In re Emilio C.

Filed 10/22/07 In re Emilio C. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Tulare County. Hugo J. Loza, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.)

Michele A. Douglass, 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, Carlos A. Martinez and Kelly E. LeBel, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

On July 25, 2005, a fourth amended petition was filed pursuant to Welfare and Institutions Code section 602^[1]in Tulare County alleging that appellant, Emilio C., had concealed a firearm (Pen. Code,  12025, subd. (a)(2), count one), resisted a police officer (Pen. Code,  148, subd. (a)(1), count two), provided false information to a police officer (Pen. Code,  148.9, subd. (a), count three), possessed methamphetamine (Health & Saf. Code,  11377, subd. (a), count four), committed second degree robbery (Pen. Code, 211, count five), disturbed the peace (Pen. Code,  415, count six), made criminal threats (Pen. Code,  422, count seven), and removed an electronic monitoring device ( 871, subd. (d), count eight). A gang enhancement was made as to count six pursuant to Penal Code section 186.22, subdivision (d), and a gang allegation was made as to count seven pursuant to Penal Code section 186.22, subdivision (b)(1)(B).^[2]

On August 8, 2005, Emilio was advised of, and waived, his constitutional rights and admitted counts one, two, four, and six as misdemeanors. Emilio admitted the misdemeanor gang enhancement alleged in count six. Emilio admitted count five as a felony. The remaining allegations were dismissed with the prosecutor reserving the right to comment on them during the disposition hearing.

At the disposition hearing on August 30, 2005, the juvenile court found count five to be a felony. The court found that Emilio had engaged in extensive criminal conduct and had violated rules in juvenile hall. The court noted Emilio was abusing drugs when he committed robbery and was heavily involved with a gang. The court found that the appropriate term for Emilio was the upper term of five years for the felony violation. The court added consecutive terms of four months for the gun enhancement, four months for the gang enhancement, four months for resisting arrest, and four months for disturbing the peace. Emilios total upper term commitment was set at six years four months. The court stayed its order and placed Emilio on probation upon various terms and conditions. Emilio was ordered into the probation youth facility program for 365 days.

On December 16, 2005, a petition was filed pursuant to section 777 alleging that Emilio violated the terms of his probation by failing on many occasions to obey probation youth facility rules and by not following instructions from staff. Another petition was also filed on December 16, 2005, alleging that Emilio escaped from the probation youth facility in violation of section 871, subdivision (a), a misdemeanor.

On December 27, 2005, after receiving and waiving his rights to a hearing on the truth of the allegations, Emilio admitted allegations that he failed to obey the rules of the probation youth facility and that he escaped from the facility. On January 24, 2006, the court readjudged Emilio a ward of the court and placed him back on probation with a commitment to the Youth Correction Center for 168 to 365 days.^[3]

A section 777 petition was filed on September 28, 2006, alleging Emilio violated probation by running away from home and failing to enroll in an educational program. On October 24, 2006, a new section 602, subdivision (a) petition was filed alleging that Emilio feloniously possessed a controlled substance (Health & Saf. Code,  11377, subd. (a), count one), was under the influence of a controlled substance, a misdemeanor (Health & Saf. Code,  11550, subd. (a), count two), and drove without a drivers license (Veh. Code,  12500, subd. (a), count three).

On October 25, 2006, Emilio waived his right to a hearing, admitted violating probation by failing to enroll in an educational program, and admitted counts two and three of the new section 602 petition.^[4] The juvenile court granted the prosecutions motion to dismiss count one.

The probation officers report noted that Emilio had numerous delinquency proceedings, he was on probation when he reoffended, his prior performance on probation had been unsatisfactory, and there were no mitigating factors. The probation officer stated that Emilios previous attempts to rehabilitate had been unsuccessful, he continued to exhibit delinquent behavior in the probation youth facility and an aftercare program, he places the community at danger with his conduct, and has had a heavy gang affiliation. Emilio admitted regularly using marijuana, had used methamphetamine, and consumed alcohol.

Returning Emilio to a long-term program was considered as a possibility, but deemed inappropriate because of Emilios failure to abide by the terms of an aftercare program. While in the probation youth facility, Emilio had 16 different disciplinary referrals leading to his escape from the facility. Commitment to a short-term program was considered, but deemed inappropriate because Emilio was in need of a more substantial commitment to address his problems. Commitment to a foster or group home was rejected because Emilio needed a more secure setting. Returning Emilio to his mother was rejected because he needed to be held accountable for his actions and needed assistance in making better choices.

The probation officer recommended Emilio be committed to the Department of Corrections and Rehabilitation, Juvenile Justice (Juvenile Justice). The probation officer recommended Emilio be give the maximum term of confinement in Juvenile Justice of seven years two months with custody credits of 470 days.

At the disposition hearing on January 12, 2007, Emilios counsel argued that the court should not send Emilio to Juvenile Justice but place him in a long-term program. Alternatively, counsel argued that Emilio should receive the lower term or the midterm for the felony offense. The prosecutor argued that Emilio had a substantial history of gang involvement, committed multiple offenses, and demonstrated an escalated level of violence while on probation, while in a long-term facility, and while in boot camp. The prosecutor argued it was in Emilios best interest to hold him accountable for his behavior and that he needed placement in Juvenile Justice in the interest of public safety.

The juvenile court noted it was required to consider placing Emilio in the least restrictive alternative and it had to also balance rehabilitation of Emilio with protection of the community. The court observed that Emilio had escaped from the probation youth facility, which led to his commitment to a long-term program. Emilio was on probation and in an aftercare program when he reoffended. The court stated that the only viable, less restrictive program available to Emilio was a long-term program. The court rejected this alternative because Emilio had already been through that program and proceeded to violate probation and commit new offenses afterward. The court noted Emilio had a history with drug use and was involved with a gang. The court found Emilio had exhausted all local commitments.

The court found little or no mitigating factors and at least three aggravating factors, including numerous delinquency proceedings, the fact Emilio was on probation when he reoffended, and that his performance on probation was unsatisfactory. The court found that the only term that seemed appropriate under the circumstances was the maximum term of confinement in Juvenile Justice for seven years two months. The court awarded 536 days of custody credit.

On appeal, Emilio contends the juvenile court abused its discretion in committing him to Juvenile Justice.

FACTS

Counts One and Two of Fourth Amended Petition

According to the probation report, on July 15, 2005, a sheriffs deputy on patrol saw Emilio on a bicycle. Earlier that day, the deputy had been shown Emilios picture and was aware there was an active felony arrest warrant for Emilio. When the deputy activated the lights to his patrol car, Emilio tried to evade the deputy. During a chase on foot, the deputy saw Emilio retrieve a small black object from his waistband and throw it over a gate. The deputy ordered Emilio to the ground. Emilio initially told the deputy his name was Juan, but later gave his real name. When the deputy retrieved the object Emilio had thrown, it was a .22 semiautomatic handgun with one live round in the chamber. Emilio admitted cutting off his leg monitor three days earlier.

Counts Four and Five of Fourth Amended Petition

On June 13, 2005, at 2:15 p.m., Porterville Police officers were dispatched to an apartment complex to investigate an armed robbery. The victim told an officer he and several other juveniles, including Emilio, were standing outside an apartment complex. Without provocation, Emilio struck the victim in the face with a closed fist, pushed the victim against a wall, and told the victim to give Emilio his wallet. The victim estimated there was about $20 in the wallet.

On June 26, 2005, Tulare County Sheriffs deputies received a call that Emilio was at his residence. The deputies contacted Emilios mother who told them Emilio was not inside. Another deputy saw Emilio exit through the back door of the residence. Emilio was ordered to the ground. After searching Emilio, a deputy found methamphetamine in Emilios pants pocket.

Count Six of Fourth Amended Petition

On April 30, 2005, at 12:03 p.m., sheriffs deputies were dispatched to a verbal fight. The reporting party stated that two minors, one later identified as Emilio, threatened to shoot him. When they arrived at the scene, the deputies contacted the victim, Larry Scheer, who told them the previous night, at 8:30 p.m., he saw a juvenile try to kick his dog. Scheer yelled at the juvenile to stay out of the trailer park. Two juveniles, one later identified as Emilio, came across the street seeking to fight Scheer. Scheer was able to deflect the punches from one of the juveniles. Scheer told the juveniles to leave. As Emilio and the other juvenile left, they yelled Norte and this is our block.

December 16, 2005 Petition

On December 12, 2005, Emilio tried to escape from a juvenile facility. During drill exercises, he and a coparticipant ran toward the north field behind the facility. Officers pursued and caught them.

Section 777 Petition

On September 21, 2006, Emilio violated the terms of his probation by failing to enroll in an educational program.

October 24, 2006 Petition

On October 22, 2006, at 1:18 a.m., a Porterville officer traveling behind the vehicle Emilio was driving saw Emilio throw a burning cigarette out the window. After stopping Emilio, the officer learned Emilio did not have a valid drivers license and there was an outstanding warrant for his arrest. While detaining Emilio, the officer noticed Emilio appeared to be under the influence of a controlled substance. Emilio told the officer he had only smoked bud that day and had not smoked crank since the day before. The officer took Emilio to the hospital to obtain a blood sample.

DISCUSSION

Emilio contends the juvenile court abused its discretion in committing him to Juvenile Justice. We disagree and will affirm the judgment of the juvenile court.

Under section 725.5, the juvenile court must consider the circumstances and gravity of the offense committed by the minor. The court must consider the broadest range of information in determining how best to rehabilitate a minor and to afford him or her adequate care. A juvenile courts order may be reversed on appeal only upon a showing the court abused its discretion. Appellate courts must 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 Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.)

The record must be viewed in light of the purposes of juvenile law. As described in section 202, those purposes include rehabilitation, treatment, guidance, punishment as a rehabilitative tool, and protection of the public. (In re Teofilio A. (1989) 210 Cal.App.3d 571, 575-576 (Teofilio A.).)

It is clear that a commitment to the California Youth Authority (CYA)^[5]may be made in the first instance, without previous resort to less restrictive alternatives. (In re Asean D. (1993) 14 Cal.App.4th 467, 473; In re TyroneO. (1989) 209 Cal.App.3d 145, 151.) The gravity of an offense, coupled with other relevant factors, is always a consideration. (In re Samuel B. (1986) 184 Cal.App.3d 1100, 1104, disapproved on another ground in People v. Hernandez (1988) 46 Cal.3d 194, 206, fn. 14.)

It is error for a juvenile court to fail to consider less restrictive alternatives to CYA commitment. (Teofilio A., supra, 210 Cal.App.3d at p. 577.) In Teofilio A., neither the juvenile court nor the probation report considered alternatives to CYA commitment. Though the only evidence in the probation report showed the juvenile was an unsuitable candidate for CYA, the report concluded that the juvenile acted in a criminally sophisticated manner. Teofilio A. found the probation officers conclusion was grounded on supposition and speculation, not on solid evidence. Teofilio A. concluded there was not sufficient evidence to support the juveniles commitment to CYA. (Id. at pp. 578-579.)

Here, in contrast to Teofilio A., both the juvenile court and the probation officer considered less restrictive alternatives to a commitment to Juvenile Justice. The probation officer referred to several programs in Tulare County and considered the possibility of placing Emilio in a long-term program. The juvenile court also considered placing Emilio in a long-term program, but he had already finished that program once and continued to reoffend. Emilios poor performance in other programs and while on probation, coupled with his new offenses, were all reasons supporting the juvenile courts rejection of a less restrictive alternative to a commitment to Juvenile Justice.

The juvenile court considered less restrictive alternatives to committing Emilio to Juvenile Justice. We find that in doing so, the juvenile court did not abuse its discretion.

DISPOSITION

The judgment is affirmed.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

^*Before Cornell, Acting P.J., Gomes, J., Dawson, J.

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

^[2] Emilio had a prior juvenile misdemeanor adjudication in 2003 for receiving stolen property (Pen. Code,  496, subd. (b)). In August 2004, the juvenile court dismissed an allegation without prejudice in a supplemental petition, that Emilio violated the conditions of his probation.

^[3] For the new section 871, subdivision (a) misdemeanor, the court imposed an additional consecutive term to Emilios aggregate term of four months for a total term of six years eight months.

^[4] As a possible consequence of his plea, Emilio was advised by the juvenile court that six more months could be added to the maximum term of confinement, for a total term of seven years two months.

^[5] CYA is now known as Juvenile Justice. Because this change is recent, most of the case law refers to CYA. We use the two terms interchangeably in our analysis.