In re Adonis H.

Filed 10/20/06 In re Adonis H. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from an order of the Superior Court of Los Angeles County, Irma J. Brown, Judge. Reversed and remanded with directions in part and affirmed in part.

Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Suzann E. Papagoda, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________

By petition (Welf. & Inst. Code, § 602),[1] Adonis H. (now age 19) was charged with one count each of possession of a firearm by a minor, possession of live ammunition by a minor, and possession of marijuana.[2] (Pen. Code, §§ 12101, subds. (a)(1), (b)(1); Health & Saf. Code, § 11357, subd. (b).) The petition gave notice that Adonis was facing confinement on all sustained counts and on “all previously sustained petitions with detention time remaining.” Adonis had prior sustained petitions for possession of a firearm in a school zone, resisting arrest, and battery. The juvenile court sustained the firearm and ammunition counts, dismissed the remaining count, and ordered Adonis committed to the California Youth Authority for a maximum period not to exceed six years, eight months. Adonis appeals, contending the juvenile court abused its discretion with regard to his placement and his maximum term of confinement, and that his term for possession of ammunition is prohibited by Penal Code section 654. We provisionally reverse for reconsideration of Adonis’s maximum term of confinement, and otherwise affirm.

DISCUSSION

I.

Adonis contends remand is required because the juvenile court failed to exercise its statutory discretion to impose a term below the maximum term of confinement (§ 731, subd. (b)).[3] We agree.

Section 726 provides that a “minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court.” (§ 726, subd. (c).)

Section 731 states that a “minor committed to the Department of the Youth Authority may not be held in physical confinement for a period of time in excess of the maximum period of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court” and “also may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court, which may not exceed the maximum period of adult confinement . . . .” (§ 731, subd. (b) [Stats. 2003, ch. 4, § 1, eff. April 8, 2003, operative Jan. 1, 2004], italics added.)

In re Alex N. (2005) 132 Cal.App.4th 18, 26 explains the difference between the two statutes: “[S]ection 726 provides the general rule. A minor may not be held in confinement for a period longer than the ‘maximum period of imprisonment’ . . . to which an adult convicted of the minor’s offenses would be subjected. [S]ection 731 provides an additional rule that applies only to CYA commitments and is potentially more restrictive. The length of a minor’s confinement in CYA is restricted by both the [maximum period of imprisonment] and the ‘maximum term of physical confinement set by the court based upon the facts and circumstances’ of the minor’s offenses.” (Original emphasis omitted; italics added.) As other courts have explained, subdivision (b) of section 731 gives the juvenile court discretion, based on the facts and circumstances of the case, to fix a maximum commitment in CYA cases below the adult statutory maximum period of confinement. (In re Alex N., supra, 132 Cal.App.4th at pp. 26-27; In re Jacob J. (2005) 130 Cal.App.4th 429, 436-438; In re Carlos E. (2005) 127 Cal.App.4th 1529, 1533; In re Sean W., supra, 127 Cal.App.4th at p. 1185.)

On a silent record, we would presume the juvenile court was aware of and followed the law (In re Jacob J., supra, 130 Cal.App.4th at pp. 437-438), but this record suggests otherwise. At the conclusion of the disposition hearing, the court said it had given “long and hard consideration to Adonis’s case and all of the factors and circumstances that br[ought] him before the court” but ultimately believed Adonis could “benefit from the reformatory as well as the mental health services available through the California Youth Authority.”[4] Although the Attorney General says this statement confirms a proper exercise of discretion pursuant to section 731, we agree with Adonis’s contention that the stated factors arguably support the decision to commit him to CYA, but not the decision made “in relation to the imposition of the maximum term of confinement that it imposed.” Remand is required, not because the record is silent as Adonis contends, but because the record shows on its face -- by a reference to section 726 when the court fixed the maximum term, with no mention of section 731 --- that the court was unaware of or misunderstood its discretion. (In re Jacob J., supra, 130 Cal.App.4th at pp. 437-438.)[5]

II.

Adonis contends the imposition of separate consecutive terms for possession of the firearm and possession of the ammunition in the firearm violates Penal Code section 654.[6] For the reasons stated by Division Six of our Court in People v. Lopez, supra, 119 Cal.App.4th at pages 137-139, we agree with Adonis that “[w]here, as here, all of the ammunition is loaded into the firearm, an ‘indivisible course of conduct’ is present and [Penal Code] section 654 precludes multiple punishment.” (People v. Lopez, supra, 119 Cal.App.4th at p. 138.) To hold otherwise under the particular facts of this case would be to “‘parse[] [Adonis’s intents and] objectives too finely.’” (Ibid.) The two-month consecutive term imposed for possession of ammunition must be stayed.

III.

Adonis contends the juvenile court abused its discretion in committing him to CYA (rather than to the Dorothy Kirby Center), and that remand is required for the court to “make proper findings” regarding his educational needs. We disagree.

A.

Probation Report. The probation report stated that Adonis had his first sustained petition at age 13, admitted marijuana use from age 13, and was an active and “entrenched” Crips gang member “with drugs and weapons issues.” Based on prior sustained petitions, Adonis had been placed home on probation, in at least three different group homes and in a camp community placement --- where he assaulted and was disrespectful of his peers and the staff. Adonis had been “AWOL” from prior placements, and his grandfather (and guardian) wanted him placed where he could not get out because “every time he AWOLs he goes back to the streets and commits more crimes.” The probation officer recommended CYA as the “‘only’ program [to] assure the minor’s long term removal from the community in a secure setting, wherein he could resume his education, participate in vocational training, receive substance abuse counseling and psychological testing.”

Disposition Hearing. At the disposition hearing, defense counsel said Adonis was eligible for placement at Kirby. The court said it would like to see a treatment plan or some indication about the appropriateness of Kirby for Adonis. The court expressed “concerns about Adonis and Kirby” given that, even while going through screening and assessment, Adonis was “still having issues in [juvenile] hall, behavioral, gang-related, and not following instructions.” Adonis’s lawyer represented that Adonis had ADHD and was prescribed medications, but was not taking them, and suggested that might explain his behavioral problems. The court wanted to know whether Adonis was refusing medication, and noted “it’s not the first time” Adonis was off his medications.

Defense counsel reminded the court that when Adonis had previously been sent to CYA, CYA was unable to meet his mental health issues or special educational needs and that, after “protracted litigation,” the court had released Adonis from CYA to a group home (from which Adonis then went AWOL). In any event, counsel argued that, at Kirby, Adonis would be in a secure “lock-down” situation, with “special education“ school everyday and individual and group session mental health treatment. If placed in CYA, Adonis would (because of his age) be sent to Chino or Stockton --- one of which was unaccredited for education, the other unaccredited for mental health treatment. Since Adonis was still entitled to both services, the compliance issue would arise again.

The court disagreed, explaining that Adonis has “been home on probation. He’s been in camp. He’s been in placement. He’s been in [CYA]. He’s been back in placement, and the level of criminality has not decreased. . . . It’s the kind of thing that leads to the kind of gang situation that we worry about in the community.” The court said it had “not known Kirby to be particularly . . . successful or focus[ed] where there is gang behavior, violence, and I consider guns to be violence, even if it’s not actually used . . . . [W]e still get reports that he’s still very openly claiming to be with the . . . 118 Gangsters,” “getting into altercations at the hall with other minors, with other staff. He’s noncompliant with the program that has been put forth for him, so I just am not persuaded by the arguments that I have heard at this point. . . . I think the fact that he not only AWOLed but AWOLed and picked up another case, not just another case, but a gun case that is gang related, makes . . . the safety of the minor and the safety of the community . . . a more prominent consideration . . . than whether or not Adonis is, at this point, going to get educational needs [satisfied].” The court asked for additional information on the status of Adonis’s medication, Kirby’s assessment, and a new behavior report, and continued the matter.

Final Disposition Hearing. At the continued hearing, the court noted receipt of a fax from juvenile hall stating that Adonis was taking his prescribed medication, a behavioral report stating there had been two additional incidents involving Adonis, and information from Kirby explaining that its preferred acceptance guidelines include individuals from ages 14 to 17 who are not in need of a closed placement for longer than one year (neither of which fit Adonis). The court said it had “given a long and hard consideration to Adonis’s case and all of the factors and circumstances that bring him before the court,” including the long history described above, and that this was “not Adonis’ first case that involves conduct or behavior that is dangerous and violent . . . . . . . I don’t believe that his mental ability is so deficient that he doesn’t know the difference between right and wrong and he cannot control his actions and behavior, and . . . this case involves a gun, and then we have the reports that during this time in juvenile hall Adonis is continuing to act out, violent, assaultive towards other minors and staff as well. That is not a Kirby kind of issue for an 18-year old, in my opinion.” The court concluded that Adonis could “benefit from the reformatory as well as the mental health services available through [CYA]” and ordered him committed to CYA.

B.

Section 202, subdivision (d), provides that a juvenile court shall “consider the safety and protection of the public . . . , and the best interests of the minor in all deliberations.” Before issuing a dispositional order, the court must consider the minor’s age and delinquent history, the circumstances and gravity of the pending offense, and the possibility of other placements. (§ 725.5; In re Teofilio A. (1989) 210 Cal.App.3d 571, 576-577; In re John F. (1983) 150 Cal.App.3d 182, 185.) A CYA commitment is appropriate only if the evidence demonstrates that less restrictive alternatives would be “ineffective or inappropriate“ (In re George M. (1993) 14 Cal.App.4th 376, 379), and only if the court is “fully satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefited by the reformatory educational discipline or other treatment provided by the Youth Authority.” (§§ 734, 731.)

The record overwhelmingly confirms that the juvenile court was familiar with Adonis, his special needs, his delinquent history, and his prior placements, and that it considered all appropriate factors in selecting the proper placement for Adonis. In the end, the court simply was not satisfied that Kirby would produce results for Adonis or that Adonis would cooperate. The court balanced Adonis’s continuing criminal conduct, the increasingly dangerous and violent nature of that conduct, and his unwillingness to break gang ties, with the need for public safety, and did not abuse its discretion in concluding that a CYA commitment offered Adonis sufficient safety and services for his reformation, and was best for the protection of the public. (In re James H. (1985) 165 Cal.App.3d 911, 923.) Also, in compliance with section 1742, the court noted in the commitment order all appropriate findings regarding Adonis’s exceptional educational needs, and attached Adonis’s individualized education program (and also noted Adonis’s current need for medications).

DISPOSITION

The maximum term of confinement order is reversed, and the cause is remanded with directions to the juvenile court to reconsider the maximum term of confinement (which may not exceed six years, six months), to exercise its discretion under section 731, and to issue a new order reflecting a stay of the two-month term imposed for possession of ammunition and any other change in the maximum term of confinement. In all other respects, the order is affirmed.

NOT TO BE PUBLISHED.

VOGEL, J.

We concur:

MALLANO, Acting P.J.

ROTHSCHILD, J.

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[1] Undesignated section references are to the Welfare and Institutions Code.

[2] When Adonis (then age 17) spotted an unmarked police car, he showed surprise, grabbed his waistband, turned his bicycle around and pedaled down a breezeway, keeping one hand to his waistband. Officers gave chase and momentarily lost sight of Adonis after he turned a corner into a yard, but heard the “loud thunk of a heavy object hitting one of those big garbage cans” and then the sound of a lid “slamming shut.” Inside the yard, an officer saw Adonis facing the western-most garbage can. Adonis turned and said, “I’ve only got weed,” then threw down a plastic bag of marijuana. A loaded handgun was recovered from the western-most can.

[3] Adonis did not waive the issue by failing to raise it in the court below. (In re Sean W. (2005) 127 Cal.App.4th 1177, 1181-1182.)

[4] The court considered the fact that a previous CYA commitment had been set aside because it was “failing to meet Adonis’ educational needs” and because there was “some disagreement within [CYA] as to the level of placement within the facility that he needed”; that counsel and the court had “worked long and hard to find an appropriate placement for him”; and that his behavior in a less restrictive environment was “below standard.”

[5] Our remand should not be read as the expression of any view about the appropriate term.

[6] We reject the Attorney General’s claim that Adonis waived the Penal Code section 654 issue by failing to raise it at the time of sentencing. (People v. Lopez (2004) 119 Cal.App.4th 132, 138.)