Filed 8/11/17 In re Ethan R. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO


In re ETHAN R., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
ETHAN R.,
Defendant and Appellant.




A149080

(Marin County
Super. Ct. No. JV26232C)


Ethan R. (minor) admitted one count of rape where the victim was prevented from resisting by intoxication (Pen. Code, § 261, subd. (a)(3)), and was placed on indefinite probation in his father’s home. Within six months, minor ran away from home and went missing for over two weeks. He smoked marijuana daily, associated with gang members, and admitted to violating probation twice. Following the second violation of probation, the juvenile court committed minor to the Division of Juvenile Facilities (DJF) for eight years with credit for time served in precommitment custody.
On appeal, minor contends the juvenile court abused its discretion in committing him to DJF. He further contends the juvenile court failed to exercise its discretion when setting his maximum term of confinement. Finally, he argues his sentence is unauthorized because it does not reflect credit for time served.
We will remand the matter to the juvenile court to allow the court to exercise its discretion in setting the maximum term of confinement. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Minor’s Offense
On April 7, 2015, the victim, a 14-year-old middle school student, spent the afternoon after school with minor and two other boys, Cesar and Rico. The victim had previously dated Cesar. The group planned to drink vodka and get drunk.
The next day, the victim told a school counselor that she had consumed a bottle of vodka and at some point had sex with Cesar the previous evening. She reported that she blacked out and had limited recollection of what happened. The school notified law enforcement. In an interview with a detective, the victim explained that she woke up that morning and discovered bruising and scratches on her thighs. She was wearing Cesar’s shorts, and she was missing her underwear and her jeans. The victim reported that she became “really drunk,” at some point she was sitting in a tree with Rico, Cesar shook the tree, and she fell. She thought she blacked out after falling from the tree. The next thing she remembered was Cesar putting his shorts on her and then he walked her part of the way home. Walking home, the victim realized she could barely walk, and her whole body was sore.
The victim agreed to make a pretext telephone call to minor. In a conversation on April 10, 2015, minor told the victim Cesar was the “first one” to have sexual intercourse with her. Minor told the victim she gave blow jobs to “all of us.” In another telephone call two days later, minor told the victim it was “your fault for fucking drinking if that’s how you get when you are drunk expect it straight up cause that is what you tell people when you get drunk ‘cause I know you told Rico you get hella sexual when you get drunk and you got hella drunk.” Minor told the victim they did not force her to drink.
On May 5, 2015, Rico was arrested and interviewed by the police. He told an officer he had sexual intercourse with the victim, and he had to continuously pick her up during sex because she was falling to the ground drunk. He reported that he, Cesar, and minor were “associates” of the Sureño gang. The next day, Cesar was arrested. He agreed that the victim was too intoxicated to consent to sexual interactions and likely would not have had sex with three people had she been sober. Cesar admitted that they “tagged” the area where the sexual assault occurred. He agreed that they tagged the wall so the victim understood their conduct was gang activity.
On May 13, 2015, minor was arrested. He told the police the victim orally copulated him and he digitally penetrated her before they had sexual intercourse on a wooden pallet. He knew the victim was heavily intoxicated.
The victim’s mother reported that the victim was so traumatized after the offenses that she was hospitalized pursuant to Welfare and Institutions Code section 5150 as a danger to herself. After release from the hospital, the victim had serious panic attacks, suicidal ideation, and engaged in self-mutilation.
Petition and Initial Disposition
On May 14, 2015, the Sonoma County District Attorney filed a four-count wardship petition (§ 602) alleging that minor committed forcible rape and rape by a foreign object while acting in concert (Pen. Code, § 264.1, subd. (b)(2); count 1), sexual penetration by a foreign object (Pen. Code, § 289, subd. (e); count 2), rape by use of drugs (Pen. Code, § 261, subd. (a)(3); count 3), and oral copulation by anesthesia or controlled substance (Pen. Code, § 288a, subd. (i); count 4).
At the jurisdictional hearing the following month, minor admitted count 3, rape by use of drugs, and the remaining counts were dismissed. The Sonoma County Juvenile Court directed Dr. Laura Doty to conduct a psychological evaluation of minor in anticipation of the hearing on disposition.
In her evaluation filed with the court in July 2015, Dr. Doty reported that minor’s parents broke up when he was two years old, and he lived primarily with his mother in Sonoma County and Modesto. According to minor, he was expelled from a middle school at the end of seventh grade and was expelled from another school at the beginning of eighth grade. He was not attending any school at the time of the offense. While not attending school, minor said he “just [did] stupid stuff,” and hung out “with the wrong people, doing stupid things,” like smoking marijuana and drinking. He reported that he started using marijuana when he was 13 years old and smoked almost every day.
Minor complained that he felt criticized and judged by others at school. His mother “begged” him to try counseling, but he stopped after a single session. Regarding the offense, minor said the victim fell from a tree and sat next to him, and “I started touching her and she didn’t say ‘no,’ and one thing led to another.” He did not use protection and did not ask for consent because he “thought of her as the type who would pretty much want to do something like that.” (Underlining in original.) He also said, “I was drunk, too. It just happened as it happened.”
Minor blamed his mother for not “making” him obey her. He said he planned to live with his father because he would “mak[e] sure I didn’t mess up.” Dr. Doty observed that throughout the interview, minor “presented as an emotionally immature teenager with no insight into his own motives or behaviors. Indeed, he appears not even to perceive himself as the agent of his own life, but instead appears to view others as responsible for his choices, blaming peers for leading him into temptation, and his parents for failing to supervise him. At the same time, he expressed resentment at authority figures . . . .” Dr. Doty also found that minor “expressed veiled contempt for the victim” and “presented as having no remorse for his actions.”
Dr. Doty concluded that minor met the criteria for cannabis use disorder and he may have a conduct disorder, adolescent onset, with limited prosocial emotions. She recommended a behaviorally-based residential program for teenaged boys who have committed sexual offenses. If a residential program was not available, she recommended out-patient treatment with a male therapist experienced in working with sexual offenders. She also suggested family therapy “given what appears to be limited rapport between [minor] and his father and [his father’s girlfriend].” Finally, she recommended “[i]ntensive probation supervision . . . to convey to the minor the seriousness of his offense, and the necessity that [he] demonstrate on a routine and consistent basis that he is working on being responsible for his own behavior across all settings.”
The Sonoma County probation department filed a report and recommendation in July 2015. Prior to the admitted offense, minor was referred to the probation department in January 2015, when law enforcement found him with spray paint loitering with three other juveniles, including Rico and Cesar. Minor was “highly agitated,” walked aggressively toward the officer while swinging his arms, and yelled, “What the fuck did I do?” The officer handcuffed minor and searched him. He found a folding knife, a lighter, a glass smoking pipe, and 2.4 grams of marijuana. Minor admitted to spraying graffiti on a nearby wall. The officer observed “Sur,” “X3,” and “NK” (Sureño gang symbols) written on the wall with spray paint matching the paint found with minor. Minor was cited and released to his mother. In March 2015, the probation department contacted minor’s mother, who reported that she planned to move with minor to Modesto. She said minor was doing better and was no longer associating with negative peers. Based on the mother’s report, the probation department elected to dismiss the matter.
Minor admitted the facts of the sex offense to a probation officer. Minor admitted that the victim was the most intoxicated of the four of them, and she said that she “didn’t feel good.”
Minor’s mother said she knew this was a very serious crime and she did not want minor “to get worse.” Minor’s father said he hoped minor would be given an opportunity to engage in treatment. Minor’s father and his girlfriend said they were prepared to have minor reside with them and that they could provide necessary therapeutic treatment for him through their medical insurance.
Minor admitted that his mother had kicked him out of the house on a couple occasions, and he stayed away from home overnight without permission from time to time. He reported that some of his friends were over 18 and had cars. Minor began eighth grade at a public middle school and was subject to six suspensions. According to minor, many of the suspensions were gang-related. He was transferred to another school, but at an orientation at the new school, four students asked if he “banged,” and minor’s mother declined to enroll him fearing he would be assaulted. His mother found that minor became more defiant and disrespectful, and his dress changed when they moved to Santa Rosa in 2012. Minor refused to wear red and asked for a particular brand of sneakers, which she refused to buy because she knew the shoes were worn by Sureño gang members.
Regarding his current custody, minor had been held at juvenile hall for a month, and his conduct was good; staff described minor as generally respectful, quiet, and requiring minimal redirection. He associated only with Sureño gang members in his unit.
Members of the screening committee differed in their recommendations for minor. Some members believed minor should be placed in a residential program as recommended by Dr. Doty. Other members found the minor’s offense particularly egregious and callous and believed it warranted direct commitment to DJF.
The probation department noted that an assessment tool for juveniles indicated minor had “several mental health alerts which require further investigation, namely aggression, substance abuse, depression, and traumatic experiences,” which “in conjunction with truancy, gang involvement, family discord, erroneous thinking, and a lack of respect for authority, render him at a high-risk to re-offend.”
The probation department recommended a diagnostic evaluation by the DJF, and the juvenile court followed the recommendation, committing minor to DJF for a 90-day period of observation and diagnosis.
A casework specialist prepared a diagnostic evaluation report dated December 4, 2015. The specialist wrote that minor had limited or ineffective skills to prevent relapse, and he did not take responsibility for the severity or significance of his actions and did not understand the impact of his conduct on the victim. The treatment team recommended that minor “be committed to participate in a highly structured and supervised sex offender treatment program at [DJF] that is specific to the treatment of youthful sex offenders,” the Sexual Behavior Treatment Program (SBTP). The SBTP would help minor address the issues that led to his offense. The specialist advised, if the court decided against DJF commitment, then “it is imperative that this youth is afforded the opportunity and mandated to participate in a community level program capable of offering a structured and comprehensive program specific to the treatment of youthful sex offenders.”
Minor’s case was transferred to Marin County, where his father resided, for disposition. The prosecutor argued minor should be committed to DJF. Minor’s attorney requested that minor be released on probation to reside with his father, arguing his offense “was a crime of opportunity and circumstance occasioned by the toxic mix of intoxicants and teenage hormones” in which “the victim appeared to be a willing participant.” The Marin County probation department also recommended keeping minor in the community under its supervision, explaining in a memo to the juvenile court, “It is the hope of Probation that . . . the change in environment both geographically and familial [from the mother’s residence in Santa Rosa to the father’s residence in Marin County] will be more favorable to [minor].”
At the dispositional hearing on January 27, 2016, the Marin County Juvenile Court declared minor a ward of the court. Probation Officer Tony Raitano advocated for placing minor with his father. He noted, “if the minor is granted supervision through the Marin County probation department within the community, that it’s a case that will be supervised on a tight leash. Meaning that if there is a violation of probation, it will be brought in front of the Court again pretty immediately.”
The juvenile court expressed concern that all the evaluators emphasized that minor needed to be placed in a juvenile sexual offender program, but the probation department had not identified a suitable treatment program. Raitano acknowledged Marin County did not have adequate resources for certain treatment, but identified two potential outpatient treatment programs for juvenile offenders, one in San Francisco and another in Vacaville.
The juvenile court recognized, “there’s been very strong discussions about moving straight to [DJF],” but found it appropriate to place minor on probation with a requirement that he participate in a juvenile sexual offender program. The court suggested that poor performance on probation could lead directly to a commitment to DJF, stating “The Court at this time is not ordering that he be turned over to [DJF].” The court ordered minor to obey the instructions of his parents, follow a curfew, participate in the services provided, and abstain from use of alcohol and illicit drugs, among other conditions of probation.
First Violation of Probation
Four months later, on May 27, 2016, the Marin County probation department filed a notice of probation violation. It was alleged that on May 3, 2016, “minor stood up during class and announced that there was a gun on campus and someone was going to get shot,” which resulted in minor’s suspension from school. It was further alleged that on April 29, 2016, minor’s father reported that minor ran from him and his whereabouts were unknown for four hours. The probation department recommended that minor be committed to juvenile hall for six days (with two days credit for time served) and he continue on probation.
The same day the notice of probation violation was filed, minor admitted the second allegation, that he ran away from his father. A probation officer told the court that minor “barely made it onto probation because his charges were so serious” and probation was “keeping an eye on this case because he is not supposed to have any transgressions at all because he was considered such a high risk to be on probation, and he is taking it very lightly.” She noted, “there are three alleged incidents[ ] now in a very short amount of time [and] really that is not a good indication. We’re very concerned about the direction he’s heading in.”
The juvenile court followed the probation department’s recommendation and detained minor at juvenile hall for six days with two days credit and reinstated probation. The court addressed minor, “I think you are on thin ice, and I think that you do have to really take this seriously.”
Second Violation of Probation
On June 22, 2016, a second notice of probation violation was filed alleging minor left his father’s residence on June 19, 2016, and his whereabouts were currently unknown, and minor tested positive for marijuana on May 26, and June 13, 2016. A warrant was issued for minor’s arrest.
On July 7, 2016, minor was taken into custody. At a hearing the next day, minor admitted the allegations. The juvenile court found minor was likely to flee and ordered him detained in juvenile hall pending disposition.
The probation department filed a disposition report recommending that minor be continued on indefinite supervised probation and that he be committed to juvenile hall for 180 days in custody with the possibility of release on electronic monitoring if and when appropriate. The disposition report noted that minor had multiple suspensions throughout the school year and was suspected of being involved in a physical altercation. There were also “multiple incidents of not abiding by his father’s directives,” and minor started using marijuana on a consistent basis at the end of May 2016.
Minor admitted to being an active gang member and having “jumped in” to the Sureño gang when he was 13 years old. While he was missing from his father’s residence, minor associated with Sureño gang members in Santa Rosa. During this period, he stayed with his maternal aunt, an active heroin user, in Sonoma County. When he was arrested, minor “had no real articulation as [to] why he had absconded, other than to say that he did not want to have rules and structure in place anymore.”
The probation department reported that minor’s sexual offender therapy “ha[d] been delayed for numerous reasons.” The department planned for minor to attend a program in San Francisco, but father’s medical insurance would not cover the cost. The report continued, “Shortly after that determination [that insurance would not pay for the treatment], the minor went AWOL from his residence.”
Minor’s case was taken to a case review committee “[d]ue to the seriousness of the original offense, the minimal progress of his rehabilitation, and the significant concerns regarding his potential for causing more harm in the community.” The committee concluded that standard community supervision was no longer a viable recommendation. Minor presented a safety threat to the community “due to the fact that the minor is entrenched in the Sureno gang lifestyle, he has committed a violent offense, and he has demonstrated that he is a flight risk.” The committee did not recommend out of home placement because minor presented a flight risk and California facilities are not secure. The committee did not recommend commitment to DJF because this would “seriously impair [minor’s] ability to reestablish a relationship with his father.”
The probation department explained its recommendation as follows: “While in custody at Juvenile Hall, the minor will continue to be provided with services such as individual and family therapy and Sexual Offender treatment.[ ] The hope is that [minor] will take advantage of these services, reflect on both his delinquent behavior and the opportunity being afforded to him, and decide to make substantial changes in his lifestyle. Should he not do so, he will likely face a future disposition with significantly more containment, rules and structure, such as an out of home placement facility, or a term with [DJF].”
Commitment to DJF
On July 22, 2016, the juvenile court held a hearing on disposition and announced its decision to commit minor to DJF. The court explained: “I reviewed the case file; and, obviously, specifically, in detail, the report. However, the Court reviewed all of the matters . . . set forth in the case file, and I did form an opinion that minimal to little rehabilitation has been obtained by [minor] from the time he came into court to the present.
“And in consideration of the seriousness of the charge—charges in this case, I also take into consideration, I think he was 13 years old when he became a gang member, and has been involved in violent offenses, in review of the main items that I have just stated, the Court finds that [DJF] would be—he is eligible for [DJF], and that I think it would . . . prepare and fully rehabilitate him. He would be in a place where that is the core focus, that they have rehabilitation. [¶] . . . [¶] I think that the structure at [DJF] is a positive one. I know that people talk about it in negative ways, but the programs and the treatment for the minors, the juveniles who are there for a specific purpose, in this case, rehabilitation, and there are some serious areas that need rehabilitation with [minor].”
On July 26, 2016, the juvenile court committed minor to DJF for a maximum period of confinement of eight years with credit for 316 days. Minor was required to register as a sex offender.
On August 9, 2016, minor filed a petition to modify or set aside the juvenile court’s order, which was denied. Minor timely appealed.
DISCUSSION
I. Sufficient Evidence Supports the Commitment to DJF
“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 . . . .’ ” (In re Charles G. (2004) 115 Cal.App.4th 608, 614–615, quoting § 202.)
Under section 734, “No ward of the juvenile court shall be committed to the [DJF] unless the judge of the court is fully satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefited by the reformatory educational discipline or other treatment provided by the [DJF].” In determining the appropriate disposition, the court is required to consider the probation officer’s report (§ 706) and, specifically, “ ‘(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.’ ” (In re Jonathan T. (2008) 166 Cal.App.4th 474, 484–485, quoting § 725.5.)
“A commitment decision is reviewed on appeal for abuse of discretion, indulging all reasonable inferences to support the juvenile court’s judgment. [Citation.] ‘We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence.’ [Citation.] ‘A [DJF] commitment is not an abuse of 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 Edward C. (2014) 223 Cal.App.4th 813, 829 (Edward C.).)
“An appellate court will not lightly substitute its decision for that rendered by the juvenile court,” and “will not disturb . . . [the] findings [of the juvenile court] when there is substantial evidence to support them. [Citations.] In determining whether there was substantial evidence to support the commitment, we must examine 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.) “ ‘A trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence.’ ” (In re Khalid B. (2015) 233 Cal.App.4th 1285, 1288.) The juvenile court’s “specific reasons for [a DJF] commitment need not be stated in the record. Rather that determination must be supported by substantial evidence contained within the record.” (In re Jose R. (1983) 148 Cal.App.3d 55, 59.)
On appeal, minor contends the juvenile court’s dispositional order committing him to DJF must be reversed because there was insufficient evidence that less restrictive alternatives were unavailable or inappropriate, and there was insufficient evidence that he would likely benefit from the commitment. We conclude there was sufficient evidence to support the juvenile court’s order committing minor to DJF.
Minor ran away from home and was missing for over two weeks when he was arrested. This supports the juvenile court’s finding that minor was a flight risk and its implicit finding that minor required commitment to a secure facility. Minor suggests there was insufficient evidence that juvenile hall was unavailable or inappropriate, noting that the probation department recommended minor be committed to juvenile hall. But it is the juvenile court, not the probation department that is vested with discretion to determine the appropriate disposition; rejecting the probation department’s recommendation is not, in itself, an abuse of discretion. (See, e.g., People v. Hernandez (1980) 111 Cal.App.3d 888, 898.) The probation department’s “recommendation is advisory only, provided in order to aid the sentencing court in determining an appropriate disposition, and may be rejected in its entirety. (People v. Delson (1984) 161 Cal.App.3d 56, 63.)
In minor’s case, a treatment team had recommended that he “be committed to participate in a highly structured and supervised sex offender treatment program at [DJF] that is specific to the treatment of youthful sex offenders.” The casework specialist emphasized it was imperative for minor to participate in a “program capable of offering a structured and comprehensive program specific to the treatment of youthful sex offenders.” The juvenile court initially granted minor a much less restrictive disposition, allowing him to live at home and seek outpatient treatment. Minor’s response was to run away, explaining “he did not want to have rules and structure in place anymore.” There was sufficient evidence to support the juvenile court’s implicit finding that minor would benefit from the high level of rules and structure provided by DJF. Despite minor’s arguments, “[a] DJF commitment is not necessarily contrary to a minor’s welfare. The DJF has many rehabilitative programs that can benefit delinquent wards. [Citations.] Some wards . . . may be best served by the structured institutional environment and special programs available only at the DJF.” (In re Greg F. (2012) 55 Cal.4th 393, 417 (Greg F.).)
Minor argues there is no evidence that a commitment to juvenile hall would be inadequate or inappropriate, but the probation department specifically acknowledged that DJF would provide “significantly more containment, rules and structure” than placement in juvenile hall. “[T]here is no rule that . . . a placement cannot be ordered unless less restrictive placements have been attempted, and there is no requirement that the juvenile court expressly state on the record the reasons for rejecting less restrictive placements. [Citations.] Rather, ‘if there is evidence in the record to show a consideration of less restrictive placements was before the court, the fact the judge does not state on the record his consideration of those alternatives and reasons for rejecting them will not result in a reversal.’ ” (In re Nicole H. (2016) 244 Cal.App.4th 1150, 1159.) Here, the juvenile court could reasonably determine that DJF would provide more structure and specialized treatment than juvenile hall could provide and, further, that such structure and treatment were necessary in minor’s case.
Minor’s reliance on In re Calvin S. (2016) 5 Cal.App.5th 522 (Calvin S.) is unavailing. In Calvin S., the minor, Calvin, had an IQ of 58. The Westside Regional Center informed the juvenile court that it could provide services to address Calvin’s developmental disability and help him transition into the community upon release. The regional center was already providing services to Calvin, which could continue while he was in juvenile hall, but such services would not be available at DJF. (Id. at pp. 526–527.) Calvin’s counsel asked that he be allowed to remain in juvenile hall, so he could continue services. The juvenile “court responded, ‘We’re not a treatment center. We’re a detention center.’ ” (Id. at p. 527.) The court committed Calvin to DJF for the maximum term. (Id. at p. 525.)
The Second District Court of Appeal concluded the juvenile court abused its discretion in committing Calvin to DJF. (Calvin S., supra, 5 Cal.App.5th at p. 525.) The appellate court explained, first, “[i]f the juvenile court meant that commitment to juvenile hall was not an available option at disposition, the court was incorrect,” (id. at p. 529) and, second, “to the extent the juvenile court was suggesting that commitment to juvenile hall was not appropriate because of the length of Calvin’s maximum period of confinement, again there was no evidence to support such a finding” (id. at p. 532).
Calvin S. is easily distinguishable. First, in contrast to Calvin S., there was no evidence that minor was receiving suitable treatment at juvenile hall that would not be available at DJF. Second, nothing in the record indicates that the juvenile court in this case believed juvenile hall was not an available option for disposition. The juvenile court simply exercised its discretion in rejecting the probation department’s recommendation that minor be committed to juvenile hall.
Minor also argues that the juvenile court was required to consider an out-of-state placement before committing him to DJF. The Attorney General points out that this argument conflicts with his position that he should have been placed at juvenile hall so that he could maintain and develop a relationship with his father. Given this consideration, the juvenile court reasonably could have determined that an out-of-state placement would be inappropriate because it would be more detrimental to the father-son relationship than commitment to DJF, which is located in Stockton.
Minor’s remaining arguments are without merit. He argues that he should not be committed to DJF because he had no delinquent history, and his two probation violations were for noncriminal conduct. But minor admitted he “jumped in” a gang when he was 13 and continued to associate with gang members even at juvenile hall, he smoked marijuana every day, and he ran away from home. Certainly, we cannot say that minor’s circumstances and delinquency history preclude a commitment to DJF. Next, minor argues that having sex with a 14-year-old who is too intoxicated to consent is “less serious than [offenses] which have typically resulted in a [DJF] commitment.” Minor’s attempt to characterize his offense as a youthful indiscretion and crime of opportunity is unavailing, not to mention offensive. He engaged in a gang rape of a victim with two other gang members, one of whom “tagged” the area so the victim would know their conduct was gang activity. Members of a screening committee found his crime “particularly callous and egregious,” and the Sonoma County probation department (the county where his crime occurred) described the offense as a “heinous crime inflicted on a young victim.” We also reject minor’s assertion that there was no evidence of a high risk of reoffending. As we have described, in the six months he was on probation, minor failed to follow his father’s directives, he ran away from home and was found 18 days later with his heroin–using aunt, he resumed smoking marijuana every day, and he associated with fellow gang members. He had multiple suspensions throughout the school year and was suspected of engaging in a physical altercation. Further, the probation department concluded minor presented a threat to the community.
Again we observe that “[t]he DJF has many rehabilitative programs that can benefit delinquent wards” and that some wards “may be best served by the structured institutional environment and special programs available only at the DJF.” (Greg F., supra, 55 Cal.4th at p. 417.) In this case, there was sufficient evidence to support findings that minor would receive a probable benefit from commitment to DJF and that less restrictive alternatives would be ineffective or inappropriate. (See Edward C., supra, 223 Cal.App.4th at p. 829.) Accordingly, the juvenile court’s disposition committing minor to DJF was not an abuse of discretion. (See ibid.)
II. The Record Indicates the Juvenile Court Failed to Exercise Discretion in
Setting the Maximum Period of Confinement
When a ward is committed to the DJF, he or she “ ‘may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter or matters that brought or continued the ward under the jurisdiction of the juvenile court, which may not exceed the maximum period of adult confinement as determined pursuant to this section.’ (§ 731, subd. (c), italics added.) Succinctly put, the juvenile court must consider the crime’s relevant ‘facts and circumstances’ in determining whether the minor’s maximum commitment period should be equal to or less than the maximum confinement term for an adult.” (In re Julian R. (2009) 47 Cal.4th 487, 495 (Julian R.), fn. omitted.) There is no requirement of “an oral pronouncement of the juvenile’s maximum period of confinement, accompanied by a statement of reasons.” (Id. at p. 497 [rejecting minor’s contention that an oral pronouncement and statement of reasons is required for dispositions of juvenile delinquents].)
In the present case, the juvenile court used Judicial Council form JV–732, as revised January 24, 2012 (form JV–732) for its order committing minor to DJF. Minor points out that, under item 8. “Confinement period,” the court did not check the box 8(b) for the statement “The court has considered the individual facts and circumstance of the case in determining the maximum period of confinement.” Minor contends this “affirmatively demonstrates that the court failed to exercise its discretion in setting [his] maximum term of confinement” at “2920 days or 8 years, which is the maxim[um] adult sentence that could be imposed for rape by use of drugs . . . .”
In Julian R., the minor, Julian, claimed that because the record was silent, the juvenile court must have failed to consider the “ ‘facts and circumstances’ ” of his crimes, which could have resulted in setting a lower maximum term of confinement. (Julian R., supra, 47 Cal.4th at p. 498.) Our Supreme Court rejected the argument, relying on the principle of appellate review that a court is presumed to have been aware of and followed the applicable law; thus, the juvenile court was presumed to have performed its duty to consider the facts and circumstances of the individual minor’s case when it set the maximum period of confinement. (Id. at pp. 492, 498–499.)
The juvenile court in Julian R., however, did not have the benefit of box 8(b) of form JV–732. The Supreme Court observed: “It would have been better practice if the juvenile court had stated on the record that it had considered, based on the ‘facts and circumstances’ of Julian’s offenses, a confinement period less than the prison term for an adult convicted of the same offenses (§ 731, subd. (c)), and that in the exercise of its discretion it had decided against such a shorter confinement. In light of newly revised Judicial Council form JV–732 requiring the juvenile court to acknowledge its consideration of the crime’s facts and circumstances . . ., in the future a court’s exercise of its discretion will be evident.” (Julian R., supra, 47 Cal.4th at p. 499, fn. 4.)
Thus, the court contemplated that in the future, with the new form JV–732, a court’s exercise of discretion would be evident. Here, since the juvenile court failed to check box 8(b) (and nothing else in the record affirmatively demonstrates the court considered the facts and circumstances of minor’s offense in setting the maximum term of confinement), the exercise of discretion is not evident. Therefore, we will remand the matter to allow the juvenile court to consider the facts and circumstances of minor’s offense in setting the maximum term of confinement.
III. The Juvenile Court Did Not Impose an Unauthorized Sentence
Finally, minor contends the juvenile court imposed an unauthorized sentence because it failed to subtract his presentence credits from his maximum term of confinement. He argues the juvenile court failed to subtract 316 days he spent in juvenile hall from his maximum term of confinement.
In fact, the commitment order in this case provides that minor has credit for 316 days in secure custody. This comports with the law and minor’s position. We note that the provision for days of credit is item 7 of form JV–732. We are confident that DJF is familiar with both the law and the judicial council form and understands it must credit minor with 316 days.
DISPOSITION
The matter is remanded to allow the juvenile court to exercise its discretion in setting the maximum term of confinement. The order of commitment is affirmed in all other respects.








_________________________
Miller, J.


We concur:


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Kline, P.J.


_________________________
Stewart, J.