Opinion
A152191
03-29-2018
In re DAVID G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. DAVID G., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J1700486)
Seventeen-year-old David G. appeals a disposition order committing him to juvenile hall for a maximum term of five years or until age 21, in order to participate in a county-run rehabilitation program that typically lasts one year (and, upon his release from the program, to return home on probation), after David admitted allegations that he committed second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)). The disposition stems from a robbery at knifepoint he and an older friend committed in which their victim, another friend of David's, received a critically serious stab wound to the abdomen.
David challenges the juvenile court's commitment order as an abuse of discretion, and also the term of his confinement. We reject his arguments and affirm.
BACKGROUND
At approximately 11:30 p.m. on April 18, 2017, Danville Police Department officers responded to a report of an armed robbery and assault with a deadly weapon, where they encountered 18-year-old Griffin Bliss with a stab wound to his abdomen that left a golf ball-sized portion of his intestine protruding from his body. The victim reported he'd been stabbed by David who also, according to the victim, had taken his Louis Vuitton belt and $700 in cash. The victim was rushed to the hospital by ambulance with potentially life-threatening injuries and underwent surgery. Two days later, the victim spoke to police again from the hospital and gave a further statement. David was a friend, and had come to the victim's house in Danville that night to sell the victim David's Louis Vuitton belt. When David arrived he was with another person (Luc Foglizzo), and all three drove together to a nearby parking lot, with the victim carrying $700 in cash. All three got out of the car, and a scuffle ensued in which the victim was struck in the back of the head and turned around to see Luc holding a knife, while David tried to grab the victim. The victim tried to run away but both assailants chased him down, Luc held a knife at his throat and demanded his wallet while David demanded his jacket and cell phone. David took his cell phone and the belt off of him, and the victim also handed over his jacket.
David was apprehended and arrested by police, who traced him through his car. He denied any involvement. Police found a knife and cell phone in his car and a hat with blood on it, and another knife and cell phone in Luc's pockets. David was carrying $620 in cash, and Luc had $324.
These proceedings were commented in April 2017, when the Contra Costa District Attorney filed a wardship proceeding alleging the second degree robbery count against David, as well as a second count alleging assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). Shortly thereafter, David admitted the robbery charge as part of a negotiated resolution, the assault charge was dismissed and David agreed to answer questions under oath about the incident.
He did so, and although his testimony was somewhat unclear about what had transpired, in substance he admitted only that he had taken back the belt and some money from his friend, and denied even knowing Luc had a knife. David's testimony painted his friend, Luc ("a dope fiend" and "bully," who was both bigger and older, and "kind of scared" him), as the instigator of the robbery and the aggressor, who got into an altercation with the victim and, unbeknownst to David, stabbed him while David was sitting alone in the car. Afterwards, when Luc returned to the car, he gave David the belt.
At the ensuing disposition hearing, the juvenile court declared wardship and committed David to a county institution for a period not to exceed five years or until age 21, ordering him detained at juvenile hall to participate in a Contra Costa County program called YOTP, which is a roughly one-year program run at juvenile hall that would provide him with appropriate rehabilitative services (including counseling and medication for his ADHD). The court anticipated that David would get released from YOTP sooner than a year, even as quickly as ten months, if he continued to progress, and directed that David would be placed at home upon his release from YOTP, subject to various terms and conditions of probation.
This appeal followed.
DISCUSSION
David argues the juvenile court abused its discretion in ordering him to participate in YOTP. We disagree.
The People urge us to deem this issue forfeited because it was not raised below. It is unnecessary to address the point because we would elect to exercise our discretion to decide this appeal on its merits in any event.
David's principal reason is that the juvenile court purportedly did not consider less restrictive alternatives and determine that they would be ineffective. But he concedes in his reply brief that the cases he cites involve commitments to the California Department of Corrections, Division of Juvenile Facilities (DJF, formerly DJJ or CYA). In any event, the juvenile court did consider less restrictive alternatives: placement at home with his parents, as urged by his mother, and a placement at Orrin Allen Youth Rehabilitation Facility which rejected him because of the seriousness of his offense. The court also considered, and rejected, a more restrictive placement: at DJF.
Earlier, before accepting David's plea at the detention hearing, the juvenile court stated it would have a broad range of dispositional options, ranging from DJF at the extreme to sending David home with an ankle monitor or placing him in an out-of-home placement or rehabilitation facility.
David also argues "less restrictive means, especially placement in some 'out-of-home' placement, would have provided substantial benefit . . . and would have been wholly appropriate." The court did place David in an out-of-home placement: it committed him to juvenile hall until completion of the YOTP program. Moreover, whether another program would have been "wholly appropriate" is beside the point. Under the deferential abuse of discretion standard that governs our review, we cannot substitute our judgment for that of the juvenile court unless no reasonable judge could determine that this placement is inappropriate. (See In re J.S. (2016) 6 Cal.App.5th 414, 423.)
In his reply brief, David makes several points, none of which persuades us. He maintains "the issue here is the utter lack of evidence to support the YOTP commitment." We disagree. The very authority he cites demonstrates there was no abuse of discretion. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1328-1330.) It upheld a commitment to an out-of-home placement (at a camp community placement program), in lieu of a disposition of home on probation, for a minor like David who committed a serious offense (a shooting that resulted in no injury), with supportive parents, no prior criminal record and no other severe behavioral or other problems, and where the shooting incident appeared to be an isolated incident that resulted from bad judgment. The placement was held to be justified principally by the gravity of the minor's offense, as well as other circumstances such as the fact he'd been arrested with someone who possessed marijuana. (See id. at p. 1330.) We have little trouble concluding there was no abuse of discretion on this record either, given among other things the seriousness of David's offense, the probation department's assessment he took "minimal" responsibility for his actions, the fact he had lied to the police (claiming at first he had not even been in the area that night), an attendance and disciplinary record at school that was not free of blemishes (he had many unexcused absences, had been suspended a number of times, including for fighting, and was facing expulsion), his age (at 17, his conduct could hardly be excused as the actions of an immature child), and the fact he'd fallen in with an older, weapons-wielding ruffian who, by David's own admission, was a "a dope fiend." (See Welf. & Inst. Code, § 725.5.) David cites no contrary authority. Indeed, David's offense was so serious he was eligible for a DJF commitment, but the juvenile court declined to go so far. David essentially asks us to re-weigh the evidence and decide an appropriate disposition for him anew, independently, which we cannot do. (See In re J.S., supra, 6 Cal.App.5th at p. 423; In re Katelynn Y. (2012) 209 Cal.App.4th 871, 881.)
Although he does not reprise the argument here, David argued below at the disposition hearing he was not the one who stabbed the victim. There is substantial evidence that he was: according to the probation report, the victim reported to police that David stabbed him and stole the belt and $700 in cash. Further, whether or not David or Luc did the stabbing is immaterial. There is substantial evidence at a minimum that David participated in a highly dangerous robbery at knifepoint that resulted in serious injury that could well have been fatal. --------
David also complains the court gave "no explanation" for the decision it made, but he cites no authority that one was required. He also argues the court did not articulate that it had considered all of the appropriate factors it was legally required to consider, warranting reversal under In re John F. (1983) 150 Cal.App.3d 182. John F. is an outlying case with extreme facts that reversed a disposition order and remanded the case for another hearing, where a minor was committed to a local youth facility solely because his co-responsibles in a rape were sent there too, and there was no indication from surrounding circumstances that the court had made an independent determination of the minor's suitability for that disposition. (Id. at p. 185, fn. 2.) That is a far cry from this case. Unlike in John F., where the court's express language negated any possible implied finding that it had considered all appropriate factors (id. at p. 185), nothing in the record here suggests the court did not properly exercise its duty to consider all relevant circumstances. On the contrary, the juvenile court said at the outset it had read and considered all of the reports, it then entertained argument from counsel, and it permitted David's special education attorney to speak at the hearing. (Id. at p. 185, fn. 2.) Furthermore, absent any evidence to the contrary (such as in John F.), it is presumed the court properly exercised its legal duty and considered all appropriate factors. (See Ross v. Superior Court (1977) 19 Cal.3d 899, 913.)
In sum, for all of these reasons, David has failed to demonstrate any abuse of discretion in the juvenile court's order of commitment.
Finally, we also reject David's argument, made in his opening brief, that the juvenile court also abused its discretion in setting the maximum term of confinement for his offense by selecting the upper term of five years (see Pen. Code, § 213, subd. (a)(2)). The juvenile court was statutorily required to select the upper term. (See Welf. & Inst. Code, § 726, subd. (d)(2) [defining "maximum term of imprisonment" in pertinent part as "the longest of the three time periods set forth in paragraph (3) of subdivision (a) of Section 1170 of the Penal Code"].) It had no discretion to do otherwise. (In re Eddie L. (2009) 175 Cal.App.4th 809, 813.) The authorities David cites in his opening brief conferring discretion on the juvenile court to select a lower term are inapposite. They involve commitments to DJF, which are governed by a specific statute that does not apply here. (See Welf. & Inst. Code, § 731, subd. (c); In re Julian R. (2009) 47 Cal.4th 487, 491, 498.) In apparent recognition of the fact those authorities are irrelevant, the argument is not reprised in David's reply brief.
DISPOSITION
The disposition order is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
RICHMAN, Acting P.J. /s/_________
MILLER, J.