In re D.J.

Filed 8/24/06 In re D.J. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order continuing wardship of the Superior Court of Los Angeles County, Morton Rochman, Judge. Affirmed in part, vacated in part, and remanded with directions.

Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael Keller and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.

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D.J., a minor, committed count 1--first degree residential robbery in concert (Pen. Code, §§ 211, 213, subd. (a)(1)(A)) and count 2--first degree residential burglary (Pen. Code, §§ 459, 460). The court ordered him placed in camp. D.J. violated probation while at camp and the court revoked his probation and entered an order of wardship. The court also ordered him committed to the California Youth Authority for a maximum term of physical confinement of 10 years 4 months. D.J. appeals from the order of wardship (Welf. & Inst. Code, § 602).

In this case, we conclude the juvenile court did not abuse its discretion by ordering appellant committed to the California Youth Authority following a previous camp placement. The juvenile court heard the evidence of the original offenses and probation violations, and heard argument of counsel, and the court's order committing appellant to the California Youth Authority was well within the court's discretion.

We conclude the trial court prejudicially erred in violation of Welfare and Institutions Code section 731, subdivision (b), when setting appellant's maximum term of physical confinement because the record fails to demonstrate that the court set that term based on the facts and circumstances of this case.

Finally, we reject respondent's concession that multiple punishment on counts 1 and 2 violated Penal Code section 654. There was substantial evidence that appellant burgled with intent to steal, and formulated an intent to rob the homeowner only after appellant entered the residence; therefore, appellant did not merely burgle to rob and multiple punishment was proper.

CONTENTIONS[1]

Appellant contends (1) the juvenile court abused its discretion by committing appellant to the California Youth Authority (CYA); (2) the juvenile court's failure to expressly exercise its statutory discretion to impose a lesser maximum period of confinement requires remand; and (3) the juvenile court erred by failing to stay, pursuant to Penal Code section 654, additional confinement time on the burglary.

DISCUSSION

1. The Court Properly Ordered Appellant Committed to CYA.

a. Pertinent Facts.

1) The Trial Court Sustains the Allegations of the Original Petition

and Orders Appellant Placed in Camp.

The record reflects the following undisputed facts concerning the present offenses, that is, the offenses at issue in the above mentioned counts 1 and 2.[2] On September 23, 2004, appellant and two others were inside the home of Jose Salcedo and stealing property. When Salcedo found the culprits in his home, one of them, an adult male, held Salcedo at knifepoint while the others continued looking through the home and stealing property. The adult male told Salcedo that if he told anyone or called the police, Salcedo's family would be harmed. Shortly thereafter, appellant and his confederates left. The adult male left the knife on the floor.

Salcedo immediately notified sheriff's deputies. Deputies arrived and saw that Salcedo's kitchen window had been broken and the inside of his residence had been ransacked. Salcedo told deputies where appellant and his companions tended to congregate. The deputies went there and detained appellant.

A petition filed on September 27, 2004, alleged the above count 1 (residential robbery in concert) and count 2 (residential burglary). The petition also alleged that, in the commission of robbery, appellant personally used a knife pursuant to Penal Code section 12022, subdivision (b)(1).

The probation report filed on October 13, 2004, reflects that in March 2004, appellant was expelled from school due to behavioral problems. The report reflects appellant occasionally used marijuana and took medication for depression. The report also reflects as follows. Appellant described himself to the probation officer as basically a good kid. He admitted having problems in school and having been expelled from a school for disrespecting a teacher. He attended counseling but stopped because he had other things to do. Appellant's mother indicated appellant was violent and constantly lied. The probation officer recommended camp placement.

On October 15, 2004, the court, Judge Morton Rochman presiding, dismissed the Penal Code section 12022, subdivision (b)(1) enhancement allegation pursuant to Welfare and Institutions Code section 701.1. Following the adjudication of that date, the court otherwise sustained the petition. The record reflects that on October 15, 2004, Judge Rochman read the detention and probation reports (see fn. 2, ante). The court ordered appellant placed in camp.

The court ordered as probation condition number 1, that appellant obey all laws, orders of the probation officer, and any court. The court also ordered as probation condition number 2, that appellant obey all instructions and orders of parents and guardians, teachers, school officials, and staff of juvenile hall and camp. The court further ordered as probation condition number 9, that appellant attend a school program approved by the probation officer, maintain satisfactory grades, attendance, and citizenship, and promptly notify the probation officer of every absence. Finally, the court ordered as probation condition number 15, that appellant not associate with any persons whom he knew were disapproved.

2) The Trial Court Finds Appellant Violated Probation and Orders

Him Committed to CYA.

a) The Notice and Report.

In April 2005, the probation officer filed a Welfare and Institutions Code section 777 notice alleging five counts of probation violations, the evidence concerning which is discussed post. The notice was combined with a probation report which reflects as follows. After appellant arrived in camp in January 2005, appellant's behavior necessitated 12 school referrals for negative behavior such as threatening a teacher, and being argumentative, defiant, and disrespectful. Appellant also attempted to challenge other minors in class, cursed at teachers, and failed to follow instructions. During the two months he had been at Camp Resnik, appellant received 13 facility incident reports for misbehavior such as attacking and cursing at staff, fighting, gang activity, and theft.

The report also reflects as follows. Despite weekly counseling sessions and various efforts at intervention, appellant made no improvements in camp. In fact, it appeared appellant was becoming more violent and hostile to other minors and staff. The number of negative incidents that had occurred in camp and school in such a short time was unacceptable. Appellant did not appear to care about court orders or the rules and regulations of camp. He had not taken advantage of the numerous chances and opportunities he has been given at Camp Resnik.

The probation officer, in the evaluation portion of the report, indicated as follows. Appellant is a 13-year-old who has immersed himself into gang culture and did not want to change. He had made it very evident that he did not intend to comply with court orders. All attempts to counsel appellant on a daily basis in camp had met with argumentative and defiant behavior. Appellant did not show remorse and â€