In re Keith T.

Filed 4/12/07 In re Keith T. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Douglas N. Gericke, Judge. Affirmed with directions.

Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Sabrina Y. Lane-Erwin, Deputy Attorney General, for Plaintiff and Respondent.

Defendant and appellant Keith T. (minor) contends that the juvenile court abused its discretion in committing him to the California Youth Authority (CYA). He also argues that the matter must be remanded to require the juvenile court to expressly declare on the record whether his offense was a felony or a misdemeanor, pursuant to Welfare and Institutions Code section 702.^[1] We agree that the matter should be remanded for the court to comply with section 702. Otherwise, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On April 25, 2005, the San Bernardino County District Attorney (district attorney) filed an amended section 602 petition alleging that minor committed attempted first degree burglary (Pen. Code, 664/459, count 1), conspiracy to commit a crime (Pen. Code, 182, subd. (a)(1), count 2), and first degree residential burglary (Pen. Code, 459, count 3). Minor admitted the allegation in count 3. The court found the allegation true and dismissed counts 1 and 2, pursuant to the district attorneys motion. At the disposition hearing, the court declared minor a ward of the court. Minor was placed at Lodgemakers.

At the time of placement, minor was experiencing problems with anger management, alcohol/substance abuse, gang awareness, and behavior in the home and community. During his stay at Lodgemakers, he made appropriate progress in his problem areas. He adjusted well to the placement and had no behavioral issues until close to the time of his graduation. His stay was extended two weeks because he was verbally disrespectful to the staff. Minor graduated from Lodgemakers on December 22, 2005, and returned to his mothers home on terms and conditions of aftercare probation.

On May 28, 2006, an elderly man (the victim) was walking down a sidewalk when minor and his cohort grabbed him from behind. One forcefully restrained the victim, while the other retrieved two wallets and $10 cash from the victims pocket. The victim heard one of the perpetrators say, get it, get it, while the other one said, I got it, I got it. Minor and his cohort then ran away. The victim sustained an injury to his shoulder from the incident. Furthermore, the victim felt nervous and afraid to go outdoors and no longer felt safe going for walks. Minor was soon caught with a $10 bill in his pocket. He admitted that he was present during the robbery and that the $10 bill belonged to the victim. However, he claimed that his cohort grabbed the victim, took the money from the victim, and gave it to him.

On May 31, 2006, the district attorney filed a section 602 petition (the current petition) alleging that minor committed second degree robbery (Pen. Code, 211, count 1) and receiving stolen property (Pen. Code, 496, subd. (a), count 2). At the detention hearing, minors counsel informed the court that the parties reached an agreement that minor would admit a third count of felony grand theft person (Pen. Code, 487, subd. (c)), in exchange for the dismissal of counts 1 and 2. The district attorney confirmed, and moved to amend the petition to add the count alleging grand theft from the person of another as a felony. (Pen. Code, 487, subd. (c).) The court accordingly amended the petition by interlineation. Minor admitted the allegation.

The probation officer recommended that the court commit minor to CYA based on his age and the nature of the current offense. At the time of the recommendation, minor was approximately one month short of his 18th birthday. Based on his offense and age, CYA would maintain jurisdiction until he was 21 years old. The probation officer felt that minor was a danger to the community since he associated with gangs and was easily influenced to commit crimes. The probation officer specifically noted minors criminal history, which began when he was 11 years old, and was concerned that his crimes were increasing in severity. The court followed the recommendation and sentenced defendant to CYA, setting the maximum period of confinement at six years eight months.

ANALYSIS

I. The Court Properly Committed Minor to CYA

Minor contends the juvenile court abused its discretion in committing him to CYA because there was no showing of probable benefit to him or that a less restrictive placement would not be effective. We disagree.

A. Background

At a contested disposition hearing, Dr. Marjorie Graham-Howard, a clinical psychologist who assessed minor, testified on his behalf. She testified that minor needed to be in a secure setting, where he could focus on getting his high school diploma and figure out why he always returned to his negative peer affiliations. She agreed that CYA was a viable option. However, she felt that placement in CYA may inadvertently reinforce minors negative behavior, since he would be associating with gang-affiliated adolescents there. She assessed him at a high risk of reoffending.

After hearing testimony and arguments from counsel, the court decided that the probation officers recommendation of a commitment to CYA would best meet the needs of minor and the community. The court noted that minor committed an extremely serious offense, since he chose an elderly victim, physically accosted him, robbed him, and left him traumatized. The court found that minors criminal activities were escalating in seriousness and violence. Furthermore, minor committed the current offense within approximately three months of his graduation from Lodgemakers, while he was on aftercare probation.^[2] The court did consider that minor graduated from Lodgemakers, although not without incident.

The court was aware that minor had been accepted by some other placements, but noted that none of them were secure programs. Since minor had demonstrated violence and a willingness to victimize vulnerable elders, the court determined that the next rehabilitative effort should be made in a more secure setting. The court concluded that CYA was appropriate, noting that minor could participate in gang intervention classes, anger management classes, substance abuse counseling, victim awareness classes, and individual and group counseling, as well as earn his high school diploma and possibly obtain vocational training.

B. Standard of Review

We review a commitment decision only for abuse of discretion, and indulge all reasonable inferences to support the decision of the juvenile court. (In re Asean D. (1993) 14 Cal.App.4th 467, 473; In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.) An appellate court will not lightly substitute its decision for that of the juvenile court, and the decision of the court will not be disturbed unless unsupported by substantial evidence. (Ibid.) Lastly, the 1984 amendments to the juvenile court law reflected an increased emphasis on punishment as a tool of rehabilitation, and a concern for the protection and safety of the public. (Id. at p. 1396.) Since retribution must not be the sole reason for punishment, there must be evidence demonstrating probable benefit to the minor and the inappropriateness or ineffectiveness of the less restrictive alternatives. (Ibid.)

C. There Was No Abuse of Discretion

Based on the record before us, we conclude that the courts decision to commit minor to CYA was not an abuse of discretion. As the record demonstrates, the juvenile court engaged in a thoughtful analysis of minors needs. The court properly considered the seriousness of minors most recent offense, which reflected a continuing and escalating pattern of violence. The probation officers report showed that minor was 11 years old when he was initially declared a ward of the court. After committing second degree commercial burglary (Pen. Code, 459), he was placed in his mothers custody and put on probation. Four years later, he admitted to committing first degree residential burglary. (Pen. Code, 459.) Although he was placed in, and graduated from, Lodgemakers after that offense, his time there clearly had no rehabilitative effect on him. Minor committed the current offense within a few months of being released from Lodgemakers. The probation officers report further indicated that minor had six juvenile citations, from 2001 to 2004, for charges such as possession of tobacco or a cigar, truancy, disturbing the peace, and loitering after curfew.

Minor claims that the court failed to adequately consider the fact that less restrictive placements were available. However, the court expressly stated that it was aware minor had been accepted by a few other placements. The court considered those placements, but rejected them because they were not secure. The court determined that minors next placement needed to be in a more secure setting since his latest offense involved victimizing a vulnerable, elderly man. Even minors own witness, Dr. Graham-Howard, opined that minor needed a secure setting because he was at serious risk of reoffending. She even agreed that CYA was a viable option.

Minor further contends that the court failed to adequately consider his best interests. We disagree. The court determined that CYA would best meet minors needs, specifically in the areas of gang intervention, anger management, substance abuse, victim awareness, counseling, and education. CYA could also provide minor with the possibility of participating in a forestry program, which the court commended.

In sum, we find no abuse of discretion in the juvenile courts decision to commit minor to CYA.

II. The Matter Must Be Remanded for the Juvenile Court to Declare Whether the Offense Was a Misdemeanor or a Felony

Minor admitted the allegation that he committed the felony offense of grand theft from the person of another. (Pen. Code, 487, subd. (c).) A violation of Penal Code section 487, subdivision (c), is punishable as a felony or a misdemeanor. (Pen. Code, 489, subd. (b).) Minor now contends that the juvenile court failed to expressly declare whether the offense of grand theft was a felony or a misdemeanor, and, therefore, the matter must be remanded. The People concede that the court did not expressly designate the offense as a felony. However, the People assert that any error was harmless since the record establishes that the court was aware of its discretion to designate the offense as a misdemeanor. We agree with minor.

Section 702 mandates that [i]f the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony. (Italics added.) The language of section 702 is unambiguous. It requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemeanor in the case of an adult. (In re Manzy W. (1997) 14 Cal.4th 1199, 1204 (Manzy W.).) Section 702 means what it says and mandates the juvenile court to declare the offense a felony or misdemeanor. (In re Kenneth H. (1983) 33 Cal.3d 616, 619; see also In re Ricky H. (1981) 30 Cal.3d 176, 191.) The purpose of the statute is not solely administrative. (Manzy W., supra,at p. 1207.) As Kenneth H. and Ricky H. acknowledge, the requirement that the juvenile court declare whether a so-called wobbler offense was a misdemeanor or felony also serves the purpose of ensuring that the juvenile court is aware of, and actually exercises, its discretion under [] section 702. (Ibid.) Furthermore, neither the pleading, the minute order, nor the setting of a felony-level period of physical confinement may substitute for a declaration by the juvenile court as to whether an offense is a misdemeanor or felony. [Citation.] (Id. at p. 1208.)

Here, the People concede that the court did not explicitly comply with the requirement of section 702. Nonetheless, the People assert that minor admitted he committed felony grand theft of a person. The People also point out that the court twice referred to the offense as a felony, in the context of noting that it was not a section 707, subdivision (b), offense, and in ordering restitution. Regardless, nothing in this record demonstrates that the juvenile court actually declared the offense to be a felony, or that the court was aware of its discretion that it could sentence the offense as a misdemeanor rather than a felony. The court appears to have referred to the offense as a felony simply because the People alleged it as a felony. [F]ailure to make the mandatory express declaration requires remand of this matter for strict compliance with [] section 702. (Manzy W., supra, 14 Cal.4th at p. 1204.)

The People claim that any error was harmless because the record as a whole establishes the court was aware of its discretion. The People further assert that [t]he court is not required to articulate the basis for its choice, citing In re Jacob M. (1989) 210 Cal.App.3d 1178. First, as discussed above, the record does not reflect that the court was aware of its discretion. Second, In re Jacob M. is inapposite since it held that the juvenile court is not required to state the reasons for the courts choice of felony over misdemeanor in a wobbler case. (Id. at p. 1180.) The court here never made such a choice.

Therefore, the matter must be remanded for the juvenile court to comply with section 702 and for possible recalculation of the maximum period of confinement. (Manzy W., supra, 14 Cal.4th at p. 1211.)

DISPOSITION

The matter is remanded to the juvenile court for an express declaration pursuant to section 702 and possible recalculation of the maximum period of physical confinement. Otherwise, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

J.

We concur:

RAMIREZ

P.J.

KING

J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] The court mistakenly stated that the current offense occurred within three months after his graduation from Lodgemakers. Minor committed the current offense approximately five months after his graduation.