Opinion
A115030
4-19-2007
In re Brandon W., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. BRANDON W., Defendant and Appellant.
NOT TO BE PUBLISHED
Appellant Brandon W., a minor, contends that the juvenile court abused its discretion by committing him to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ, formerly, the California Youth Authority, or the CYA) and that it erred in its calculation of his presentence custody credits. We affirm the lower courts judgment regarding appellants commitment, and modify the calculation of his custody credits.
BACKGROUND
On February 13, 2003, appellant, 13 years old at the time, was charged in Contra Costa County with felony first degree residential burglary (Pen. Code, §§ 459/460, subd. (a)) in a juvenile petition under Welfare and Institutions Code section 602. The Pittsburg Police arrested appellant after observing him leaving the victims home carrying two bags full of stolen property. After his arrest, appellant admitted to three other residential burglaries in the same neighborhood. On March 10, 2003, the petition was sustained, and appellant was adjudged a ward of the court, placed on probation, ordered to serve 45 days on Juvenile Electronic Monitoring (JEM), complete 15 days of work detail, pay restitution, and complete a theft awareness class. Less than one month after being adjudged a ward, appellant was found to have violated JEM by cutting class, and the court added 15 days to his 45-day JEM commitment. Just two days later, he was again found in violation of his JEM commitment for having continued to cut class, and the court sent him to juvenile hall for the balance of the commitment (17 days).
Mere weeks after his release from juvenile hall, appellant was arrested again by Pittsburg Police for another residential burglary. The police had observed him with another juvenile near the victims home carrying large duffle bags full of property, and witnesses identified both juveniles. On June 10, 2003, appellant was charged with another count of felony first degree residential burglary (Pen. Code, §§ 459/460, subd. (a)). Prior to the dispositional hearing on this charge, the Contra Costa County District Attorney filed a second supplemental petition charging appellant with one count of second degree robbery (Pen. Code, §§ 211/212.5, subd. (c)). This new charge resulted from an incident in which appellant and two other juveniles confronted and punched a victim who was riding his bicycle, and then stole the victims bicycle and backpack. On August 1, 2003, subsequent to pleading no contest to both charges, appellant was continued as a ward of the court, placed in a nine-month program at Orrin Allen Youth Rehabilitation Facility (OAYRF), ordered to pay restitution, and ordered to receive counseling.
Shortly after appellant arrived at OAYRF in August 2003, he began to display unruly behavior and was subsequently sent to juvenile hall on two occasions. On November 3, 2003, he admitted to a probation violation (Welf. & Inst. Code, § 777) and 15 days were added to his prior 270-day disposition. On March 15, 2004, appellant admitted another probation violation (id. § 777) in connection with an incident in which he and three other wards threatened to kill two staff members while being transported from the ranch to juvenile hall. He was continued as a ward of the court, received a stayed commitment to the DJJ and was ordered into placement at Karis House in Visalia, where he arrived in July 2004.
While appellant was at Karis House, his family moved to Modesto, and Stanislaus County accepted his transfer from Contra Costa County. He escaped his placement at Karis House in September 2004 and a warrant was issued for his arrest. With the assistance of his father, appellant turned himself in, was sent to juvenile hall, and was placed in an ankle monitor upon release. On March 28, 2005, in an interview at the juvenile hall, he admitted to smoking marijuana every other day, but claimed to have not smoked since November 2004.
On June 28, 2005, in Stanislaus County Juvenile Court, appellant was charged with one count of misdemeanor battery on a transit employee or passenger (Pen. Code, § 243.3), one count of misdemeanor battery on a public transportation providers property or vehicle (Pen. Code, § 243.35), and one count of misdemeanor disturbing the peace of school by fighting (Pen. Code, § 415.5, subd. (a)(1)). On September 22, 2005, he was charged in Stanislaus County with six counts of felony assault likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) and one count of felony conspiracy to commit battery (Pen. Code, §§ 182/242). These charges arose from incidents on July 15 and 18, 2005, in which appellant, his younger brother, and three other minors assaulted a number of male students at a bus stop. A warrant was issued for his arrest on the same day. Appellant was arrested on November 28, 2005, and has been in custody ever since.
The June 28, 2005 petition was subsequently amended on December 9, 2005, removing the charge under Penal Code section 415.5, subdivision (a)(1), and adding one count of the misdemeanor use of offensive words in public (Pen. Code, § 415, subd. (3)). On December 16, 2005, appellant admitted to one count of felony assault and one count of misdemeanor battery on a transit employee, and the remaining charges from the September 22 petition and December 9 amended petition were dismissed pursuant to Harvey waivers. (See People v. Harvey (1979) 25 Cal.3d 754.)
On December 27, 2005, appellant was screened by the OAYRF and "was found unacceptable for a ranch program based on a history of failure." On December 28, 2005, he was screened by the Intake Division of the DJJ. The DJJ determined that he be detained for 18 months, during which time he was to attend school toward his high school diploma or GED, attend victim awareness classes, gang awareness classes, substance abuse treatment, and general counseling.
In a January 3, 2006 Report and Recommendation to the Juvenile Court of Contra Costa County, the probation department recommended that appellant be continued as a ward of the court with no termination date, and that, because he had failed to reform despite the efforts of the court in placing him on probation and returning him to his parents care, the court impose the stayed commitment to the DJJ as ordered on March 29, 2004, and that the court commit him to the DJJ for an appropriate period of time. The report stated:
"The minors delinquent lifestyle needs to change and hopefully this will occur before he reaches adulthood. If this last attempt fails, it is feared that the minor will become more involved in a life of criminal behavior. [¶] Brandon needs to be held accountable for his actions and desperately needs help in breaking free of his criminal lifestyle. He is a serious threat to the community due to his increasingly delinquent and assaultive behavior. The need for a secure and structured setting is necessary for Brandon to get the treatment he needs, while protecting the community from his continued violent delinquent behavior. [¶] The [DJJ] will provide Brandon with structure, stability, and therapeutic intervention. It will provide him the counseling he needs in areas of anger management, impulse control, substance abuse, and gang involvement. Additionally he will learn the importance of following rules, respecting authority, and achieving an education. [¶] Brandon has been considered for both placement and the O.A.Y.R.F. but because of his escalating violent behavior and his threat to the community this deputy does not consider him appropriate. Probation firmly believes that the most appropriate course of action to address the minors behavioral issues is the [DJJ]." (Italics added.)
On January 10, 2006, appellant was charged in Contra Costa County Juvenile Court with one count of misdemeanor false personation (Pen. Code, § 529), one count of misdemeanor giving false information to a peace officer (Pen. Code, § 148.9, subd. (a)), and two counts of misdemeanor resisting, obstructing, or delaying a peace officer (Pen. Code, § 148, subd. (a)(1)). On February 7, 2006, the court dismissed three of the four charges, and he admitted to the charge of resisting arrest under Penal Code section 148, subdivision (a)(1).
On April 12, 2006, appellant was charged in two counts of felony second degree robbery (Pen. Code, §§ 211/212.5, subd. (c)), with enhancements for personal use of a firearm and personally using firearm in the designated offense (Pen. Code, §§ 12022.5, subd. (a)(1), 12022.53, subd. (b)). On April 13, 2006, the petition was supplemented to include a third count, for misdemeanor assault and battery (Pen. Code, §§ 242/243, subd. (a)). The battery occurred while he was detained in juvenile hall. This charge was later dismissed, as his victims were unable to testify. On July 28, 2006, appellant admitted to one second degree robbery charge and the remaining charge and enhancements were dismissed.
At a dispositional hearing on August 18, 2006, the court committed appellant to the DJJ, for a maximum period of 11 years, with 804 days of credit. Appellant filed a notice of appeal on August 21, 2006.
DISCUSSION
I. Standard of Review
A judgment in a proceeding under Welfare and Institutions Code section 602 may be appealed from in the same manner as any final judgment. (Welf. & Inst. Code, § 800, subd. (a); Cal. Rules of Ct., rule 5.585(a); see also Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2006) § 3.122[1], p. 157.) In an appeal from such a judgment, an appellate court may reverse a decision of the juvenile court "only upon a showing that the court abused its discretion in committing a minor" to the DJJ. (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395, citing In re Eugene R. (1980) 107 Cal.App.3d 605, 617, and In re Todd W. (1979) 96 Cal.App.3d 408, 416.) The court "will not lightly substitute its decision for that rendered by the juvenile court," we must "indulge all reasonable inferences to support the decision of the juvenile court," and should not overturn the lower courts holding where there is substantial evidence to support it. (In re Michael D., at p. 1395, citing In re Eugene R., at p. 617, and In re Michael R. (1977) 73 Cal.App.3d 327, 332-333.)
II. The Lower Court Did Not Abuse Its Discretion by Committing Appellant to the California Department of Juvenile Justice.
If a minor is adjudged a ward of the court in a proceeding under Welfare and Institutions Code section 602, the court may commit him or her to the DJJ. (Welf. & Inst. Code, § 731, subd. (a); see also 10 Witkin, Summary of Cal. Law (10th ed. 2005) Parent & Child, § 942, pp. 1141-1142.) DJJ commitment "is intended to be the normal result of conviction of a minor in a criminal court when the minor is not granted probation." (10 Witkin, supra, Parent & Child, § 951, p. 1152, citing People v. Sparks (1968) 262 Cal.App.2d 597, 599.) Although courts have historically considered commitment to the DJJ as the placement of last resort for juvenile offenders, there is nevertheless no absolute right to have DJJ commitment used only as a last resort. (10 Witkin, supra, Parent & Child, § 942, p. 1153, citing In re Aline D. (1975) 14 Cal.3d 557, 564, and In re Tyrone O. (1989) 209 Cal.App.3d 145, 151.) This is the result of the Legislatures recognition of punishment as a rehabilitative tool under Welfare and Institutions Code section 202. (In re Luisa Z. (2000) 78 Cal.App.4th 978, 987, citing In re Lorenza M. (1989) 212 Cal.App.3d 49, 57.)
When ascertaining if there was substantial evidence to support the juvenile courts commitment order, the appellate court must examine the record in light of the purpose of the juvenile court law. (In re Michael D., supra, 188 Cal.App.3d at p. 1395, citing Welf. & Inst. Code, § 200 et seq., and In re Todd W., supra, 96 Cal.App.3d at pp. 416-417.) Subsequent to 1984 amendments to the Welfare and Institutions Code, section 202 thereof has stated that, in addition to the juvenile court laws traditional purpose of providing offenders with rehabilitative services, it has two new priorities, that of using punishment as a rehabilitative tool and that of serving the " `protection and safety of the public. " (In re Michael D., at p. 1396, quoting Welf. & Inst. Code, § 202, subd. (a).) The Legislatures intent in enacting those 1984 amendments was to "place greater emphasis on punishment for rehabilitative purposes and on a restrictive commitment as a means of protecting the public safety." (In re Michael D., at p. 1396) Nevertheless, commitment to the DJJ cannot be based solely on punishment for retributive purposes (Welf. & Inst. Code, § 202, subd. (e)(5)), so "there must continue to be evidence demonstrating (1) probable benefit to the minor and (2) that less restrictive alternatives are ineffective or inappropriate." (In re Michael D., at p. 1396.)
The defendant minor in In re Michael D. was adjudged a ward of the court after admitting to one count of sexual battery. He also admitted to having a history of alcohol and hallucinogen abuse. (In re Michael D., supra, 188 Cal.App.3d at pp. 1394, 1395.) At the dispositional hearing, three witnesses stated that he was not violent and that he should not be placed in the DJJ for various reasons. (Id. at p. 1394.) Among those reasons were that a return to the DJJ would increase his contact and involvement with youth gangs and that the DJJs lack of sufficient schooling would inhibit the minors intellectual growth. (Ibid.) Only one witness, a court-appointed psychologist, recommended that the minor be placed with the DJJ, because he was " `long . . . beyond the control of a reasonable authority " and because of the benefit he would get from a program that would " `slow him down [and] provide firm limits. " (Id. at pp. 1394-1395.) Finally, the probation report stated that minors conduct alone warranted DJJ commitment and consequently recommended as such. (Id. at p. 1395.)
Against the backdrop of the above evidence, the court in In re Michael D. held that there was substantial evidence to affirm the lower courts commitment of the minor to the DJJ. (In re Michael D., supra, 188 Cal.App.3d at p. 1397.) The minor needed a strictly disciplined environment, without which he would be a "threat to public safety," as well as access to drug rehabilitation services. (Ibid). Furthermore, his parents could not care for him in a manner consistent with the above-listed needs and the Legislatures "objective of the protection of the public." (Ibid).
In the instant case, appellant contends that he would receive no benefit from a DJJ commitment and that there are less restrictive alternative placements available. We disagree. It is apparent from the record that there is substantial evidence that it is in appellants best interest and the best interest of the publics safety to commit him to the DJJ. He has admitted to committing a series of increasingly violent crimes over a period of more than three years, including two counts of felony first degree residential burglary, two counts of felony second degree robbery, one count of felony assault likely to produce great bodily injury, one count of misdemeanor battery on a transit employee or passenger, and one count of misdemeanor resisting, obstructing, or delaying a peace officer. He has admitted to using marijuana. Over the same three years, he has been in and out of juvenile hall in both Contra Costa and Stanislaus Counties, as well as placements in boys ranches and on JEM. None of this has deterred appellant from continuing to commit increasingly violent crimes, even during his time spent in custody.
Like in In re Michael D., it appears that a DJJ commitment would be beneficial to appellant. The record details his extensive criminal activity from the period from 2003 to the present and includes the Contra Costa County Probation Departments Report and Recommendation of August 11, 2006, to the juvenile court, which recommends that he be committed. Because of this past criminal activity and his seeming unwillingness to reform while in juvenile hall or at boys ranches, it is apparent that appellant needs "an environment providing firm, strict discipline for his `out of control behavior," as evidenced by his increasingly-violent criminal record. (In re Michael D., supra, 188 Cal.App.3d at p. 1397.) A DJJ commitment will be to appellants benefit, if only because it may provide him with the disciplined environment he needs in order to break free from his criminal past.
Additionally, any suggestion by appellant that a less restrictive alternative placement would be more effective is unsustainable. Even the most cursory review of the record indicates that less restrictive alternative placements, such as juvenile hall or a boys ranch, have proven ineffective, since he has been in and out of the juvenile courts custody over the last three years, while the severity and number of his crimes continue to increase. One boys ranch, OAYRF, specifically rejected appellant because he was "unacceptable for a ranch program based on a history of failure." It is readily apparent that appellant is beyond the point of consideration for less restrictive alternative placements.
Furthermore, as in In re Michael D., "without such discipline and realignment of his social and moral structure" as the DJJ will provide, appellant "poses a demonstrated threat to public safety." (In re Michael D., supra, 188 Cal.App.3d at p. 1397.) The Contra Costa County Probation Department has repeatedly labeled him as a "serious threat to the community," and reported that it is necessary to protect the community from his "increasingly delinquent and assaultive behavior," which has been referenced repeatedly herein. It is evident that committing appellant to the DJJ will further the juvenile court laws purpose of serving the "`protection and safety of the public. " (Id. at p. 1396, quoting Welf. & Inst. Code, § 202, subd. (a).)
Based on the record, there is substantial evidence that the juvenile court did not abuse its discretion in committing appellant to the DJJ, and that commitment is affirmed.
III. The Juvenile Courts Calculation of Appellant Brandon W.s Custody Credits Should be Modified to a Total of 830 Days.
A minor committed to the DJJ is entitled under Welfare and Institutions Code section 726, subdivision (c), to a custody credit equal to the number of days he or she was detained while charges were still pending. (In re Eric J. (1979) 25 Cal.3d 522, 536.) Because there is no time limitation upon the right to move for the trial court to correct errors in sentencing, apparent errors in the calculation of such credits ought to be corrected in the trial court, before attempting to bring the issue up on appeal. (People v. Fares (1993) 16 Cal.App.4th 954, 958, 960; see also 6 Witkin, Cal. Crim. Law (3d ed. 2000) Crim. Appeal, § 140, pp. 387-389.) "If the dispute cannot be resolved by motion in the superior court, appeal is always available." (People v. Fares, supra, at p. 960.) But, when the miscalculation is the result of an arithmetic error, "involving no factual assessment or exercise in discretion and, in fact, will take no more than a few minutes of appellate time," it is in the interest of judicial economy to resolve it on appeal, rather than to return the issue to the trial court. (People v. Guillen (1994) 25 Cal.App.4th 756, 764.) "This is especially true when [the miscalculation] is one of a number of issues raised on appeal." (Ibid.) This is the situation in the instant case.
Appellant contends, and the respondent concedes, that the juvenile court relied upon the probation reports calculation of his presentence custody credits, and that the report contained an arithmetic error resulting in a reduction of those credits by 28 days. This contention has merit, as it is clear that the period from December 17, 2005, through the dispositional hearing on August 18, 2006, contains 244 days, not 216. Furthermore, there are two additional errors in the calculation of appellants presentence custody credits, not raised by either party, which resulted from the double-counting of two separate days on which he was transferred from one type of custody to another (May 1, 2003, and June 29, 2005).
It is apparent from the record that, prior to the dispositional hearing, appellant was in custody for a total of 830 days during the following periods: February 12, 2003, through May 18, 2003 (96 days); June 6, 2003, through July 13, 2004 (404 days); March 4, 2005, through March 29, 2005 (26 days); June 24, 2005, through August 2, 2005 (40 days); and November 28, 2005, through August 18, 2006 (264 days). He is therefore entitled to presentence custody credit against his term of confinement equal to those 830 days. The abstract of judgment should be modified to reflect this amount rather than the 804 days now shown.
DISPOSITION
As modified, the judgment is affirmed.
We concur:
Haerle, Acting P.J.
Richman, J.