In re A.G. CA5 ( 2021 )

Filed 10/7/21 In re A.G. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re A.G., a Person Coming Under the Juvenile
Court Law.
THE PEOPLE , F082101
Plaintiff and Respondent, (Super. Ct. No. 17CEJ600227-3)
v.
OPINION
A.G.,
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Fresno County. Gregory T. Fain,
Judge.
Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Kari
Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Hill, P. J., Levy, J. and Detjen, J.
Minor, A.G., appeals from a disposition order adjudging him a ward of the
juvenile court and committing him to the Department of Corrections and Rehabilitation,
Division of Juvenile Justice (DJJ). On appeal, minor argues that the juvenile court
abused its discretion in committing him to the DJJ because insufficient evidence
supported the court’s conclusion that no less restrictive alternative placement was
suitable. The People disagree. We affirm.
PROCEDURAL SUMMARY
On May 19, 2020,1 the Fresno County District Attorney filed a first amended
juvenile wardship petition (Welf. & Inst. Code, § 602, subd. (a)) alleging minor
committed second degree robbery (Penal Code, § 211;2 count 1), assault with a firearm
(§ 245, subd. (a)(2); count 2), and misdemeanor battery (§ 242; count 3). As to
counts 1 and 2, the petition alleged minor committed the offenses for the benefit of a
criminal street gang (§ 186.22, subd. (b)(1)) and personally used a firearm (§§ 12022.5,
subd. (a), 12022.53, subd. (b)).3
On September 1, minor admitted the truth of count 1 and the related gang
enhancement and the section 12022.5, subdivision (a) firearm enhancement. In
exchange, counts 2 and 3 and the section 12022.53, subdivision (b) firearm enhancement
related to count 1 were dismissed on the People’s motion.
On October 7, the juvenile court held a disposition hearing at which it removed
minor from the custody of his parent, adjudged him a ward of the court, and committed
him to the custody of the DJJ for a period not to exceed 13 years. The court awarded him
145 days of custody credit against that maximum period of confinement.
1 All further dates refer to the year 2020.
2 All further statutory references are to the Penal Code.
3 The section 12022.53, subdivision (b) allegation was made only in relation to
count 1.
2.
On November 18, minor filed a notice of appeal.
FACTUAL SUMMARY4
On May 16, confidential victim 1 (CV1) was camping with his friends and family
near Choinumni Park (the park). CV1, confidential victim 2 (CV2), and confidential
victim 3 (CV3) decided to go fishing. They drove to an area in the park where there was
a body of water. While CV3 was driving, CV1 was playing with a green laser that he
may have shined on people at another campsite. A silver vehicle began following them.
When CV3 pulled the car to the side of the road, five to seven Hispanic males, including
minor, exited the silver vehicle and approached them. One of the males, D.M.—whom
CV1 recognized as a gang member—pointed a black pistol at CV1 and told him to “give
him everything he had.” D.M. then reached into CV1’s pockets and took his red cellular
phone. A second male, C.G.—whom CV1 also recognized as a gang member—pointed a
black pistol at CV1 while D.M. went through his pockets. CV1 called C.G. by his name
and asked him to “ ‘please stop.’ ” Minor approached the passenger side of CV3’s car
and held a gun against CV1’s neck and asked him where he was from. One of the males
then threw a rose gold cellular phone at CV1 and the males, including minor, left.
At some point during the confrontation, minor punched CV2 in the left eye.
CV2 sustained a small cut above his left eyebrow and a lump below his left eye.
At least two of the males pointed a gun at CV3.
At approximately 9:17 p.m., Fresno County Sheriff’s deputies responded to a call
from one of the CVs. The deputies found minor and five other Hispanic males at a
campsite in the park. The deputies located a single firearm at the campsite. CV1, CV2,
and CV3 identified minor, C.G., and D.M.
4 Minor admitted, pursuant to People v. West (1970) 3 Cal.3d 595, that if the trial
court reviewed the police reports it would find a factual basis for count 1. Our factual
summary is therefore drawn from the probation officer’s summary of the police reports.
3.
Minor was interviewed on September 11. He acknowledged that he was under the
influence of alcohol, marijuana, and cocaine during the offense. Minor stated that he did
not remember what had occurred during the offense.
DISCUSSION
A. DJJ Placement
Minor contends the juvenile court abused its discretion in committing him to the
DJJ because suitable less restrictive alternatives were available. Specifically, minor
contends he should have been committed to a drug rehabilitation program or some “other
less restrictive program[] designed to address any remaining criminal street gang
affiliation concerns.” The People disagree, as do we.
1. Additional Background
At the October 7 disposition hearing, minor presented an alternative account of the
facts of the offense.5 Minor contended that he was at a family gathering with small
children present when a vehicle drove past at low speed and shined a laser at their
campsite. Minor and two friends followed the vehicle because they believed that the
occupants may have pointed firearms at them, and they were concerned about the safety
of the children at the campsite. The probation officer noted that minor’s account of the
offense was inconsistent with the facts alleged in the police reports.
After hearing the parties’ arguments, the juvenile court noted that it had heard the
parties’ arguments regarding the facts of the case but concluded that minor had engaged
in serious conduct that posed “a big danger to the public.” The court then summarized
the reasons for its conclusions that less restrictive alternative placements were not
suitable and that DJJ placement would benefit minor. First, in 2018, minor pointed a
handgun at a victim’s face and said “ ‘Get the F out of here or you’re going to be shot.’ ”
5 Minor’s counsel also presented a similar account in a sentencing memorandum
provided to the court.
4.
Instead of committing minor to the DJJ in that instance, minor was committed to the
New Horizons program. The court noted that the New Horizons program was the longest
available local program and was the “most extensive in terms of services provided.” In
that program, minor did “[six] weeks of quitting marijuana, 82 hours of alcohol and drug
education, 11 hours of family therapy, 29 hours of family awareness group, 320 hours of
group therapy, 41 weeks of individual therapy, … and 24 hours of anger management.”
Shortly after he was released from that program, minor committed the present offense.
The court therefore concluded that minor had already received extensive substance abuse
counseling and programming, so placement in a six-month substance abuse unit treatment
program or re-placement in the New Horizons program would not be appropriate
placements.
Second, the juvenile court reviewed the reformatory and treatment programs
available at the DJJ. It explained that minor had admitted being under the influence of
multiple substances on the date of the present offense. It further noted that minor needed
interventions for his gang involvement and traumas. It found that the “DJJ ha[d] a great
substance abuse treatment program[,] … [and] a number of programs that address[ed]
[minor’s] gang and trauma [issues][,]” including a cognitive behavioral intervention for
substance abuse, a 10-week aggression interruption training, and the Counterpoint
program.6 The court also noted that minor had obtained a high school diploma and minor
had expressed interest in learning career training, specifically a welding program. The
DJJ career technical education program offered an opportunity to receive career technical
6 The probation officer’s report, which the juvenile court examined, explained that
the Counterpoint program is a 33-session cognitive behavioral program for male
offenders designed to reduce reoffending behavior, and also specifically identified the
trauma-focused cognitive behavioral treatment program as a program that would benefit
minor.
5.
education. For those reasons, the court concluded that there was substantial evidence that
minor would benefit from DJJ placement.
2. Analysis
We review a juvenile court’s commitment decision for abuse of discretion. (In re
A.R. (2018) 24 Cal.App.5th 1076, 1080 (A.R.).) In reviewing a decision for abuse of
discretion, we make all reasonable inferences in support of the trial court’s determination.
(Ibid.) “ ‘A DJJ commitment is not an abuse of discretion where the evidence
demonstrates a probable benefit to the minor from the commitment and less restrictive
alternatives would be ineffective or inappropriate.’ ” (Ibid.)
“ ‘Although the DJJ is normally a placement of last resort, there is no absolute rule
that a DJJ commitment cannot be ordered unless less restrictive placements have been
attempted.’ ” (A.R., supra, 24 Cal.App.5th at pp. 1080–1081; accord, In re Eddie M.
(2003) 31 Cal.4th 480, 507; In re Carlos J. (2018) 22 Cal.App.5th 1, 6 [“A juvenile court
may properly consider ‘a restrictive commitment as a means of protecting the public
safety.’ ”].) “A juvenile court must determine if the record supports a finding that it is
probable the minor will benefit from being committed to DJJ.” (In re Jonathan T. (2008)
166 Cal.App.4th 474, 486.) There is no requirement that the court expressly find exactly
how a minor will benefit from the commitment. (Ibid.) Nor must the juvenile court
expressly state on the record its reasons for rejecting less restrictive placements. (In re
Nicole H. (2016) 244 Cal.App.4th 1150, 1159.) But the record must contain some
evidence that the court concluded DJJ placement would benefit the minor and
appropriately considered and rejected reasonable alternative placements. (A.R., supra,
24 Cal.App.5th at pp. 1080–1081; Nicole H., supra, 244 Cal.App.4th at p. 1159;
Jonathan T., supra, 166 Cal.App.4th at p. 486.)
In reviewing a commitment determination, we remember that “the primary goal
behind maintaining separate courts and procedures for adults and minors is to ensure that
juvenile offenders who have not yet become hardened criminals receive treatment and
6.
rehabilitation.” (In re Carlos E. (2005) 127 Cal.App.4th 1529, 1542.) That goal is
reflected in the mandate that juvenile courts consider “the protection of the public as well
as the rehabilitation of the minor” in reaching a disposition. (Ibid.) The court is required
to “consider ‘the broadest range of information’ in determining how best to rehabilitate a
minor and afford him adequate care.” (In re Robert H. (2002) 96 Cal.App.4th 1317,
1329.)
Here, the juvenile court considered minor’s previous placement and his serious
reoffending behavior soon after being released from that placement. It considered that
minor’s previous placement had been the longest local placement and that it had involved
extensive programming and drug treatment. On that record, the court concluded that
non-DJJ placement options would not be appropriate to meet minor’s needs.
Next, the juvenile court considered the programs available to minor at the DJJ,
including a drug treatment program, cognitive behavioral programs designed to reduce
offending behavior, and educational programs. The court found that, based on minor’s
needs, those programs would benefit him.
In short, the record contains evidence that less restrictive alternative placements
were considered and reasonably rejected, and that minor would benefit from DJJ
placement. We find no abuse of discretion.
Minor contends that the juvenile court’s conclusion failed to adequately consider
minor’s account of the offense. Specifically, he contends that the trial court should have
considered that he acted “as a defender of others, and not as an unprovoked aggressor.”
The trial court expressly noted that it had considered minor’s version of the offense.
Nevertheless, it concluded that minor had engaged in a serious offense that posed a
serious risk to the public. The trial court gave adequate consideration to minor’s
argument and version of the events. We find no merit to minor’s conclusion that the trial
court erred in not giving sufficient weight to his account of the offense.
7.
DISPOSITION
The order is affirmed.
8.