In re Joseph M

Filed 5/17/06  In re Joseph M. CA3

NOT TO BE PUBLISHED

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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(San Joaquin)

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     Pursuant to a negotiated settlement, Joseph M., a minor, admitted a charge of battery with serious bodily injury (Pen. Code, §  243, subd. (d)), and an allegation he had three previously sustained offenses.  Following a contested dispositional hearing, the minor was committed to the California Youth Authority (CYA) for a maximum confinement period of five years and was ordered to register as a gang member. 

     On appeal, the minor contends the juvenile court (1) abused its discretion in making the CYA commitment, and (2) erred in ordering him to register as a gang member.  We reject the minor's first contention, but agree with him as to the second.  Consequently, we shall affirm the order of commitment, and remand the matter for further proceedings on the gang registration requirement.

DISCUSSION

I

     The minor contends the court abused its discretion in committing him to CYA because there is insufficient evidence in the record demonstrating either that the commitment will make the public safer or that he will benefit from the commitment.  Concluding that the record is to the contrary, we find no abuse of discretion.

     To justify a commitment to CYA there must be evidence in the record demonstrating probable benefit to the minor and evidence supporting a determination that less restrictive alternatives are ineffective or inappropriate.  (In re Teofilio  A. (1989) 210 Cal.App.3d 571, 576; Welf. & Inst. Code, §  734.)  The juvenile court's decision to commit a minor to CYA will be reversed on appeal only upon a showing that the court abused its discretion in making the commitment.  (In re Michael  D. (1987) 188 Cal.App.3d 1392, 1395.)

     Here the minor's record before the juvenile court at the time of the commitment was as follows:

     Present offense

     During the early morning hours of May  16, 2004, the minor (15 years old) and Anthony M. (16 years old) approached Joel Fink (49 years old) as the latter was getting into his car and asked him for a ride home.  Fink declined, saying that he was on his way to work.  The minor told Fink that he lived just around the corner, and Fink suggested they walk.  The minor struck Fink in the head and chest multiple times.  As Fink attempted to hold onto the minor, Anthony M. attacked Fink with a knife, cutting him once and stabbing at him several times.  The minor managed to get free of Fink's grasp and the two minors fled.  A short time later, deputies found the minors on a porch and arrested them. 

     Prior offenses

     On September  17, 2002, the minor was observed writing gang-related graffiti on a basketball hoop of a school in Lathrop.  The matter was closed at intake with the minor to receive counseling.  On October 30, as a result of an argument between the minor and Larry P., who was developmentally disabled and suffered health problems, the minor struck Larry P. in the head with his fist and on the back of the head, possibly with a stick.  Again, the matter was closed at intake with the minor to receive counseling. 

     On January  31 and February  17, 2003, the minor was cited for violating curfew and referred to traffic court.  On March  13, the minor and Anthony M. wrote gang-related graffiti on a railroad sign.  On April  19, the minor was stopped and search by deputies at 2:00 a.m. and found to have a folding knife wrapped with tape to hold it open.  On April 20 at 12:15 a.m., the minor was searched and found in possession of a cigar.  On April  28, the minor and two companions were drinking beer in front of a residence.  On June  13, the minor stole his grandmother's automobile, and when the minor was caught, he had a homemade pipe that smelled of marijuana.  As a result of the foregoing offenses, the minor admitted misdemeanor charges of vandalism, carrying an illegal weapon, and receiving a stolen vehicle.  He was declared a ward of the court and given a 180-day camp commitment.  The minor served more than the 180 days â€