Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. SJ08011474
Jones, P.J.
The minor, Randy A., admitted to one count of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) after participating in a gang-related attack and stabbing, and the juvenile court committed him to the Division of Juvenile Justice (DJJ). He appeals from the order of commitment, contending the court (1) abused its discretion in committing him to the DJJ, and (2) failed to afford him sufficient precommitment custody credit against his maximum term of confinement. We find no abuse of discretion in the court’s disposition. We agree, however, that the order of commitment does not provide full custody credit and remand the matter to the juvenile court for a determination of the additional custody credit Randy is owed. The order is affirmed in all other respects.
BACKGROUND
The Offense
On the evening of October 19, 2008, Randy was walking in Livermore with three other boys, minors E.H. and Z.K., and 18-year-old Sergio Ramirez (the boys). The boys, including 14-year-old Randy, were associated with the LVM Winos (Livermore Valley Mexicans), a street gang affiliated with a larger criminal gang known as the Norteños. Earlier that evening, the boys had chased a member of a rival gang, the Sureños, but “did not get him.” Angry that he got away, they decided to “get the next scrap.” Shortly thereafter, they observed 15-year-old S.V. across the street, riding his bicycle in their direction. Because of S.V.’s clothing, they suspected he was a Sureño and asked him, “What you bang?” When he said he did not belong to a gang, they asked, “Then, why you wearing Cortez’s [shoes]?” and ran across the street towards him. They pushed him off his bicycle, yelling “Norte” and “[S]crap.” One of the boys punched S.V. in the face, knocking him to the ground, and they all began hitting and kicking him repeatedly. The boys took his shoes and bicycle and fled. S.V. got up and ran home, where he discovered a puncture wound to his back and realized he had been stabbed. He was traumatized by the attack and was hospitalized for 12 days with head injuries, facial abrasions, and a punctured lung. According to his family, “he was... about to die [on two occasions] because his lung collapsed....”
Norteños use the derogatory word “scrap” to refer to Sureños.
LVM gang members commonly yell “Norte” before and during an assault to scare their enemies and show their affiliation with the Norteño gang.
When interviewed later by police, Sergio and the two minors confirmed that LVM leaders had given a standing order for them to physically assault rival gang members or “someone wearing blue.” The boys gave conflicting stories to police. E.H. initially told police he saw Sergio with a knife and claimed Sergio had stabbed the victim, but later attributed the stabbing to Z.K. Sergio told police that, before the attack, he had seen Randy carrying a steak knife with a four-inch blade and believed Randy had stabbed S.V. According to Sergio, Randy had remained composed after previous assaults but was “unusually nervous” after this incident. Randy denied that he had a knife, but admitted initiating the attack and punching the victim once or twice before fleeing. This claim conflicts with statements of the other boys, who said Randy “continued the attack on the victim.” None of the boys showed any remorse for their actions and, when told that the victim had been stabbed, did not appear to be concerned for his welfare.
The police report concluded that all four boys had personally used force on the victim and had done so to a degree that would cause great bodily injury by itself or when combined with the force used by the others. “Even those subjects who may not have stabbed the victim contributed to [the victim] being stabbed by striking him and rendering him incapable of defending himself....” They “were all active participants in this assault and carried [it] out... [in service to the gang]. ”
The Proceedings
On December 12, 2008, Randy was arrested in connection with the attack and transported to juvenile hall. Four days later, a juvenile wardship petition was filed (Welf. & Inst. Code, § 602, subd. (a)), charging him with four felony offenses, including: (1) robbery (Pen. Code, § 211) (Count One); (2) assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) (Count Two); (3) battery resulting in the infliction of serious bodily injury (Pen. Code, § 243, subd. (d)) (Count Three); and (4) receiving stolen property (Pen. Code, § 496) (Count Four). The petition also alleged enhancements under Penal Code sections 12022, subdivision (b)(1) [use of a dangerous weapon] and 186.22, subdivision (b)(1) [gang-related offenses]. At a detention hearing the next day, the court ordered that Randy be detained in secure custody at juvenile hall.
All undesignated statutory references are to the Welfare and Institutions Code.
The district attorney moved for an order declaring Randy unfit for juvenile court treatment (§ 707, subd. (c)), but later withdrew the fitness petition.
The behavioral study ordered by the juvenile court (§ 707, subd. (b)) concluded that Randy was “not a fit and proper subject to be dealt with under the juvenile court law.” The court noted a number of times during the proceedings that it would have remanded Randy to adult court if the People had not withdrawn the fitness petition.
On February 10, 2009, the district attorney informed the juvenile court “that the minor has been acting out at the Hall....” The court said to Randy: “There’s much in the report that indicates that you are involved, or affiliated with a gang, and that there’s been a lot of activity and misconduct that is going on resulting in... your being separated and others being separated and placed on behavior modification programs because you are not complying with the rules up there.” The court admonished him to comply with juvenile hall rules and to stop “associating with [gang members] and... creating a raucous upstairs... that [is] disruptive to everyone....”
The court held a jurisdiction hearing the next day. Randy admitted to Count Two, assault by means of force likely to produce great bodily injury, including his hands, his feet and a knife (Pen. Code, § 245, subd. (a)(1).) The court found this count to be true, dismissed the remaining charges “with facts and restitution open,” and found that Randy was “[a person] described by [s]ection 602....”
Randy denied using a knife, but the court said “even though he may not have personally used a knife, he was a principle [sic] and a knife was used and this victim was very seriously injured.” “[H]ands, feet and knife are part and parcel of this particular charge....”
Immediately after announcing its findings, the juvenile court received a report of vandalism: “XIV Livermore” had been carved into the window and the walls of the holding cell in which Randy, E.H., and Z.K. were placed while awaiting court. Randy denied involvement in the offense, claiming he was not in the holding cell when it was vandalized, as he had left to speak with counsel. The court said, however, that this conduct was consistent with his gang affiliation and “all the stuff going on in the Juvenile Hall about you.” The court said it could “see the writing on the wall,” namely, that if Randy continued down this path, he would end up in state prison. The court told Randy: “I am not saying that you wrote on the wall, but... the three of you were there so I see you all equally as responsible. I don’t know who did it. [...] It may have been you, maybe it wasn’t. So I am going to give you that benefit. ¶ But... your association leads me to think all of these horrible things about you.”
On February 26, 2009, the juvenile court held a disposition hearing. The probation officer’s report indicated that Randy continued to maintain he had hit S.V. a couple of times and knocked him off the bicycle, but had fled the scene and knew nothing about the stabbing. Emphasizing the predatory, gang-related nature of the offense, the assailants’ blatant disregard for the victim, and the seriousness of the victim’s injuries, the report recommended that the juvenile court declare Randy a ward of the court and commit him to DJJ. The report indicated that the probation officer had contacted a DJJ screener, who said the facility would accept Randy and he would receive victim awareness therapy, anger management therapy, gang intervention, and a heavy emphasis on education. The report recommended a finding that DJJ would provide a probable benefit to Randy, noting: “It is hopeful that due to the minor’s relatively young age, he can be rehabilitated with a program of intense counseling and gang intervention that the [DJJ] offers and will be able to rectify his negative behavior and make a smooth transition back into the community and discontinue his gang-related behavior.”
The report noted that Randy had three prior referrals to the probation department, all of which were handled without court action, and that all of his offenses had occurred within the previous year. In April 2008, he was arrested for possession of marijuana (Health & Saf. Code, § 11357), and again for possession of alcohol (Bus. & Prof. Code, § 25662). He was ordered to attend an alcohol/drug class, but did not appear, and the cases were closed with an unsatisfactory adjustment. On October 9, 2008, 10 days before the attack on S.V., police cited him for possession of a crowbar (Pen. Code, § 12020) and public intoxication (Pen. Code, § 647, subd. (f)). This case was handled informally as well.
The probation officer also reported that Randy had been involved in gang activity at juvenile hall and had been counseled on two occasions about the consequences of his negative behavior. The report did not identify the specific misconduct in which he engaged. The report indicated that he had just been moved to a different unit and had behaved appropriately since the transfer. Randy said he was trying his best to behave and to disassociate himself from gang activity.
At the disposition hearing, the juvenile court adjudged Randy a ward of the court and ordered a restitution fine of $100. (See §§ 725 & 730.6, subd. (b).) The court heard statements from the victim’s family and Randy’s mother, who apologized to the victim’s family, but said “Randy is not the one who caused the greatest harm.” The court found, however, that Randy was just as culpable as the one who stabbed the victim because he was “part of it” and was “egging it on[.]” After the court questioned whether he was truly remorseful and said it was “seriously considering sending [him] to DJJ,” Randy asked to speak to the victim’s family. He asked their forgiveness for the harm he caused and said he wanted to pay for “what I did, just what I did.”
The court expressed concern that Randy had been screened only for DJJ and not for any other placement. Noting that his prior offenses had been handled informally, the court said it “would like to know what the placement options are, which should include less restrictive options that will protect the public and also rehabilitate the minor.” The court ordered that Randy be screened for other placement options, including Rite of Passage, Boys Republic, and “anything else that is out there.” At defense counsel’s suggestion, the court also referred Randy for a Guidance Clinic evaluation addressing (1) his potential for violence and situations that increased or decreased it; (2) the peer and family dynamics contributing to his delinquent behavior; (3) whether he had psychological issues that would contraindicate a DJJ commitment; and (4) the type of setting that would be most beneficial to him. The court set a placement review on its nonappearance calendar for March 12, 2009.
The placement review report indicated that Randy’s case had been referred to Rite of Passage, Boy’s Republic, and Optimist Youth Home, but noted that “the minor continues to participate in gang activity.” This contention was based on a “letter from Randy” that was found during the search of another minor’s home. Randy’s name appears in the upper left corner of the envelope, with the address of juvenile hall as the return address. The letter was mailed on February 3, 2009, from the zip code where juvenile hall is located. The letter states, in pertinent part: “U know im up here in thi$ $hithole- doin my thang.... [T]here$ 2 $kraps in the unit but they don’t want it. I banged on they a$$ all they did wa$ look down and $cratch they big a$$ bald head.... Thi$ unit $till hela weak though. But wat$ been goin on in the hood. Dame bro I wi$h I wa$ out there wit u nigga$. I think I might be here 4 a minute. My P.O. is a fukin Bitch and my bitch a$$ D.A. aint even tryin 2 help me.... [M]y D.A. told me they don’t even want me they want heart a$$ “Feli$ha”.... But... they aint $hit I can do. I heard that $ucka a$$ Nigga $ergio i$ out it$ bad 4 that nigga it$ a 187 on hi$ bitch a$$. [...] I was hooked up wit Mou$ie$ fat a$$ in unit #10 4 a couple days but then I got tran$ferred 2 thi$ weak a$$ unit. Dame bro I mi$$ them old time$ when we be gettin Hela WINOED out. And $mokin hela blunt$. I heard they aint $hit 2 do anymore cause of the bitch a$$ pig$.” The letter is signed “I love you holme$. LIL G14O$T.” Below this are written the numbers “1” and “4” and the words “NORTE,” “LVM WINO$,” “NORTE CAUSE,” “C4NT $TOP WONT $TOP,” and “V4RRIO LiVerMore WINO$.” In large print at the bottom of the letter is written: “187 → $KRAP$, BB$, Mutt$, New Flower$” and, in larger characters: “187 → LPD Gang Ta$k.” The subjects of each 187 are crossed out with a large X.
Norteños show their gang association by displaying the number 14.
At the placement review on March 12, 2009, the district attorney told the court that the Livermore Police Department was completing a police report and wanted Randy charged with making threats against Sergio and the gang task force. Based on this letter (187 letter), the court concluded that Randy “appears to be deeply entrenched to the extent that it looks like he is talking about having somebody killed, a 187....” The court noted his continuing gang activity at juvenile hall and his lack of remorse and said “I was thinking – as I was reading this letter – whether I should be sending him to DJJ.
¶ Now, I know this is a nonappearance calendar and we don’t have his attorney... but I am rethinking the placement for him. This minor is dangerous.... [H]e’s on a dangerous path when he can so cavalierly talk about taking somebody out. I think he needs to go to DJJ. I really do.” The court said it thought DJJ “is the appropriate disposition for this minor under all the circumstances, and basically his actions are causing me to take a second look at what is going on with him. He needs some very quick and effective intervention, and he needs a secure setting[.]” The court noted that Boys Republic and other placements were not secure and said it was “very concerned about the harm he might actually end up causing others [if] he’s not in a locked facility. He needs to be in a locked facility.” The court put the matter over until March 26, 2009, and told the placement deputy to hold off on screening Randy for other placements until it obtained input from defense counsel.
A week later, an updated placement review report indicated that Rite of Passage, Boy’s Republic, and Optimist Youth Home had rejected Randy because (1) he continued to engage in gang activity, and (2) he was only in the seventh grade, and the onsite schools for these programs were high schools. The report noted that police planned to arrest Randy in connection with the letter threatening the Livermore Police Department. The report also indicated: “As directed by the court, all efforts to place the minor [have] ceased.”
At the March 26, 2009 hearing, Randy denied writing the letter. Based on the representations of Randy’s family, defense counsel contended the letter was not in Randy’s handwriting and elicited testimony from him that he knew who had written the letter but was afraid to identify this person in court. The juvenile court concluded: “Whether the letter was written by the minor or not, [he] continues to be engaged in behaviors that are inappropriate in the Juvenile Hall. It’s clear to the [c]ourt that he is definitely entrenched with gangs and apparently glorifies that. ¶ This minor, in my opinion, is a danger to the public.... [F]or the protection of the public, the [c]ourt needs to consider that he should be in a locked facility, not in a facility that he can run away from, AWOL, reconnect with the gangs, and probably kill somebody. [...] [T]hat is what is going to happen to somebody unless this minor is stopped.” The court committed Randy to the DJJ, finding “the minor’s mental and physical condition and qualifications are such as to render it probable that he will be benefited by the reformatory educational discipline or other treatment provided by the [DJJ].” (See § 734.)
After announcing its disposition, the court noted “just for the record” that it had received the Guidance Clinic evaluation that morning but had not yet reviewed it. The court said it would review this report by the next placement review on April 9, 2009. The minute order and the transcript for the April 9 placement review do not mention this report.
The Guidance Clinic evaluation concluded that Randy had no psychological issues contraindicating DJJ commitment, that he had a potential for violence, which his gang involvement significantly increased, that he had been exposed primarily to negative adult and peer influences, and that his parents had left his negative behavior “mostly unaddressed.” Randy said he had smoked marijuana regularly since age 13 and had attended school under the influence. He claimed he grew his own marijuana. He said he also had experimented with hard liquors and drank to the point of intoxication without disciplinary action by his mother. He had been suspended from school multiple times for getting kicked out of class, fighting, and wearing gang attire. His class attendance was poor, and he had failed two grades. The report indicated he would benefit from “an environment in which he is submerged in structure and support” and that with strong guidance and strict discipline, he had the ability to succeed.
Randy’s older brother was a member of the LVM gang and was on felony probation for assault with a deadly weapon (Pen. Code, § 245).
The social worker expressed her “strong opinion” against a DJJ commitment: “[T]o prevent future recidivism and decrease Randy’s gang involvement... [he] would be better served in an environment that will confront and address his gang affiliation, not encourage or increase it.” (Italics omitted.) The report emphasized that he was 14 years old, did not have an extensive criminal or violent background, and “ha[d] not received any formal intervention to decrease his gang association, improve his academic status or address his substance abuse, prior to the referring offense.” (Italics omitted.) The report recommended that the court give him an opportunity to succeed in an alternative placement before committing him to DJJ: “Should Randy go directly to [DJJ], it is important to point out his developmental stage and how easily influenced one can be when provided with limited options.... [A]t the age of 14, and the type of offense on record, he will likely glorify his offense upon entering [DJJ]. This position that Randy will assume, will in turn reinforce his gang affiliation, and beliefs and desires to be a part of a gang. In addition, Randy will most likely form a strong connection with the other gang inmates at [DJJ], thus making it almost certain that [he] will become more entrenched in the Norteño gang lifestyle, and consequently increasing his criminal sophistication. In the end, Randy will most likely be released from [DJJ] as a harder, more entrenched gang member who will go on to reoffend.” The report recommended: (1) an environment or cognitive behavioral program that specializes in servicing gang members; (2) a certified substance abuse program; (3) anger management with correction of “thinking errors”; (4) empathy-based assertiveness training; (5) vocational skills development; (6) training in independent living skills; and (7) access to pro-social role models.
On April 1, 2009, the court issued a form order of commitment to the DJJ, ordering 77 days of custody credit against a four-year maximum period of confinement. Randy filed a timely notice of appeal from this order.
DISCUSSION
I. The DJJ Commitment
Randy contends the juvenile court erred in committing him to DJJ. We review the juvenile court’s commitment decision for an abuse of discretion, “indulg[ing] all reasonable inferences to support [it].” (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.) “[We] will not disturb [the juvenile court’s] findings when there is substantial evidence to support them. [Citations.]” (Ibid.)
A. The Court Did Not Abuse Its Discretion in Ordering a DJJ Commitment
In determining the proper disposition for a delinquent minor, the juvenile court’s discretion is guided by two concerns: the minor’s best interests and public protection. (In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684; see § 202, subd. (d) [the court “shall consider the safety and protection of the public, the importance of redressing injuries to victims, and the best interests of the minor...”].) Delinquent minors “shall, in conformity with the interests of public safety and protection, receive care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances.” (§ 202, subd. (b).) In making this determination, the court “shall consider, in addition to other relevant and material evidence, (1) the age of the minor, (2) the circumstances and gravity of the offense [he] committed... and (3) [his] previous delinquent history.” (§ 725.5.)
The minor should receive guidance that “enable[s] him... to be a law-abiding and productive member of his... family and the community” when he is no longer a ward of the court. (§ 202, subd. (b).) Proper “guidance” may include punishment, but in the juvenile court, this term refers not to retribution, but to the imposition of sanctions. (§ 202, subds. (b) & (e).) The punishment imposed must be consistent with the rehabilitative objectives of juvenile proceedings. (§ 202, subd. (b); see In re Eddie M. (2003) 31 Cal.4th 480, 507.) Indeed, the Juvenile Court Law now “recognize[s] punishment as a rehabilitative tool....” (In re Michael D., supra, 188 Cal.App.3d at p. 1396.) “Within these bounds, the court has broad discretion to choose probation and/or various forms of custodial confinement in order to hold juveniles accountable for their behavior, and to protect the public.” (Eddie M., supra, 31 Cal.4th at p. 507.)
Commitment to DJJ, the most restrictive placement, is one of the permissible sanctions that may be imposed as punishment. (See § 202, subd. (e)(5); In re Eddie M., supra, 31 Cal.4th at p. 488.) DJJ is “an institution primarily designed for the incarceration and discipline of serious offenders” (In re Aline D. (1975) 14 Cal.3d 557, 567, superseded by statute on other grounds as stated in In re Luisa Z. (2000) 78 Cal.App.4th 978, 987), the “most severely delinquent youths.” (In re Teofilio A. (1989) 210 Cal.App.3d 571, 578.) Accordingly, the juvenile court’s discretion to commit a minor to DJJ is not without limits. (Id. at p.576.) A minor adjudged a ward of the court under section 602 is eligible for DJJ only if he committed one of the offenses set out in section 707, subdivision (b). (§ 731, subd. (a)(4).) A DJJ commitment also must be supported by evidence demonstrating: (1) that commitment to DJJ will provide a probable benefit to the minor, and (2) that less restrictive alternatives are ineffective or inappropriate. (In re Teofilio A., supra, 210 Cal.App.3d at p. 576; In re George M. (1993) 14 Cal.App.4th 376, 379.)
Applying these principles, we conclude that the juvenile court did not abuse its discretion in committing Randy to the DJJ. Randy admitted to one of the serious offenses for which the Legislature has reserved this particular disposition (see §§ 731, subd. (a)(4) & 707, subd. (b)(14)), and the court made the probable benefit finding required by section 734. The record also demonstrates that the court considered the relevant statutory factors and reasonably concluded that DJJ commitment was the appropriate disposition here. The court considered the seriousness of Randy’s offense, his lack of remorse, and his continuing gang activity in finding that a secure placement was necessary to prevent him from going “AWOL, reconnect[ing] with the gangs, and probably kill[ing] somebody.” The court also emphasized that his continuing gang involvement put him on “a destructive path” that would lead to a life in state prison and concluded that he needed “some very quick and effective intervention[.]” Thus, the court’s decision not only protects the public, but also holds Randy accountable and provides guidance in the form of rehabilitative punishment. (See § 202, subd. (e)(5).) A court considering the evidence in this case could reasonably conclude that “[Randy’s] best interests require an environment providing strict discipline... [and that] without such discipline and realignment of his social and moral structure he poses a demonstrated threat to public safety.” (See In re Michael D., supra, 188 Cal.App.3d at p. 1397.)
Under section 734, the court must be “fully satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefitted by the reformatory educational discipline or other treatment provided by the [Division of Juvenile Facilities].” The Division of Juvenile Facilities is a division of the DJJ. (10 Witkin, Summary of Cal. Law (May 2009 supp.) Parent & Child, § 950, p. 381.)
The record therefore refutes Randy’s assertion that the court focused solely on protecting the public without considering whether he would benefit.
B. Randy Has Not Shown an Abuse of Discretion
Randy contends the juvenile court’s disposition must be reversed because: (1) substantial evidence does not show he would gain a probable benefit from DJJ, (2) the court failed to consider the Guidance Clinic evaluation, and (3) the court should have ordered a less restrictive placement. We conclude, for the reasons set out below, that these contentions have no merit.
1. Probable Benefit to Randy
Randy contends substantial evidence does not support the court’s probable benefit finding because the record fails to establish that DJJ would meet his specific needs and shows it would harm him instead. He maintains, first, that “there must be evidence that the DJJ will provide, in an appropriate environment, the types of counseling, education, and other support services necessary to his rehabilitation,” and that “[t]he record is devoid of any substantial evidence that the DJJ can effectively meet any of those needs[.]” We disagree. Contrary to his assertion, the probation report does not focus only on the seriousness of the offense and shows that a DJJ placement would benefit him. (See In re Anthony M. (1981) 116 Cal.App.3d 491, 502 [the seriousness of the offense is not enough alone to support a DJJ commitment].) This report considered not only the gravity and circumstances of the offense, but also Randy’s lack of remorse, his age, and the potential rehabilitative benefit he would gain from the “intense counseling and gang intervention that [DJJ] offers[.]” The report also identifies specific services DJJ offers, including victim awareness and anger management therapy, gang intervention, and an educational emphasis. We do not find it significant that the report does not conclusively state that Randy would be rehabilitated; the probation officer's statement that rehabilitation “is hopeful” is sufficient to show a probable benefit. (See In re Jonathan T. (2008) 166 Cal.App.4th 474, 486 [juvenile court’s statement that it “ ‘would anticipate [minor’s rehabilitative needs] would be addressed by the [DJJ] programs’ ”], original italics.)
Randy contends that the probation report is deficient nonetheless because it provides no details about the programs offered and does not explain how they would meet his specific needs. He cites no authority establishing that more specificity is required, however, and “[t]here is no requirement that the court find exactly how a minor will benefit from being committed to DJJ. The court is only required to find if it is probable a minor will benefit from being committed.... ” (In re Jonathan T., supra, 166 Cal.App.4th at p. 486.) The circumstances of the assault, Randy’s lack of remorse, his altercations at school and juvenile hall, and his connection to the gang suggest he lacks empathy, has anger management issues, and would benefit from the services identified in the report. The record shows he also would benefit from DJJ’s emphasis on education, as he rarely attended school, failed two grade levels, and consistently received failing marks. Randy argues that these programs fail to address issues “that are critical to his [success] in society without descending into a life of crime, such as a substance abuse program, vocational training, and independent living skills.” There is no requirement that the court’s disposition meet all his needs, and the court was free to reject the recommendations of the Guidance Clinic evaluation, in any case. We also note that the services in the probation officer’s report are not the only ones DJJ provides. (See 10 Witkin, supra, § 950, p. 381, citing § 1710, subd. (b)(2) [DJJ Division of Juvenile Programs “provide[s] education, training, treatment, and rehabilitation to youthful offenders to promote community restoration, family ties, accountability to victims, and to produce youth who become law-abiding and productive members of society...”]; § 224.71, subd. (n) [right to vocational training]; In re Tyrone O. (1989) 209 Cal.App.3d 145, 153 [“The trial court properly found that [DJJ], with its specialized institutions and rehabilitative programs tailored to the delinquent’s sophistication and need for security [citation], offered the promise of [a] probable rehabilitative benefit...”].) Substantial evidence supports a finding that DJJ treatment and services will provide a probable benefit to Randy. In so concluding, we observe that DJJ also offers other benefits, including a secure environment and appropriate guidance in the form of punishment, discipline, and accountability. (See In re Luisa Z., supra, 78 Cal.App.4th at p. 988 [“increased emphasis on punishment as a tool of rehabilitation”]; In re Jonathan T., supra, 166 Cal.App.4th at p. 486 [DJJ would provide a secure environment for the minor’s rehabilitative care].)
The Guidance Clinic evaluation confirmed that “Randy’s level of empathy... was inadequate” and would need to be addressed and that he could be “easily triggered by both situational and environmental factors.”
Randy contends case law recognizing that DJJ may benefit some minors is distinguishable because it was decided before “significant deficiencies in the DJJ became common knowledge.” He relies on newspaper articles that are not part of the record, and we do not consider them. We also observe that the court in In re Jonathan T. rejected a similar argument. (See In re Jonathan T., supra, 166 Cal.App.4th at p. 486.)
Randy also contends DJJ will affirmatively harm him by exacerbating his gang connection and turning him into a hardened criminal. The social worker believed this, but the court found, in accordance with the probation officer’s report, that a DJJ commitment would result in Randy’s rehabilitation. We do not reweigh the evidence (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75), and must resolve all conflicts in favor of the judgment. (In re Angelia P. (1981) 28 Cal.3d 908, 924, superseded by statute on other grounds as stated in In re Cody W. (1994) 31 Cal.App.4th 221, 229-230.) Our role is to determine whether this finding is supported by reasonable, credible evidence of solid value. As explained above, we conclude that it is.
2. The Guidance Clinic Evaluation
Randy also contends that reversal is required because the juvenile court failed to consider the Guidance Clinic evaluation. He contends that, as a result, “the court’s analytic process was flawed,” and its disposition was speculative. He correctly asserts that the court must consider any relevant evidence offered. (See § 706; Cal. Rules of Court, rule 5.785(b); In re Robert H. (2002) 96 Cal.App.4th 1317, 1329, quoting In re Jimmy P., supra, 50 Cal.App.4th at p. 1684 [court must consider “ ‘the broadest range of information’ ” in determining the disposition of a minor].) Randy did not object, however, when the court expressly issued a disposition before reviewing the evaluation. Therefore, he has waived any error in this regard. (See In re Sheena K. (2007) 40 Cal.4th 875, 880-889 [waiver rule applies in juvenile dispositions]; see In re Sean W. (2005) 127 Cal.App.4th 1177, 1181, quoting P. v. Scott (1994) 9 Cal.4th 331, 354 [imposition of a commitment “ ‘in a procedurally or factually flawed manner’ ”].) To the extent Randy contends the court erred in failing to consider this report before the next placement review, as it promised to do, we question whether he also waived this assertion of error. There is no indication in the record that he ever raised this issue again, at the next placement review or at any other hearing.
Contrary to appellant's contention, there is no evidence that the court refused to consider the Guidance Clinic evaluation. The court said it would do so, and, in the absence of evidence to the contrary, we presume it reviewed the evaluation and found that it did not call for a different disposition. (See Evid. Code, § 664 [presumption official duty was regularly performed]; LeFlore v. Grass Harp Productions, Inc. (1997) 57 Cal.App.4th 824, 839 [with no proof specifically establishing that the court ignored the evidence, a reviewing court presumes it did]; Moreno Mut. Irr. Co. v. Beaumont Irr. Dist. (1949) 94 Cal.App.2d 766, 780 [“[A]ny condition of facts consistent with [the judgment’s] validity will be presumed to have existed rather than one which will defeat it..., and where the record is silent as to what was done it will be presumed... that what ought to have been done was not only done but rightly done”]; accord, People v. Allegheny Casualty Co. (2007) 41 Cal.4th 704, 716.) Although the evaluation sets out the social worker’s strong opinion against a DJJ commitment, the court was not required to rely on this report and could reasonably have found the probation officer’s recommendation more persuasive. We observe, in any case, that the evaluation does not consist solely of evidence militating against a DJJ commitment but also includes evidence that supports such a disposition.
The evaluation concluded, for example, that no psychological issues contraindicated a DJJ commitment, that Randy had a potential for violence, and that he lacked empathy and accountability for his role in the attack. In addition, the report discussed his involvement in the Norteño gang and its negative impact on his conduct. The report also showed that he used and produced illegal drugs, routinely skipped school, and was suspended on multiple occasions for fighting and wearing gang attire.
C. Failure to Order a Less Restrictive Placement
Randy contends a DJJ commitment is a disposition of “last resort” that was not appropriate for a 14-year-old who had no prior involvement in the juvenile justice system and no significant criminal history, and had never received gang intervention or tried less restrictive placements. We do not agree that these factors required a less restrictive disposition.
Although “the statutory scheme contemplates a progressively more restrictive and punitive series of dispositions” and “the DJJ is normally a placement of last resort,” a court does not necessarily abuse its discretion by ordering a DJJ commitment before other, less restrictive options have been tried. (See In re M.S. (2009) 174 Cal.App.4th 1241, 1250;In re Eddie M., supra, 31 Cal.4th at p. 507; In re Tyrone O., supra, 209 Cal.App.3d at p. 151[“There is no absolute rule barring [DJJ] commitment except as a last resort.”].) “[J]uvenile placements need not follow any particular order... including from the least to the most restrictive.” (In re Eddie M., supra, at p. 507; accord, John L. v. Superior Court (2004) 33 Cal.4th 158, 184 [“Many years have passed since juvenile courts lacked [the] flexibility [to order DJJ in the first instance]”].)
Randy concedes that in some cases a juvenile court may commit a minor to DJJ when no other placements have been tried, but contends, in such cases, “it is incumbent upon the court to fully consider all possible alternatives” because DJJ is “reserved for ‘only the most serious cases after all else has failed.’ ” He argues that the juvenile court did not do so here because it ordered the probation officer to stop investigating other placements. The record shows, however, that the court began exploring all placement options, including less restrictive options that would protect the public, but received evidence causing it to “rethink[] the placement for [Randy].” The court found a secure facility was necessary to protect the public. None of the placements under consideration were secure.
The court acted well within its discretion in focusing on the need to protect the public. The requirement that less restrictive alternatives be ineffective or inappropriate “must be taken together with the Legislature’s purposes in amending the Juvenile Court Law [in 1984].” (In re Michael D., supra, 188 Cal.App.3d at p. 1396; accord, In re Carl N. (2008) 160 Cal.App.4th 423.) The 1984 amendments to the Juvenile Court Law “shifted its emphasis from a primarily less restrictive alternative approach oriented towards the benefit of the minor to the express ‘protection and safety of the public’ [citations], where care, treatment, and guidance shall conform to the interests of public safety and protection. [Citation.]” (In re Michael D., supra, 188 Cal.App.3d at p. 1396.) “[I]t is clear that the Legislature intended to place greater emphasis on punishment for rehabilitative purposes and on a restrictive commitment as a means of protecting the public safety.” (Ibid.; accord, In re Christopher B. (2007) 156 Cal.App.4th 1557, 1563-1564.) “[C]ase law has relied on the new directive of protecting the public to uphold more stringent dispositions.” (Id., at p. 1564.) In In re Asean D. (1993) 14 Cal.App.4th 467, for example, the court upheld a California Youth Authority commitment of a minor with no juvenile record. The court concluded that “despite the minor's good record, the viciousness of the attack... and his continuing refusal (despite his formal admission) to take responsibility for the crimes, clearly signalled that he constituted a serious danger to the public unless securely confined.” (See id. at p. 473.) The same factors support the court’s decision here, notwithstanding Randy’s age and criminal history. He minimized his role in the attack and “[w]ith respect to [its] severity... [his] level of accountability was low.”
We note that the commitment order was issued less than three weeks before Randy’s 15th birthday. There also was evidence he had participated in prior assaults, and the reporting officer indicated, “I have had many prior police contacts with... [Randy].”
Randy challenges the court’s finding that a secure setting was necessary to protect the public. First, he contends substantial evidence does not support the court’s finding that he is dangerous. The evidence shows, however, that (1) he and the other boys were hunting for Sureños to “jump” that night, (2) he participated in a predatory, unprovoked, and vicious attack in which the victim was outnumbered four to one, (3) he acted without remorse or concern for the victim’s life, and (4) he did so in service to a violent street gang. Members of this gang commonly “carry weapons and... commit assaults... at the direction of their leaders to further the cause of their gang, for self protection, intended targets of violent assaults, to intimidate rival gang members and/or enemies, and members of the community.” The 187 letter and Randy’s misconduct at juvenile hall demonstrate his continuing devotion to the gang and its “cause.” The 187 letter also boasts of aggressive behavior against “$kraps in the unit” and asserts what may reasonably be construed as death threats, with which police planned to charge him. Contrary to Randy’s assertion, the evidence reasonably permits a finding that he wrote the 187 letter. The envelope bears his name and the address where he was confined. The letter was mailed from the same zip code and appears to have been written by a member of the LVM Winos who was confined and bore a grudge against Sergio. Randy contended below that the letter was not in his handwriting but did not present a handwriting sample or any other evidence to demonstrate this. A court could reasonably conclude from this evidence that he wrote the letter and that he was dangerous. In any case, it is not unreasonable to find, as the juvenile court did here, that Randy posed a threat to the public even if he did not write the letter. His misconduct at juvenile hall demonstrates his continuing dedication to the gang’s violent objectives.
Although the record does not identify the specific misconduct in which Randy engaged, statements of the juvenile court indicate that his behavior in juvenile hall was disruptive and required separation of the minors and behavioral modification plans. Randy does not dispute that he engaged in such misconduct or that it was gang-related.
Randy contends the court also found him dangerous because of the graffiti incident “based on the erroneous belief that he was the only person in the cell.” As we conclude that other evidence supports the court’s finding, we need not consider this contention. Even if true, this incident simply confirms his continuing gang connection.
Second, Randy contends the evidence does not support the court’s conclusion that he required placement “ ‘in a locked facility, not in a facility that he can run away from’ ” in order to protect the public. He notes that there is no evidence he had ever run away from home, that he did not run from police, and that he admitted the assault. He cites no authority requiring proof that a minor will run away from an unlocked facility. Indeed, the court is not required to simply trust that a minor who poses a threat to human life will comply with his placement because he has not run away before. To hold otherwise would put the public at undue risk. In any case, the evidence here reasonably permits a finding that Randy was not likely to comply with a placement that separated him from other LVM gang members. He had strong ties to the gang and had consistently resisted the efforts of his parents and school, juvenile hall, and the court to sever them.
Finally, Randy maintains that a less restrictive facility would have protected the public in any case. He contends “camp placement accomplishes the purpose of removing the minor from the community, and ‘fulfills the purpose of imposing responsibility on the minor for his acts.’ ” Even if this contention is correct, we are not persuaded that it calls for a different result. First, “the circumstances in a particular case may well suggest the desirability of a commitment despite the availability of such alternative dispositions as placement in a county camp or ranch.” (In re Anthony M., supra, 116 Cal.App.3d at p. 502 & fn. 2 [recognizing that a DJJ commitment is justified when the circumstances of an offense evidence a disregard for life]; In re Tyrone O., supra, 209 Cal.App.3d at p. 151.) Second, the authority on which he relies, In re Michael R. (1977) 73 Cal.App.3d 327, 339, is distinguishable. That casewas decided before the 1984 amendments, which emphasized restrictive commitment as a means of protecting the public. (See In re Michael D., supra, 188 Cal.App.3d at p. 1396.) In addition, the probation officer in In re Michael R. recommended camp placement, and “[t]here was no suggestion by anyone at the hearing that the proposed ‘removal from the community’ by camp placement would not accomplish this protective purpose.” (See In re Michael R., supra, at p. 1339.) Here, the probation officer recommended a DJJ commitment, and the juvenile court found that Randy needed a secure facility, not simply removal from the community. (See In re Julian R. (2009) 47 Cal.4th 487, 495 [“Wards may be committed to a county home, to a ranch or camp, or to a county juvenile hall. (§ 730, subd. (a).) Wards requiring more secure facilities may be committed to the Division of Juvenile Facilities. (§§ 731, subd. (a)(4), 734.)”].)
Before these amendments, section 202 favored juvenile court treatment “in [the person's] own home.” (John L. v. Superior Court, supra, 33 Cal.4th at p. 184 & fn. 10.) “Until this preference was removed from the statutory scheme, [wards] received the most lenient disposition initially, and experienced more restrictive placements incrementally, after less restrictive options were tried.” (Id., at p. 185.)
In so holding, we reject Randy’s contention that the protection of a DJJ commitment will be “short-lived” because it will mold him into a “ ‘trained and sophisticated criminal.’ ” The court reasonably accepted the probation officer’s assertion that a DJJ commitment would result in Randy’s rehabilitation. We find no abuse of discretion in the juvenile court’s disposition.
II. The Custody Credits Awarded in the Commitment Order
Randy contends the commitment order does not accurately reflect the custody credits to which he is entitled because it does not include the time he spent in custody between the February 26, 2009 disposition hearing and the date he was transported to the DJJ. He maintains that remand is necessary to correct this error, as the record does not identify the specific date he “was actually committed to the DJJ.” The People concede that he is entitled to credit for the full time he spent in secure custody and that remand is appropriate.
A minor is entitled to credit against his term of commitment for all days spent in physical confinement on the charges that resulted in his commitment. (In re Antwon R. (2001) 87 Cal.App.4th 348, 352; see § 726 [the minor may not be held in physical confinement for longer than the maximum term of imprisonment that could be imposed on an adult convicted of the same offense]; Pen. Code, § 2900.5 [credit for time in custody].) This includes the time he spends in a secure facility between the dispositional hearing and the date he is transported to the commitment facility. (In re J.M. (2009) 170 Cal.App.4th 1253, 1256.) The juvenile court ordered 77 days of precommitment custody credit. The record shows that Randy had accrued 77 days of custody credit as of the February 26, 2009 dispositional hearing, but that he was still at juvenile hall six weeks later. The commitment order does not afford him custody credit for the time between February 26, 2009, and the date he was transported to DJJ. As we cannot determine from this record the date Randy was physically committed to DJJ, remand is necessary for determination of the additional custody credit he is owed.
DISPOSITION
The matter is remanded to the juvenile court for a determination, consistent with this opinion, of the additional custody credit to which Randy is entitled and for modification of the commitment order accordingly. The order of commitment is otherwise affirmed.
We concur: Needham, J., Bruiniers, J.