In re Anthony M.

Filed 2/28/07 In re Anthony M. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Anthony M. appeals the juvenile courts order committing him to the former California Youth Authority (CYA).^[1] We find no abuse of discretion and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A delinquency petition filed in August 2004 alleged that appellant, who was then 15 years old, committed robbery while armed with a firearm. He admitted the robbery, and the arming allegation was dismissed.^[2] He was declared a ward of the court and placed in the Stockton home of his maternal grandparents. In August 2005, appellant was returned to his mothers home on probation. In November 2005, appellant was arrested for robbery, but no petition was filed.

In March 2006 another petition was filed alleging that appellant, who was then 17 years old, committed carjacking and robbery, and personally used a firearm during those offenses. At the contested jurisdictional hearing, the victim testified that while walking to her car from her apartment at approximately 9:00 p.m., she saw two young African-American men who wore dark, hooded sweatshirts with the hoods up crossing the street. As the victim stood by her car door, the two men came up behind her and asked for her keys. Each had a black handgun. The lighter skinned of the two men grabbed her by the arm and turned her around. He held her arm, and they put their guns in [her] face and said they wanted [her] stuff. The terrified victim handed over her purse and her keys. When the darker-skinned man was unable to immediately open the car door, the robbers became angry and yelled at the victim. The lighter-skinned man put his handgun to the victims face, grazing her lip. The men drove off with her car. In both a photo lineup and in court, the victim positively identified appellant as the darker-skinned man who robbed her.

Appellant testified on his own behalf. He claimed he was at home abiding by his court ordered curfew at the time of the carjacking, and he did not own a black gun. His lighter-skinned cousin was criminally charged with the carjacking. Appellant did not associate with his cousin, and last saw him two months before the carjacking. Appellant saw officers in front of his home one evening a month after the carjacking, and he jumped into the bushes to hide from them because he was out two minutes after his curfew and did not want to get caught.

The court found beyond a reasonable doubt that appellant committed the offenses alleged in the petition. At the dispositional hearing, the court dismissed the robbery count and committed appellant to the CYA, concluding that the carjacking and the prior robbery came within Welfare and Institutions Code section 707, subdivision (b).^[3] The court set the maximum time of confinement at six years (out of a possible 20).^[4] Appellant timely appealed.

DISCUSSION

A juvenile courts commitment order may be reversed on appeal only upon a showing the court abused its discretion. [Citation.]  We must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them.   (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.) It is not the responsibility of this court to determine what we believe would be the most appropriate placement for a minor. This is the duty of the trial court, whose determination we reverse only if it has acted beyond the scope of reason. (In re Khamphouy S. (1993) 12 Cal.App.4th 1130, 1135.)

Here, appellant contends the juvenile court abused its discretion because it committed him to the CYA, without considering less restrictive alternatives to incarceration, and there was no evidence appellant would probably benefit from CYA treatment.^[5] We disagree. The juvenile court does not necessarily abuse its discretion by ordering the most restrictive placement before other options have been tried. (John L. v. Superior Court (2004) 33 Cal.4th 158, 184-185 & fn. 10; see also In re Tyrone O. (1989) 209 Cal.App.3d 145, 151 [There is no absolute rule barring CYA commitment except as a last resort].) Because commitment to CYA cannot be based solely on retribution grounds [citation], there must continue to be evidence demonstrating (1) probable benefit to the minor and (2) that less restrictive alternatives are ineffective or inappropriate. However, these must be taken together with the Legislatures purposes in amending the Juvenile Court Law. (In re Michael D. (1987) 188 Cal.App.3d 1392, 1396.) Those amendments recognized punishment as a rehabilitative tool and shifted [the statutory] emphasis from a primarily less restrictive alternative approach oriented towards the benefit of the minor to the express protection and safety of the public [citations], where care, treatment, and guidance shall conform to the interests of public safety and protection. (Ibid.; cf. In re Aline D. (1975) 14 Cal.3d 557 [interpreting section 202 before the 1984 amendments].)

Here, the juvenile court concluded no appropriate less restrictive placements were available for appellant, and that conclusion was supported by the record. According to the probation departments dispositional report, appellant was ineligible for camp placement because he used a gun in the commission of his offenses.^[6] The supervisor of the placement unit stated that because appellant was almost 18 years old, it would be difficult to place him, and the seriousness of the current offense coupled with the previous robbery ma[de] it highly unlikely that a facility [would] accept [him]. The probation officers supervisor concurred with the recommendation of commitment to the CYA. When the court asked for comments on that recommendation during the dispositional hearing, appellants counsel responded: I would normally ask you to consider Rites of Passage, but it looks like from the probation report as though my client is not eligible.

Appellant argues that he was erroneously committed to the CYA only because no other facility would take [him] due to the seriousness of his offenses. But his reliance on In re Samuel B. (1986) 184 Cal.App.3d 1100 is misplaced. In that case, the court recognized that the gravity of the offense is always a consideration with other factors, and concluded the CYA commitment there under review was supported by substantial evidence despite the appellants lack of a prior record. (Id. at pp. 1103-1104.) Appellants record supports a similar conclusion.

The court found appellant is 17 and a half and this is the second finding of [robbery] in two years, plus the one that was dismissed for lack of evidence. (See In re Samuel B., supra, 184 Cal.App.3d at p. 1105 [camp or community placement  contraindicated due to the minors age [of 18 years] ].) The court also considered that appellant has been tried on probation in the custody of his mother and has failed to reform. Appellant is a repeat offender, and his offenses were serious and created a substantial risk to public safety. In the carjacking and the robbery, he personally used a firearm. His age, offenses, and history of delinquency were properly considered pursuant to section 725.5. Moreover, as in Samuel B., the probation report disclosed alternative dispositions that were considered and rejected. (In re Samuel B., supra, at p. 1104.) That appellant was arguably less culpable than his partner was not determinative of his placement.

Appellant also argues there was no evidence showing it was probable he would benefit from the CYA commitment, pointing to past failings of the CYA as reported in the press and documented in various studies. But the record supports the trial courts conclusion that appellant would benefit from commitment to the CYA, and that his commitment was necessary to rehabilitate appellant and protect the public.^[7] (See In re Tyrone O., supra, 209 Cal.App.3d at p. 152 [CYA commitment made with some punitive purpose is proper where consistent with the rehabilitative purposes of the Juvenile Court Law and not retributive]; In re Samuel B., supra, 184 Cal.App.3d at p. 1105 [seriousness of the offenses and minors unwillingness to face up to his responsibility for his crimes supported probation officers recommendation that Youth Authority commitment is necessary for the protection of the community ]; cf. In re Todd W. (1979) 96 Cal.App.3d 408, 413-416, 418-419 [CYA commitment inappropriate for 13-year-old minor charged with auto theft who had no history of violent or assaultive behavior and was characterized by the court as primarily a placement problem, when caseworker from minors former foster home recommended available ranch placement]; In re Michael R. (1977) 73 Cal.App.3d 327, 335-337 [court could not reasonably conclude CYA commitment was necessary for 15-year-old first offender, when there was no evidence that alternative dispositions were unavailable or inappropriate, and the probation officers evaluation of camp placement as a sufficiently restrictive, appropriate remedy was uncontroverted].)^[8]

There was substantial evidence that appellant did not qualify as a nondelinquent or marginally delinquent child [citation] who presents primarily a placement problem [citation] who would be an inappropriate case for CYA commitment. (In re Tyrone O., supra, 209 Cal.App.3d at pp. 153-154.) The juvenile court did not abuse its discretion.^[9]

DISPOSITION

The orders of the trial court are affirmed.

_________________________

Siggins, J.

We concur:

_________________________

McGuiness, P.J.

_________________________

Pollak, J.

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^[1] CYA is now known as Juvenile Justice in the Department of Corrections and Rehabilitation (Gov. Code,  12828, 12838.5). For purposes of clarity, we shall refer to it as CYA.

^[2] According to the police reports, appellant was one of four juveniles on bicycles who surrounded and robbed a pedestrian at gunpoint near an Oakland bus stop at approximately 1:00 a.m.

^[3] Subsequent statutory references are to the Welfare and Institutions Code.

^[4] The court observed the evidence of appellants repeated offenses was tempered in terms of the conversation that we are having and by the fact for all intents and purposes much [of] what he was doing on probation was salutary. He didnt seem to get into further trouble until these last couple of months. [] The victims comments about his involvement in the [robbery], him being the lesser of the two in terms of conduct, demeanor and threat made an impression on her as being the lesser of the two bad guys. The court also told appellant that his CYA commitment will give you an opportunity to finish your high school education and perhaps college and you can come out with a decent education. While appellant now claims he was doing well in school and there are less restrictive alternative placements which offer appropriate academic programs, he does not identify any such program or show that it was available to him under the circumstances.

^[5] In determining its dispositional order, the court shall consider, in addition to other relevant and material evidence, (1) the age of the minor, (2) the circumstances and gravity of the offense committed by the minor, and (3) the minors previous delinquent history. ( 725.5.) No ward of the juvenile court shall be committed to the Youth Authority 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 Youth Authority. ( 734.)

^[6] In arguing that CYA placement was inappropriate, appellant contends that it is not clear from the record whether he personally pointed his gun in the victims face, but we find any lack of clarity in this regard insignificant in light of the victims testimony, as conceded by appellant, that both robbers showed her their guns.

^[7] Appellant cites no authority to support his suggestion that the courts disposition order should be reversed because the probation department did not contact the CYA to determine if there were any programs that would probably benefit appellant.

^[8] Both Todd W. and Michael R. were also decided before the 1984 statutory amendments that shifted [the statutory] emphasis from a primarily less restrictive alternative approach oriented towards the benefit of the minor to the express protection and safety of the public [citations], where care, treatment, and guidance shall conform to the interests of public safety and protection. (In re Michael D., supra, 188 Cal.App.3d at p. 1396.)

^[9] We do not address the contention in appellants opening brief that the court improperly designated the prior robbery as a section 707, subdivision (b) offense, because appellant withdrew that issue in his reply brief.