountability for his actions are
considered.â€
Thus, when fashioning
the disposition, it appears the court properly considered: “(1) the age of the minor, (2) the
circumstances and gravity of the offense[s] committed by the minor, and (3) the
minor’s previous delinquent history.†(§
725.5.)
From all these facts,
the trial court could have inferred (1) minor’s best interests require an
environment providing firm, strict discipline for his out-of-control behavior
as evidenced by the current and prior crimes, (2) without such discipline and
realignment of his social and moral structure he poses a demonstrated threat to
public safety, and (3) minor requires intensive
his alcohol and substance abuse. (Cf.
The offenses here were
particularly egregious. Further, minor’s
failure to help the victims or even call 911 “exhibits a shocking callousness
which requires appropriate treatment and guidance. This conclusion is strengthened when one
considers the minor’s unrepentant and cavalier attitude following his detention
and arrest.†(In re Michael D., supra,
188 Cal.App.3d at p. 1397.)
Nothing in this record
suggests the challenged period of confinement was impermissibly “based solely
on retribution grounds (§ 202, subd. (e)(5)) . . . .†(In re
Michael D., supra, 188 Cal.App.3d
at p. 1396.) Similarly, nothing here
indicates the challenged period of confinement is cruel and unusual within the
meaning of the Eighth Amendment, even when considering the diminished moral
culpability of minors as a class. (
262 [term of years beyond minor’s natural life expectancy in nonhomicide case
is cruel and unusual].)
Finally, the three-year
maximum term of confinement is less than one-third of the 13-year “maximum term
of imprisonment that could be imposed on an adult convicted of
the . . . offenses . . . .†(§726, subd. (d).)
Under these
circumstances the court did not abuse its discretion. To the contrary, it appears the court
carefully weighed and appropriately balanced the competing goals of
rehabilitation and public safety, as required.
DISPOSITION
The disposition is
modified to state a three-year maximum rather than a 1,095-day fixed term of
confinement. As so modified the
disposition is affirmed.
THOMPSON,
J.
WE CONCUR:
BEDSWORTH,
ACTING P. J.
IKOLA, J.
name="_ftn1" title=""> [1] All further
statutory references are to this code.
name="_ftn2" title=""> [2] We are not
sure why the court expressed the term in days but we will hereafter refer to
the term as three years.
