Opinion
F061286 Super. Ct. No. 04JQ0129F
12-09-2011
In re LARRY M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. LARRY M., Defendant and Appellant.
Arthur L. Bowie, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Levy, Acting P.J., Kane, J., and Poochigian, J.
APPEAL from a judgment of the Superior Court of Kings County. George L. Orndoff, Judge.
Arthur L. Bowie, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Deputy Attorneys General, for Plaintiff and Respondent.
Following a contested jurisdiction hearing, the juvenile court found true an allegation set forth in a juvenile wardship petition (Welf. & Inst. Code, § 602) that appellant, Larry M., a minor, committed an assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). Following the subsequent disposition hearing, the court readjudged appellant a ward of the court, declared the instant offense to be a felony, ordered appellant committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF), formerly known as the California Youth Authority (CYA), and, based on the instant offense and offenses adjudicated in prior wardship proceedings, declared appellant's maximum period of physical confinement to be 19 years 7 months.
Except as otherwise indicated, all statutory references are to the Welfare and Institutions Code.
As discussed more fully below, appellant was initially adjudged a ward of the court in 2004 and, prior to the instant adjudication, readjudged a ward five more times in subsequent wardship proceedings.
On appeal, appellant contends (1) the evidence was insufficient to support the instant adjudication, and (2) the court abused its discretion in ordering appellant committed to DJF. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Instant Offense
Javier G. (Javier) testified to the following. On August 7, 2010, he was at a party with his brother, sister and girlfriend. At one point, the two girls got up to go to the bathroom and two "guys" approached "to take the chairs" the girls had been sitting in. Javier told them the chairs were "saved." Initially, there was no dispute, but at some point an argument ensued, and shortly after that, and after the two girls had returned and Javier said to them and his brother "let's go," several people, including appellant, "came after" Javier and his companions. Appellant "rushed at" Javier and hit him "[r]ight here in [the] eye," one time, with "[a] fist." Javier's eye was "bleeding" and "injured." He went to a nearby hospital where he was treated with "four stitches in the eye[.]" His "face" was "swollen" and he had a "black eye." By the time of the jurisdiction hearing on September 3, 2010, he had a "bad scar" on his "eyelid" but he had otherwise "healed completely."
On cross-examination, Javier reiterated that appellant was the only person who hit him. Later, in cross-examination, he indicated that someone else hit him first, "by [his] eyes on [his] cheek," and that appellant "later" hit him "[i]n the same place." Still later, he testified that he did not tell the investigating police officer he got hit twice "[b]ecause [he] got hit once and [he] couldn't see" because he had "too much blood in [his] eye." A moment later, on redirect examination, he testified to the following. "One or two [persons hit him in the face]. I could not see. I had too much blood in my eye." He did not know who hit him in the face "first." Appellant hit him "second." He started to bleed when he was hit the first time. When hit the second time, his eye "swelled up like a bruise. It swelled up."
Juan G. (Juan), Javier's brother, testified to the following. He was present at the party on August 7, 2010, "right before the fight started." He saw appellant hit Javier, "and then ... Ralph [took] a swing at [Javier]." Juan was "not sure" if Ralph struck Javier. Juan saw no "injuries on [Javier]" before appellant hit him, but after appellant hit Javier, Javier's "left eye was split." Javier was not hit before appellant hit him.
Reyna G. (Reyna), Javier's sister, testified to the following. She was at the party with Javier on August 7, 2010. She saw appellant hit Javier "right here in the eye." She saw no "injuries on [Javier's] face" before appellant hit him. After hitting Javier the first time, appellant "just kept on hitting him," "probably four times." Prior Contact with the Juvenile Justice System
Information in the remainder of our "Factual and Procedural Background" section is taken from the report of the probation officer (RPO).
Appellant was initially adjudged a ward of the court in 2004, when he was just over a month shy of his twelfth birthday, for committing felony first degree burglary. He was committed to the Kings County Juvenile Center (KCJC). He was readjudged a ward in 2005, for committing his first felony violation of Penal Code section 245, subdivision (a)(1), and he was again committed to the KCJC. Appellant and his co-participants "trapped the victim against the fence and struck him numerous times with closed fists," and when the victim fell to the ground appellant kicked him. Appellant was next readjudged a ward in 2006 for fighting in public (Pen. Code, § 415, subd. (1)), a misdemeanor, and was again committed to the KCJC. He was again readjudged a ward in 2007, for violating his probation by testing positive for marijuana, committing a curfew violation, and being under the influence of alcohol and for committing misdemeanor vandalism (Pen. Code, § 594, subd. (a)). He was committed to the "ALPHA PROGRAM." He was readjudged a ward yet again in 2008, for committing two felonies: his second Penal Code section 245, subdivision (a)(1) violation and a robbery (Pen. Code, § 211), which was committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(C)). Appellant and several others "beat the victim ... with sticks and closed fists." When the victim was knocked to the ground, appellant "took money from the victim's pocket." He was committed to the Bravo boot camp program. Appellant was next readjudged a ward a sixth time in 2009 for violating his probation. He "was involved in a physical altercation with a female while at school. Both yelled racial and gang slurs at each other." He was again committed to the Bravo boot camp program. Prior to the instant case, appellant was adjudged a ward of the juvenile court a total of seven times.
The RPO indicates the Alpha and Bravo programs are boot camp programs. We will refer to these programs as such.
In addition, prior to 2004, appellant had three contacts with the juvenile justice system which did not result in adjudications of wardship. In 2001, he was charged with fighting in public, for which he received a warning. He and several others "battered the victim by repeatedly kicking him and striking him with closed fists." In 2002, he burglarized and vandalized an elementary school. He was ordered to pay $285 in restitution. And in 2003, he "stole a bicycle from a nearby residence." He was ordered to perform 16 hours of community service, pay restitution of $65.00, and write a letter of apology.
In 2008, appellant received a warning after he and several others went to the victim's home "and began knocking on his living room window telling him to come out so they could take care of him."
Additional Background
Appellant was 17 years old at the time of the instant offense. He admitted to the probation officer that he "associates with the Crip gang and has done so since the age of 9." He also reported that "he started smoking marijuana at age 13 and consumed alcohol a few times at age 15."
Probation Officer's Conclusions
The probation officer specifically considered and rejected KCJC and group home placements as appropriate dispositions. The officer opined: "Previous rehabilitative efforts made by the Kings County Probation Department and Juvenile Court. have included warnings, performance agreements, restitution, [w]ardship, probation supervision, fines and fees, numerous commitments to [KCJC] and boot camp programs."
DISCUSSION
Sufficiency of the Evidence
As indicated above, appellant contends the evidence was insufficient to support his adjudication of the instant aggravated assault. Implicitly conceding that the evidence was sufficient to establish that appellant assaulted the victim, he argues that the evidence was insufficient to establish he committed the assault by "means of force likely to produce great bodily injury," within the meaning of Penal Code section 245, subdivision (a)(1). We disagree. A. Standard of Review
In determining whether the evidence is sufficient to support a juvenile court finding that a minor has committed a criminal offense, the reviewing court is bound by the same principles as to sufficiency and the substantiality of the evidence which govern the review of criminal convictions generally. (In re Roderick P. (1972) 7 Cal.3d 801, 809.) Those principles include the following:
"It is the prosecution's burden in a criminal case to prove every element of a crime beyond a reasonable doubt." (People v. Cuevas (1995) 12 Cal.4th 252, 260-261.) The appellate court, to determine whether the prosecution has introduced sufficient evidence to meet this burden, must determine "'whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.' [Citations.]" (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) In making this determination, "'we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] ... We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.'" (People v. D'Arcy (2010) 48 Cal.4th 257, 293.)
"[W]e do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact." (People v. Stewart (2000) 77 Cal.App.4th 785, 790.) "To warrant the rejection of the statements given by a witness who has been believed by the [trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions." (People v. Barnes (1986) 42 Cal.3d 284, 306, internal quotation marks omitted.) "Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment." (People v. Cantrell (1992) 7 Cal.App.4th 523, 538, internal quotation marks omitted.) B. Assault "By Any Means of Force Likely to Produce Great Bodily Injury ."
Penal Code section 245, subdivision (a)(1) prohibits an assault "by any means of force likely to produce great bodily injury." Whether or not the force used was likely to produce great bodily injury is a question of fact based on all the evidence. (People v. Chavez (1968) 268 Cal.App.2d 381, 384.) "Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate." (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066.) And "'While it is true that "when the evidence shows that a blow has been struck or a physical injury actually inflicted, the nature and extent of the injury is a relevant and often controlling factor in determining whether the force used was of a felonious character" [citations], an injury is not an element of the crime, and the extent of any injury is not determinative. ". The issue, therefore, is not whether serious injury was caused, but whether the force used was such as would be likely to cause it." [Citations.]'" (People v. Roberts (1981) 114 Cal.App.3d 960, 965; accord, In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161-1162 ["The essential determination is whether the force was likely to produce great bodily injury rather than the actual injury incurred"].) If, however, injury is inflicted, it may be considered in connection with other evidence to determine if the assault was of the sort likely to cause great bodily injury. (People v. Beasley (2003) 105 Cal.App.4th 1078, 1087.) Thus, in People v. Hahn (1956) 147 Cal.App.2d 308 (Hahn), the court found sufficient evidence of aggravated assault under a previous version of Penal Code section 245—which, like Penal Code section 245, subdivision (a)(1), prohibited assault by means of force likely to produce great bodily injury—where the defendant struck the victim on the head four times with a beer can. The victim never lost consciousness and the cuts on his head did not require sutures or follow-up treatment. (Hahn, at pp. 309-311.) The court explained: "While the wounds on [the victim's] head did not appear to be incurable, they were such as to require medical attention and because life-long nervous disorders are known to have resulted from no more violence than was applied to [the victim], it required no great strain of the deductive processes to infer that the force used upon him was 'likely to produce great bodily injuries.'" (Id. at p. 312.)
"The force likely to produce great bodily injury can be found where the attack is made by use of hands or fists. [Citation.] Whether a fist used in striking a person would be likely to cause great bodily injury is to be determined by the force of the impact, the manner in which it was used and the circumstances under which the force was applied. [Citation.]" (People v. McDaniel (2008) 159 Cal.App.4th 731, 748-749; see also Hahn, supra, 147 Cal.App.2d at p. 311 ["A conviction under ... section [245(a)(1)] may be had where the defendant used only his fist if the circumstances of the assault and the manner of its execution warrant the jury in finding that the force used was likely to produce great bodily injury"] Gonns v. United States (10th Cir. 1956) 231 F.2d 907, 908 [assault by means of force likely to produce great bodily injury "may be committed by striking with the hand or fist, kicking, choking, or other comparable means"].) C. Analysis
A major premise of appellant's challenge to the sufficiency of the evidence is that because (1) Javier testified appellant struck him only once, and (2) the other witnesses—Javier's siblings, Reyna and Juan—who testified that appellant hit Javier multiple times were biased in favor of the People, the evidence was sufficient to establish that appellant hit the victim only once. We disagree. Under the principles of appellate review summarized above, the court reasonably could have credited the testimony that appellant delivered multiple blows to appellant's face. However, even assuming for the sake of argument that appellant hit Javier in the area of the eye only once, and assuming further for the sake of argument that the laceration Javier suffered which required four sutures can be characterized, as appellant asserts, as "small," his claim still fails.
There is no dispute appellant struck the victim with a closed fist in the area of the victim's eye, and with enough force to cause bleeding, swelling, bruising, a scar and a laceration requiring sutures. The eye is a vulnerable, delicate and vital organ, and although in this instance Javier was fortunate enough to escape serious injury, the court reasonably could have concluded that appellant landed at least one blow with enough force to seriously damage, even put out, the eye. On this record, "the circumstances of the assault and the manner of its execution warrant the [trier of fact] in finding that the force used was likely to produce great bodily injury." (Hahn, supra, 147 Cal.App.2d at p. 311.)
Commitment to DJF
Appellant contends the court abused its discretion in ordering DJF commitment. We disagree.
Commitment to DJF requires a two-part showing. First, "it is required that there be evidence in the record demonstrating probable benefit to the minor ...." (In re Teofilio A. (1989) 210 Cal.App.3d 571, 576; accord, In re Pedro M. (2000) 81 Cal.App.4th 550, 556.) Second, there must be "evidence supporting a determination that less restrictive alternatives are ineffective or inappropriate." (In re Teofilio A., at p. 576.) An appellate court will not lightly substitute its judgment for that of the juvenile court, but rather must indulge all reasonable inferences in favor of the decision and affirm the decision if it is supported by substantial evidence. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396; In re Asean D. (1993) 14 Cal.App.4th 467, 473 (Asean D.).) "In determining whether there was substantial evidence to support the commitment, we must examine the record presented at the disposition hearing in light of the purposes of the Juvenile Court Law.'" (In re Carl N. (2008) 160 Cal.App.4th 423, 432 (Carl N.).)
"The statutory declaration of the purposes of the juvenile court law is set forth in section 202. [Citation.] Before the 1984 amendment to section 202, California courts consistently held that '"[j]uvenile commitment proceedings are designed for the purposes of rehabilitation and treatment, not punishment."' [Citation.] California courts treated a commitment to CYA as 'the placement of last resort' for juvenile offenders. [Citation.]" (Carl N., supra, 160 Cal.App.4th at p. 432.)
"However, '[i]n 1984, the Legislature replaced the provisions of section 202 with new language which emphasized different priorities for the juvenile system.' [Citation.] Section 202, subdivision (b) (hereafter section 202(b)) now recognizes punishment as a rehabilitative tool. [Citation.] That subdivision provides in part: 'Minors under the jurisdiction of the juvenile court who are in need of protective services shall receive care, treatment, and guidance consistent with their best interest and the best interest of the public. Minors under the jurisdiction of the juvenile court as a consequence of delinquent conduct 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. This guidance may include punishment that is consistent with the rehabilitative objectives of this chapter.' (§ 202(b), italics added.)" (Carl N., supra, 160 Cal.App.4th at p. 432; accord, In re Lorenza M. (1989) 212 Cal.App.3d 49, 57 (Lorenza M.)[section 202 "now recognizes punishment as a rehabilitative tool and emphasizes the protection and safety of the public"].)
'"Section 202 also 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.]' [Citation.] 'Thus, it 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.' [Citation.] It is also clear, as the Court of Appeal recognized in [Asean D., supra, 14 Cal.App.4th at p. 473], that a commitment to CYA 'may be made in the first instance, without previous resort to less restrictive placements.'" (Carl N., supra, 160 Cal.App.4th at pp. 432-433.)
"'[T]his interpretation by no means loses sight of the "rehabilitative objectives" of the Juvenile Court Law. [Citation.] Because commitment to CYA cannot be based solely on retribution grounds [citation], there must continue to be evidence demonstrating (1) probable benefit to the minor and (2) that less restrictive alternatives are ineffective or inappropriate. However, these must be taken together with the Legislature's purposes in amending the Juvenile Court Law.' [Citation.]" (Carl N., supra, 160 Cal.App.4th at p. 433.)
Appellant argues as follows: the "facts and circumstances" of the instant offense indicate that appellant "should have been given the opportunity . to prove that he could be rehabilitated at the local level"; DJF commitment "does not serve any of the purposes of the juvenile court law, other than punishment"; rather than "addressing" appellant's "problems," DJF commitment "is more likely to exacerbate them"; appellant received no rehabilitative services while detained in juvenile hall prior to and during the jurisdiction hearing; and past efforts to rehabilitate appellant have not been a "'complete failure,'" as evidenced by the fact that he did not commit any crimes during the time he was free of custody pending his disposition hearing and "for the better part of a year" preceding the instant offense. As best we can determine, appellant contends these factors establish that the evidence was insufficient to establish that alternatives less restrictive than DJF would be ineffective or inappropriate. We disagree. For several reasons, we conclude there was ample evidence supporting the conclusion that a disposition less restrictive than DJF commitment would be ineffective or inappropriate because a placement less restrictive than the DJF would not be adequate to hold appellant accountable for his actions and/or provide for the safety and protection of the public.
On September 10, 2010, at the conclusion of the second day of the jurisdiction hearing, the court released appellant into the custody of his mother and continued the hearing to September 16, 2010. It appears appellant remained in his mother's custody through the conclusion of the disposition hearing, on October 22, 2010.
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First, appellant stands adjudicated in the instance case of a serious, violent crime. (In re Samuel B. (1986) 184 Cal.App.3d 1100, 1104, overruled on other grounds in People v. Hernandez (1988) 46 Cal.3d 194, 206, footnote 14 [in determining disposition of juvenile offender, "gravity of the offense is always a consideration with other factors"]; § 725.5 [factors to consider in determining appropriate disposition include "the circumstances and gravity of the offense committed by the minor"].) Second, he has a long history of delinquent and violent conduct, including four felonies, three of which involved acts of violence. Third, he has failed to reform despite numerous rehabilitative efforts, including juvenile hall commitment, probation, and juvenile boot camp. Finally, appellant admits associating with a criminal street gang since he was nine years old and he has suffered an adjudication of a gang-related robbery. (Cf. In re John H. (1978) 21 Cal.3d 18, 27 [CYA commitment upheld based in part on minor's gang involvement]; In
re Sergio R. (1991) 228 Cal.App.3d 588, 602-603 [CYA commitment upheld based in part on minor's gang involvement].)
Appellant also contends the evidence was insufficient to establish that DJF commitment would be of probable benefit. This argument presents a much closer question.
No doubt, appellant is in need of counseling and other services. For example, the record shows that appellant has a long history of gang involvement, he has used marijuana and alcohol, and during a disposition hearing in a prior proceeding in 2009, he told the court he thought he could benefit from anger management counseling. Nonetheless, the record here is devoid of evidence that there are services offered at the DJF that could address these areas of concern. Indeed, the People presented no evidence that DJF provides any services, and the RPO fails to provide any analysis as to how, or even if, appellant might benefit from DJF commitment.
However, as indicated above, appellant stands adjudicated of a violent offense in the instant case, and that offense was preceded by his commission of multiple felonies, several of which involved violence, to which authorities responded with a variety of less restrictive measures. As indicated above, the Juvenile Court Law recognizes punishment as a "rehabilitative tool." (Lorenza M., supra, 212 Cal.App.3d at p. 57.) On this record, the juvenile court reasonably could have concluded appellant was in need of the kind of "guidance" that comes with "punishment that is consistent with the rehabilitative objectives of [the Juvenile Court Law]" (§ 202, subd. (b)) and that DJF commitment could provide that guidance. Thus, the evidence was sufficient, although barely so, to establish it was probable that DJF commitment would benefit appellant.
Appellant also contends the court abused its discretion in ordering DJF commitment because, he asserts, the probation officer and the court failed to consider alternative dispositions less restrictive than DJF commitment. We disagree.
In In re Ricky H. (1981) 30 Cal.3d 176, the minor, challenging his commitment to CYA, argued "that the superior court did not give adequate consideration to less restrictive placement alternatives. Specifically, the social study lacked data regarding specific alternative placements. The court failed to respond to counsel's argument that the local youth center would be a more appropriate placement. [The minor] assert[ed] that the court had a duty to actively inquire as to the suitability of less restrictive placements ...." (Id. at p. 182.) Our Supreme Court rejected this argument; the court stated, "It is true that the lack of such a statement [of reasons for CYA commitment] makes appellate review of the superior court's exercise of discretion more difficult and uncertain [citation], but the absence of inquiry does not establish that the superior court failed to consider other placements." (Id. at p. 184, emphasis added.) Thus, as this court stated in In re Teofilio A., supra, 210 Cal.App.3d at p. 577, the court in Ricky H. "noted[] [that] if there is evidence in the record to show a consideration of less restrictive placements was before the court, the fact the judge does not state on the record his consideration of those alternatives and reasons for rejecting them will not result in reversal." (In re Teofilio A. at p. 577, italics added.)
Here, the RPO specifically mentioned KCJC and group home placement as less restrictive alternatives that were considered and rejected. In addition, the RPO lists the various dispositions that had been tried but had not resulted in curbing, much less putting an end to, appellant's criminal behavior, including warnings, probation supervision, boot camp and appellant's many KCJC commitments. Thus, the record shows that the possibility of less restrictive dispositions was before the court. No more is required to establish the court considered such dispositions. (In re Ricky H., supra, 30 Cal.3d at p. 184.) Indeed, at the disposition hearing the court told appellant, "You've served way too much time in juvenile hall already. There's nothing left in juvenile hall that's going to do you any good.... [T]here comes a point where how much time can you spend in juvenile hall and expect to get any kind of a good result. So whatever it is you need we aren't able to provide it here." The record shows that the court carefully considered the record and the argument of counsel before concluding that a disposition less restrictive than DJF commitment would be ineffective and/or inappropriate. In ordering appellant committed to DJF, the court acted well within its discretion.
DISPOSITION
The judgment is affirmed.