In re D.S.

Filed 7/6/07 In re D.S. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

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

Teri A. Kanefield, 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, Stan Cross and Susan Rankin Bunting, Deputy Attorneys General, for Plaintiff and Respondent.

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Minor appellant D.S. contends the juvenile court abused its discretion by committing him to the Department of Corrections and Rehabilitation, Juvenile Justice (Juvenile Justice)^[1]after he admitted committing residential burglary, committing grand theft from a person, knowing a co-offender in both offenses was armed with a firearm, and violating probation. (Pen. Code,  460, subd. (a), 487, subd. (c), 12022, subd. (d).^[2]) We conclude the juvenile court acted within its discretion and therefore affirm the disposition.

BACKGROUND

According to D.S.s probation report, Ridgecrest police officers were dispatched to the apartment of Kyle Yates at 11:35 p.m. A neighbor explained she heard verbal disturbances from the apartment, including someone stating, Purses and wallets or Ill fucking shoot somebody!

The officers learned that 17-year-old D.S., along with adults Curtis Staples and Maurice Moore, entered Yatess apartment and bedroom where he and several guests were located. Yates recognized Stapless voice, even though he was wearing a ski mask, after he waved a handgun and ordered everyone into the living room. D.S. and Moore were armed with a taser and a baseball bat.

Staples demanded marijuana from Yates and threatened to shoot somebody after searching the apartment. Staples next demanded that everybody give him their wallets, purses, and cell phones, and took $20 from Yatess wallet. While Staples gathered the items, D.S. tased one of the victims. Additional victims present during the intrusion confirmed Yatess description of the events.

The next day, police officers received permission from D.S.s grandfather to search his residence, where the officers found D.S. hiding in his room. In the backyard of the home, officers discovered a plastic shopping bag containing two cell phones that matched the description of the ones taken from the victims and jewelry. They also discovered an aluminum baseball bat.

D.S. was taken into custody without incident. Although at first he denied involvement in the events from the day before, he eventually told officers that he, Staples, and Moore went to Yatess residence to purchase marijuana which led to an altercation when the victims tried to sell them bullshit weed. D.S. admitted he

and his cohorts punked them for money and the phones. D.S. told the officers Staples flashed the handle to his handgun, but never pulled it out.

Already a ward of the court, the Kern County District Attorney filed a sixth supplemental juvenile wardship petition alleging D.S. committed robbery with a firearm enhancement (count 1;  212.5, subd. (c), 12022, subd. (d)), residential burglary with a firearm enhancement (count 2;  460, subd. (a), 12022, subd. (d)), grand theft from a person with a firearm enhancement (count 3;  487, subd. (c), 12022, subd. (d)), two counts of robbery with a firearm enhancement (counts 4 & 5;  212.5, subd. (c), 12022, subd. (d)), possession of cocaine base for sale (count 6; Health & Saf. Code,  11351.5), possession of stolen property (count 7,  496, subd. (a)), assault (count 8;  243, subd. (a)), resisting an officer (count 9;  148, subd. (a)(1)), being under the influence of a controlled substance (count 10; Health & Saf. Code,  11550, subd. (a)), and violated probation (count 11; Welf. & Inst. Code,  777.) D.S. admitted committing burglary and grand theft under counts 2 and 3 with the firearm enhancements and violating probation under count 11, and the remaining counts and enhancements were dismissed. Against the recommendation of the probation officer, the prosecution, and defense counsel, the juvenile court committed D.S. to the Juvenile Justice under an 11-year maximum period of confinement.

DISCUSSION

D.S. contends the juvenile court abused its discretion by committing him to the Juvenile Justice instead of a local boot camp facility. D.S. argues the record lacks substantial evidence the commitment imposed would be of probable benefit to him or that less restrictive alternatives were ineffective or inappropriate.

A juvenile courts commitment decision may be reversed on appeal only upon a showing the court abused its discretion. (In re Todd W. (1979) 96 Cal.App.3d 408, 416.) In determining whether the juvenile court abused its discretion, the commitment must conform to the general purposes of the juvenile court law. (Welf. & Inst. Code,  202; In re Todd W., supra, 96 Cal.App.3d at p. 417.) As described in Welfare and Institutions Code section 202, those purposes include rehabilitation, treatment, guidance, punishment as a rehabilitative tool, and protection from the public. The disposition must also evidence probable benefit to the minor and that less restrictive alternatives would be ineffective or inappropriate. (Welf. & Inst. Code,  202, subd. (e); In re Teofilio A. (1989) 210 Cal.App.3d 571, 576.) The juvenile court must also consider the minors age, the circumstances and gravity of the offense, and the minors history of delinquency. (Welf. & Inst. Code,  725.5.)

While the juvenile court law contemplates a progressively restrictive and punitive series of dispositions, there is no absolute rule that the court may not impose a particular commitment until less restrictive placements have actually been attempted. (In re Teofilio A., supra, 210 Cal.App.3dat p. 577.) A commitment to the Juvenile Justice may be made in the first instance without previously placing the minor in a less restrictive placement. (In re Eddie M. (2003) 31 Cal.4th 480, 507; In re Asean D. (1993) 14 Cal.App.4th 467, 473; In re Tyrone O. (1989) 209 Cal.App.3d 145, 151.) [I]f there is evidence in the record to show a consideration of less restrictive placements was before the court, the fact the judge does not state on the record his consideration of those alternatives and reasons for rejecting them will not result in a reversal. (In re Teofilio A., supra, 210 Cal.App.3dat p. 577.) In reviewing whether the juvenile court abused its discretion, we 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 Lorenza M. (1989) 212 Cal.App.3d 49, 53.)

Applying these principles, we conclude the juvenile court acted within its discretion by placing D.S. at the Juvenile Justice.

The juvenile court reviewed D.S.s probation records, which indicated a history of delinquency dating back to March 2001 when D.S. was first placed on probation and ordered to complete a Juvenile Court Work Program for committing petty theft. ( 488.) In September 2001, he was found in possession of an explosive device and his probation and work hours were increased. ( 12303, 17.) In April 2002, the juvenile court found D.S. possessed live ammunition and extended his probation until his 18th birthday, doubled his work hours to 80, and sent him to the Ridgecrest Court Day School. ( 12101, subd. (b).) In a third supplemental petition, the juvenile court placed D.S. in juvenile hall for 20 days for receiving stolen property in September 2002. ( 496, subd. (a).) In February 2005, the juvenile court found D.S. unlawfully caused a fire of property and again ordered that he complete 80 hours of work service and attend the Ridgecrest Court Day School. ( 452, subd. (d).) An October 2006 petition alleged D.S. violated the terms of his probation, but was subsequently dismissed by the juvenile court under the plea agreement for the current petition. (Welf. & Inst. Code,  777, subd. (a)(2).) The probation report prepared November 13, 2006, further indicated D.S. had not attended school since completing the court day school in August 2005.

Although the prosecutor, defense counsel, and probation officer all recommended placing D.S. at the Kern County Crossroads Facility, the juvenile court reasoned:

Well, as [the defense] and [the prosecution] both point out, this young man has not had a commitment to any of the institutional programs that we have available. That apparently is the only factor that indicates something other than the [Juvenile Justice] should be considered. The offenses were discussing [are] extremely serious in nature; had a great propensity to result in even more tragic consequences than what we have. I know Ms. Reed has gone to bat for this young man on prior occasions perhaps explaining why he has not yet found his way to [Boot] Camp or Crossroads.

Well, Ive given it as much thought as I can to try to figure out some way that the Probation Departments recommendation is the appropriate one. And based on the offense that were discussing, I dont think I can come to that conclusion.

Defense counsel argued that the objective of rehabilitation would require the Court to use the least restrictive amount of consequences that are consistent with the minors rehabilitation; that were not here for retribution. She admitted that D.S. committed a grave offense, but emphasized that no one was injured and there was not a substantial amount of real loss. She also highlighted that D.S. had been fully compliant with law enforcement from the time that he was contacted until now.

The juvenile court repeated that it tried to give D.S. the benefit of the doubt, but after again reviewing the probation reports and circumstances of the offense, refused to agree to send D.S. to a local placement program and proceeded to order D.S. to the Juvenile Justice.

In contrast to Teofilio A., where neither the juvenile court nor probation considered alternatives to placing the minor with the CYA, both the juvenile court and probation here expressly considered alternatives less restrictive than the Juvenile Justice. (Teofilio A., supra, 210 Cal.App.3d at p. 577.) Although they did not agree, the juvenile courts conclusion that D.S. would benefit from a Juvenile Justice commitment and that a less restrictive alternative would be ineffective is supported by the record. The evaluating probation officer reported that D.S. chooses to be a follower, but performed well when given appropriate guidance, structure and supervision. Moreover, D.S.s history of delinquency establish that he failed to reform despite multiple grants of probation which included attendance at the Ridgecrest Juvenile Court Day School and commitment to Juvenile Hall. Not only has D.S. continued to reoffend, but his offenses have become increasingly serious and violent. Given D.S.s follower personality, his inability to control his behavior, and the facts and circumstances of his most recent offense, the juvenile court reasonably concluded D.S. would benefit from the structured and supervised environment at the Juvenile Justice.

DISPOSITION

The judgment is affirmed.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

^*Before Vartabedian, Acting P.J., Wiseman, J., and Dawson, J.

^[1] The California Youth Authority (CYA) was renamed Juvenile Justice effective July 1, 2005. (Gov. Code, 12838, subd. (a), 12838.3.)

^[2] Further statutory references are to the Penal Code unless otherwise stated.