Filed 6/20/17 In re Angel R. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ANGEL R., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

ANGEL R.,

Defendant and Appellant.

F073564

(Super. Ct. No. 11CEJ600917-3)

OPINION
THE COURT*
APPEAL from an order of the Superior Court of Fresno County. Timothy A. Kams, Judge.
Arthur L. Bowie, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer L. Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
The court readjudged appellant Angel R. a ward of the court (Welf. & Inst. Code, § 602) after it sustained allegations charging him with second degree robbery (Pen. Code, § 211/count 1) and a principal armed with a firearm enhancement (§ 12022, subd. (a)(1)). On appeal, appellant contends the court abused its discretion when it committed him to the New Horizons Program (NHP). We affirm.
FACTS
Background
On November 5, 2015, at approximately 7:15 a.m., as 15-year-old Serena B. walked to school in Fresno, California, appellant, who was then 17 years old, and Justin A. ran up behind her. Justin pressed a gun against the victim’s left temple, called her names, and demanded her “stuff” and her backpack. At the same time, appellant, who was unarmed, repeatedly called the victim a derogatory name and pushed her as he tried to get her backpack. Appellant took the victim’s backpack and Justin took her cell phone before they ran away together.
Later that day, officers saw both minors sitting on a curb and the minors both ran off. The officers located Justin in a residential yard and found a black revolver in a garbage bin a few feet from where he was detained. Officers also detained appellant later that day and he was eventually released to his parents. Appellant was arrested in this matter on January 6, 2016.
On January 8, 2016, the Fresno County District Attorney filed a petition that charged appellant with two counts of robbery and a principal armed with a firearm enhancement in each count.
On March 14, 2016, the district attorney dismissed one of the robbery counts and the arming enhancement attached to that count.
On March 15, 2016, following a contested adjudication hearing, the court sustained the robbery charge and the accompanying enhancement.
Appellant’s Probation Report and Disposition Hearing
Appellant’s probation report indicates he was living with his mother and six siblings when he committed the underlying offense. Appellant was in the 11th grade. Prior to his arrest in this matter, he attended Hoover High School. Out of 89 school days, appellant had 32 unexcused absences. Appellant was receiving F’s in all his classes. He was suspended on May 8, 2015, for possession of a stolen tablet and on November 12, 2015, for the instant offense.
According to appellant, he associated with Bulldog gang members while in custody but no longer associated with them while out of custody. He also reported that he used alcohol occasionally, marijuana three times a week and that he had experimented with methamphetamine.
The probation report further indicates that on November 17, 2011, appellant was adjudged a ward of the court and placed on an electronic monitor for 90 days following his adjudication of felony arson (§ 451, subd. (d)). On March 13, 2012, the court continued appellant as a ward of the court and committed him for 63 days to the pre-ad program following his adjudication of misdemeanor vandalism. On August 8, 2012, he was committed to juvenile hall for 60 days for a violation of probation. On May 16, 2013, he was committed to the substance abuse unit for a period of 180 days for another violation of probation. On January 30, 2014, another probation violation resulted in the court committing him to juvenile hall for 45 days. On April 28, 2014, appellant was placed on an electronic monitor for 30 days on another probation violation. On January 30, 2015, his probation was terminated.
On March 24, 2016, appellant was involved in a near fight with another minor at juvenile hall and placed on a redirection contract. Appellant also lost points at juvenile hall for throwing gang signs and other rule violations.
The victim of appellant’s robbery reported to the probation department that the robbery drastically changed her life: She was unable to leave her house for a month after the robbery, is always fearful when in public, and constantly looks over her shoulder.
The probation report noted that despite prior attempts to rehabilitate him, appellant’s delinquent behavior had escalated to the point of violence and the use of a firearm. The report also noted that appellant’s robbery offense qualified him for a commitment to the Department of Corrections and Rehabilitation, Division of Juvenile Justice and that a commitment there was “strongly” considered. The report, however, recommended a NHP commitment because the authoring probation officer believed appellant could still benefit from local rehabilitative services.
On April 6, 2016, the court set appellant’s maximum term of confinement at six years and committed him to the NHP at juvenile hall for 365 days. In doing so, it noted that appellant could be released earlier if he “program[med] well.”
DISCUSSION
Appellant contends the court did not adequately consider less restrictive alternatives and that ample evidence showed that prior, less restrictive alternatives that had been attempted had assisted in his rehabilitation. He further contends he would not benefit from the NHP because there was no evidence that he would receive adequate services in that program. Appellant also contends that his ability to “curb his behavior in a less restrictive setting” shows that society’s interest in safety would not be served by a one-year NHP commitment and that his commitment to the program was retribution based on the facts and circumstances of his conduct in the robbery offense. He also contends there is ample evidence, without citing any, that he could be successful in less restrictive alternatives available to him. Thus, according to appellant, the court abused its discretion when it committed him to the NHP. There is no merit to these contentions.
“The appellate court reviews a commitment decision for abuse of discretion, indulging all reasonable inferences to support the juvenile court’s decision.” (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396 (Angela M.).) In making its judgment, the court must also consider the minor’s age, the circumstances and gravity of the offense, and the minor’s previous delinquent history. (Welf. & Inst. Code, § 725.5.) Evidence must demonstrate (1) a probable benefit to the minor and (2) that less restrictive alternatives are ineffective or inappropriate. (Angela M., at p. 1396.) However, “when we assess the record in light of the purposes of the Juvenile Court Law [citation], we evaluate the exercise of discretion with punishment and public safety and protection in mind.” (In re Lorenza M. (1989) 212 Cal.App.3d 49, 58.) We will not disturb the juvenile court’s findings if substantial evidence supports them. (In re Jonathan T. (2008) 166 Cal.App.4th 474, 485 (Jonathan T.).) We find that substantial evidence supports both a probable benefit to appellant, and that less restrictive alternatives were inappropriate.
At the disposition hearing, although appellant disputed how many unexcused absences he had and that he was failing all his classes, he did not dispute that he had poor attendance, that he was not doing well in school while he was out of custody, or that he was suspended for possessing a stolen tablet. He also denied continuing to associate with gang members while he was out of custody, but admitted associating with them while in custody and he received a disciplinary notice while in custody for flashing a gang sign. Appellant had also started consuming alcohol and marijuana and had experimented with methamphetamine. Thus, it is reasonable to conclude he would benefit from a NHP commitment because he would have the opportunity to attend school and further his education and his behavior would be carefully monitored to prevent him from becoming further entrenched in gang culture. A NHP commitment would also curtail his access to alcohol and drugs and allow him to focus on his studies and his behavior with a clear mind. The court could also reasonably conclude from appellant’s out of control behavior and serious escalation of criminal activity that resulted in appellant’s latest and most serious offense that appellant would benefit from the structure and discipline inherent in a commitment to a custodial setting like the NHP at juvenile hall.
Moreover, two fundamental objectives of the Juvenile Court Law are (1) protection and safety of the public, and (2) rehabilitation of the minor through care, treatment, and guidance that is consistent with the minor’s best interests, holds him accountable for his behavior, and is appropriate under the circumstances. (Welf. & Inst. Code, § 202, subds. (a) & (b).) “This guidance may include punishment that is consistent with the rehabilitative objectives” of the Juvenile Court Law. (Welf. & Inst. Code, § 202, subd. (b).) (See In re Michael D. (1987) 188 Cal.App.3d 1392, 1396.) The court could reasonably conclude appellant likely would benefit from a yearlong commitment to a custodial setting like the NHP because it would hold him accountable for his conduct, especially since appellant would hold the key to shortening his NHP commitment through his good behavior. “There is no requirement that the court find exactly how a minor will benefit from being committed to DJJ. The court is only required to find if it is probable a minor will benefit from being committed .…” (Jonathan T., supra, 166 Cal.App.4th at p. 486.) Thus, we conclude that the record supports a finding that appellant would benefit from his NHP commitment.
Appellant’s robbery offense was particularly egregious because he acted in concert with another minor, the victim was a female two years younger than appellant, and during the robbery appellant’s cohort pressed a gun against the victim’s temple to compel her cooperation. Appellant was not personally armed, but he was an active participant in the offense, repeatedly belittling and pushing the victim and ultimately taking her backpack.
Further, despite being sanctioned with additional custody, appellant violated his probation several times and the seriousness of his criminal conduct continued to escalate until it culminated in his participation in the underlying robbery. These circumstances hardly demonstrate that he is able to “curb his behavior in a less restrictive setting” as he contends. Rather, appellant’s callous conduct in the underlying robbery offense, his escalating criminal behavior, and his disregard for court orders made him a danger to other younger, less sophisticated wards he would encounter in unsecure, noncustodial commitments and mandated that he be placed in a secure custodial setting for his own safety and that of the public. Thus, the record also supports a finding that less restrictive alternatives would be inappropriate because of the danger appellant posed to the safety of other wards and the community. The court did not abuse its discretion when it committed appellant to the NHP for one year.
DISPOSITION
The order is affirmed.