In re Manuel B.

Filed 7/16/07 In re Manuel B. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Peter A. Warmerdam, Juvenile Court Referee.

Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.

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The court readjudged appellant, Manuel B., a ward of the court (Welf. & Inst. Code, 602)^[1] after Manuel admitted allegations charging him with second degree robbery (count 1/Pen. Code, 212.5, subd. (c)), a gang enhancement (Pen. Code, 186.22, subd. b)(1)) in that count, and violating his probation (count 8/ 777). On December 8, 2006, the court committed Manuel to the Department of Corrections and Rehabilitation, Juvenile Justice (DJJ) for a maximum term of confinement of nine years four months. On appeal, Manuel contends the court abused its discretion when it committed him to the DJJ. We will affirm.

FACTS

On November 20, 2006, at approximately 12:13 a.m., 15-year-old Manuel, 18-year-old Jesus Alanis and 18-year-old Miguel Madrigal approached Abraham Jimenez in Delano and asked if they could have his necklace as one of them reached for it. One of the males was armed with a pipe and another with a knife. Jimenez attempted to leave but the male with the pipe hit him with it on the hand and leg and took the necklace.

As the officers searched the area they were approached by Carlos Valencia who told them he witnessed the earlier assault. Valencia further stated that on November 9, 2006, he was riding his bicycle when he was approached by the same group of males. On that occasion, Alanis stepped in front of Valencias bicycle and asked him if he wanted to buy drugs. Madrigal and Manuel surrounded Valencia with Manuel brandishing a knife while pointing it in his direction. As Valencia moved his bicycle forward, Alanis brandished a shotgun and told him to give him his money. Afterwards Madrigal asked Valencia to remove his shoes. Valencia complied with their demands because he feared for his life.

The officers were also contacted by Rocky Menchaca who told them that on November 19, 2006, Alanis approached him while armed with a handgun accompanied by Manuel and Madrigal and took $20 from him.

At 4:13 a.m. the officers were called to a house on Fremont Street in response to a burglary call. The officers arrived to see four subjects run from the residence. This time the officers searched the area and detained Manuel, Alanis, and Madrigal. A search of Manuel uncovered a fixed-blade knife.

During police interviews Manuel, Alanis, and Madrigal told officers that they were members of a Norteo gang. Manuel also stated that he carried knifes on him for protection against rival gang members.

On November 21, 2006, the district attorney filed a petition charging Manuel with three counts of robbery (counts 1, 3, & 5), two counts of assault with a deadly weapon (counts 2 & 6/Pen. Code 245, subd. (a)(1)), and one count each of assault with a firearm (count 4/Pen. Code, 245. subd. (a)(2)), residential burglary (count 7/Pen. Code, 460, subd. (a)), and violation of probation (count 8). Counts 1 through 6 also alleged a gang enhancement (Pen. Code, 186.22, subd. (b)(1)) and counts 1 and 3 alleged an arming enhancement (Pen. Code, 12022.53, subd. (b)). On November 22, 2006, in exchange for Manuel admitting counts 1 and 8 and the gang enhancement in count 1, the prosecutor dismissed the remaining counts and enhancements with a Harvey waiver.^[2]

Manuels probation report indicates that he told the reporting officer that he smoked marijuana once a week for the past three months. Although he denied using other drugs, he tested positive for cocaine at least once. The report also disclosed that in April 2005, Manuel was referred to the probation department for fighting. In August 2005 he was referred to the probation department for possession of marijuana. He was subsequently ordered to work 20 hours in the Juvenile Court Work Program but failed to complete them. On November 14, 2005, Manuel was adjudged a ward and placed on probation after the court sustained allegations charging him with misdemeanor vandalism.

The report concluded that Manuel was a major safety and security concern to the community and that his behavior indicated that more extensive services were necessary. Thus, due to the circumstances of his offense and his gang affiliation, the report concluded that he would be inappropriate for a commitment to Camp Erwin Owen or the Kern Crossroads Facility. It also concluded that because of the sophistication and vicious nature of his offense and his lack of remorse, it was unlikely that local programs would have any impact on him. The report further concluded that Manuel needed to be held accountable and to serve an extended period of time at the DJJ. Finally the report noted that Manuels case was screened through the DJJ who verified that if Manuel was committed there he could participate in numerous programs including victim awareness counseling, anger management counseling, small group and individualized counseling, and he would receive support and services geared toward ending his gang affiliation. Additionally, a commitment to the DJJ would ensure the safety and protection of the community at large.

On December 8, 2006, after soliciting comments from the parties, the court committed Manuel to the DJJ.

DISCUSSION

Manuel contends the court abused its discretion in committing him to the DJJ because it did not consider the factors enumerated in section 725.5 and the record contains insufficient evidence that a DJJ commitment would benefit him or that less restrictive alternatives would be inappropriate or ineffective. We will reject these contentions.

The appellate court reviews a commitment decision for abuse of discretion, indulging all reasonable inferences to support the juvenile courts decision. [Citations.] Nonetheless, theremust be evidence in the record demonstrating both a probable benefit to the minor by a [DJJ] commitment and the inappropriateness or ineffectiveness of less restrictive alternatives. [Citations.] A [DJJ] commitment may be considered, however, without previous resort to less restrictive placements. [Citations.] (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.)

Here, Manuels probation report indicated that he was an admitted gang member who was involved with fellow gang members in three robberies and a residential burglary. During two of the robberies Manuel was armed with a knife and one of his fellow gang members was armed with a firearm or a pipe. The court could reasonably conclude from these circumstances that less restrictive alternatives to a DJJ commitment would be ineffective because the violence inherent in his criminal conduct, his gang affiliation, and his lack of remorse, made Manuel a threat to the public and other wards and required that Manuel be committed to a secure setting. It could also conclude that less restrictive secure alternatives like a juvenile hall commitment were inappropriate because Manuel needed intensive, long term counseling to deal with his criminal propensity, gang ties and substance abuse issues. Accordingly, we reject Manuels contention that the record does not contain sufficient evidence that less restrictive alternatives were ineffective or inappropriate.

Further, the probation report noted that Manuels case had been screened by the DJJ and the reporting officer had been informed that at the DJJ Manuel would be able to participate in numerous programs that would address the above issues including victim awareness counseling, anger management, and small group and individualized counseling. He also could receive support and services aimed at abolishing his gang ties. The court could also consider that Manuel would benefit from the discipline and the educational and vocational programs available at the DJJ. Thus, we also reject Manuels contention that the record does not contain sufficient evidence that he would benefit from a commitment to the DJJ. Additionally, the court could consider the safety of the public, punishment as a rehabilitative tool, and that a commitment to the DJJ would hold Manuel accountable for his conduct. ( 202.) Accordingly, we conclude that substantial evidence supports the courts commitment of Manuel to the DJJ.

Moreover, section 725.5 provides:

In determining the judgment and order to be made in any case in which the minor is found to be a person described in Section 602, 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.

In In re John F. (1983) 150 Cal.App.3d 182, this court stated,

We do not interpret . . . section 725.5 to mean the court must specifically discuss each of the enumerated factors at the time of disposition. The Legislature used the term consider in the language of that section. The court fulfills this obligation when it carefully examines and takes into account the factors stated. When the Legislature has wanted the courts to make specific findings in juvenile matters it has been explicit in so directing. However, it must be apparent from all of the surrounding circumstances that the court at least considered the appropriate factors. (Id. at p. 185, fns. omitted.)

Manuels probation report, which the court read, listed Manuels age and his previous delinquent history and discussed the circumstances and gravity of Manuels offense in addition to containing other relevant and material information. Accordingly, we also reject Manuels contention that the court did not consider the criteria in section 725.5 when it committed Manuel to the DJJ.

Further, we find Manuels comparison of his case to that of the minor in In re John F., supra, 150 Cal.App.3d 182, unavailing. In John F., the 13-year-old minor aided and abetted four other minor males in raping a 15-year-old female acquaintance. (Id. at pp. 183-184.) Thereafter, in committing the minor to the Kern Youth Facility the juvenile court stated, Well, the three out of the other four have already been committed to the Kern Youth Facility, and I dont see any reason for treating any of them any differently, lets put it that way. So Im going to follow the recommendation. (Id. at p. 184, italics added.)

John F. is easily distinguishable because in that case the courts comments unequivocally disclosed that the court did not consider the factors enumerated in section 725.5 in committing the minor to the Kern Youth Facility and that it simply committed him there because it had committed three of his coparticipants to that facility. In contrast, the record here indicates that prior to committing Manuel to the DJJ the court read the probation report which, as noted above, contained the information required by section 725.5. Further, nothing in the record indicates that the court did not consider the relevant circumstances in the report prior to making its commitment order. Thus, we conclude that the court did not abuse its discretion when it committed Manuel to the DJJ.

DISPOSITION

The judgment is affirmed.

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^* Before Vartabedian, Acting P.J., Harris, J. and Kane, J.

^[1] Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.

^[2]People v. Harvey (1979) 25 Cal.3d 754.