In re Brandon L.

Filed 9/19/06 In re Brandon L. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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On October 2, 2003, Brandon L., a minor and ward of the Sonoma County Juvenile Court based upon several previously sustained petitions, admitted charges of battery with serious bodily injury (Pen. Code, § 243, subd. (d)) and witness intimidation (Pen. Code, § 136.1, subd. (a)(1)). On October 22, 2003, in another petition, the minor admitted a charge of conspiracy to commit assault with a deadly weapon. (Pen. Code, §§ 182, 245, subd. (a)(1).)

On December 24, 2003, the minor was committed to the California Youth Authority (CYA) for a 90-day diagnostic evaluation. On May 11, 2004, following the minor's return from CYA, his case was transferred for disposition to Sacramento County. On October 7, 2004, after a contested disposition hearing, the minor was committed to CYA for a maximum confinement period of six years.

On appeal, the minor contends that (1) the court abused its discretion in committing him to CYA; (2) remand is required for the court to exercise its discretion whether to impose less than the maximum period of confinement; and (3) the court miscalculated his maximum period of confinement. We reject the minor's first contention, but agree with him as to the second and third.

Discussion

I

The minor contends that the juvenile court abused its discretion in committing him to CYA because there were less restrictive alternatives available that would meet both his and society's need to be protected. We are not persuaded.

To justify a commitment to CYA there must be evidence in the record demonstrating probable benefit to the minor and evidence supporting a determination that less restrictive alternatives are ineffective or inappropriate. (In re Teofilio A. (1989) 210 Cal.App.3d 571, 576; Welf. & Inst. Code, § 734.)^[1] The juvenile court's decision to commit a minor to CYA will be reversed on appeal only upon a showing that the court abused its discretion in making the commitment. (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.)

At the time of the minor's commitment, he was nearly 18 years of age and his record before the juvenile court showed that from March 2002 through October 2003, he had eight sustained petitions (§ 602) and two sustained petitions for violations of probation (§ 777, subd. (a)). His admitted offenses included possessing a locking blade knife on school property, driving without a valid driver's license, being a runaway, unlawfully retaining lost property, committing a battery with serious bodily injury, escaping from probation camp, committing a battery, again escaping from probation camp, and the latest two petitions, in which he admitted offenses of intimidating a witness, committing a battery with serious bodily injury, and conspiring to commit assault with a deadly weapon.

As to these last two petitions, which resulted in the minor's CYA commitment, the facts were as follows:

1. In August 2003, the minor and two companions demanded candy from Ernesto D., while the latter was working at a Chevron gas station. When Ernesto refused, one of the minors warned him he was in "Northern Cali"; they then left. About 11:30 p.m. the same night, Ernesto and Luis C. were outside the gas station when the minor and five companions surrounded them. In a gang attack, Ernesto was punched, kicked, and hit with a golf club and a baseball bat; Luis was struck in the back with the golf club. The attack ended when a vehicle pulled into the station. This was the factual basis for the charge of conspiracy to commit assault with a deadly weapon.

2. On September 5, 2003, Daniel B. was walking home from school with his sister when the minor confronted Daniel, accusing him of "talking shit" about the minor. The minor challenged Daniel to a fight, however, Daniel's sister intervened. The minor told Daniel that if he heard that Daniel was talking "shit"? about him again, "me and my home boys will beat your ass."? On September 7, 2003, Daniel, who was 15, and Jesse C., who was 14, were walking in a park when they saw the minor and his companion, Chase L. Fearing a confrontation, Daniel and Jesse split up. However, the minor and Chase managed to confront Jesse. Jesse said that he did not want to fight, nevertheless the minor struck Jesse in the back of the head, knocking him to the ground. When Jesse looked up the minor pointed a gun at him and said, "I'm gonna smoke this fool."? Chase told the minor not to do so. Because of his injuries, Jesse did not remember how he had gotten to his home or to the hospital. This was the factual basis for the charge of battery with serious bodily injury.

3. On the evening of September 7, 2003, an officer was interviewing Daniel at Daniel's home when the minor telephoned. The officer posed as Daniel and listened while the minor boasted of assaulting Jesse, stating, "I should have smoked [Jesse]." The minor threatened to harm Daniel if he contacted the police. When told he was speaking with a police officer, the minor hung up the phone. This was the factual basis for the charge of witness intimidation.

Before the minor was sent to CYA for a diagnostic evaluation, he was examined by Drs. Laura Doty and Mark Taradis. The minor admitted to Dr. Doty that he had "set many fires as a young boy" and that he had "a history of animal abuse[,] including killing a cat by stoning it and setting fire to his girlfriend's dog."?

After reviewing the minor's history, the Sonoma County Probation Department, the CYA Inter-Disciplinary Team and the Sacramento County Probation Department recommended that the minor be committed to CYA. To the contrary, Drs. Doty and Taradis concluded that the minor's aggressive behavior could be effectively treated in a residential facility specializing in adolescent behavioral problems.

As the minor notes, he had an extremely difficult childhood. His mother and biological father were drug addicts; his mother had left him with strangers. The minor told his mother that he had been sexually molested when he was young. During the minor's early years, his mother admitted to being violent with him--"spanking had turned into hitting."? The minor also had problems in school. He was academically far behind the other children and he had speech, reading, auditory processing and memory difficulties.

In spite of the minor's difficult childhood and his criminal orientation, his behavior changed considerably for the better after he was sent to CYA for the diagnostic evaluation. He renounced gang affiliation, he was not aggressive with staff, he qualified for work assignments, he generally had no behavioral problems with other wards, and he got along well with the staff.

After the minor was returned to juvenile hall from the diagnostic evaluation, he was classified as an escape risk and a "Norteño gang member"?; however, he earned placement on "honor status and participate[d] in both unit and school programs." It was further noted by staff that the minor "interacts well with other residents and complies with staff instruction."?

In anticipation of the disposition hearing, counsel for the minor retained Dr. Mark Paradis to evaluate the minor. Dr. Paradis, like Drs. Doty and Taradis, recommended a residential treatment facility.

During argument to the court, the minor's counsel pointed out that the concerns of the probation department and CYA about protection of the public due to the minor's escalating assaultive behavior, coupled with the treatment guidelines identified by CYA, could all be met by committing the minor to the Sacramento County Boys Ranch, followed by a year commitment to the county jail's HALT program, where he would receive additional schooling, as well as vocational and psychological counseling.

While the court recognized the minor's difficult upbringing and that he "did very well" while being evaluated at CYA, the court was extremely concerned that the minor's fire setting, his animal abuse, and his assaultiveness were indicators of deeper problems. The court found "shocking" the assault at the service station, which easily could have resulted in the death of the victim. The court expressly rejected the Boys Ranch followed by a commitment to the HALT program in county jail because these programs were "designed for short-term intervention" and the minor needed long-term care.

In essence, the minor argues that the court abused its discretion by failing to accord proper weight to his behavioral improvement, which was shown by his conduct at CYA and in juvenile hall, when it rejected his proposed disposition. We disagree.

The court's analysis was lengthy and well thought out. The court considered the minor's entire record, specifically taking into account that he had had a "very, very tough life" and that he had done "