Opinion
A145679 A146300
01-10-2017
In re A.T., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.T., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J05-00646)
Seventeen-year-old A.T. was committed to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ) after he was found to have committed assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), assault by force likely to cause great bodily injury (id., § 245, subd. (a)(4)), and two counts of resisting an executive officer (id., § 69). On appeal, A.T. asserts the juvenile court made jurisdictional findings unsupported by substantial evidence, abused its discretion by committing him to DJJ and denying his motion to reduce the offenses to misdemeanors, and failed to exercise its discretion to set a maximum term of confinement below the adult maximum term. We disagree and affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
A.T. has a troubled history. Prior to the instant proceedings, A.T. was a dependent of the juvenile court (Welf. & Inst. Code, § 300). In addition to emotional disturbance and other learning disabilities, A.T. was diagnosed with mood, conduct, posttraumatic stress, and attention deficit hyperactivity disorders. He received special education services, pursuant to an individualized education program (IEP), since he was in first grade.
Undesignated statutory references are to the Welfare and Institutions Code.
In February 2015, the Contra Costa County District Attorney filed a third supplemental wardship petition (§ 602) alleging A.T. committed assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), assault by force likely to produce great bodily injury (id., § 245, subd. (a)(4)), two counts of resisting an executive officer (id., § 69), and vandalism (id., § 594, subd. (b)(2)(A)). The petition further alleged A.T. had a prior misdemeanor battery adjudication (id., § 242) and a prior misdemeanor assault with a deadly weapon adjudication (id., § 245, subd. (a)(1)), which could increase his commitment time. A.T. was found ineligible for deferred entry of judgment and was detained in juvenile hall pending further proceedings.
The record of these earlier section 602 proceedings is not before us. The probation report indicates A.T. was on nonwardship formal probation at the time he committed the instant offenses. (§ 725, subd. (a).)
The evidence from the contested jurisdictional hearing, viewed in the light most favorable to the judgment establishes the following. In February 2015, A.T. was a student at the nonpublic La Chiem School for "mental health day treatment" and lived in a group home. On the morning of February 25, La Chiem's director of student services, Julia P., heard loud music in the hallway outside her office. She found A.T. listening to loud music on his phone. Julia asked A.T. to turn over his phone, but he was "defiant," and instead increased the volume. Julia suggested to A.T. it might be best if he returned to his group home for the remainder of the school day. She telephoned the group home director to retrieve A.T. Meanwhile, A.T. barricaded two classroom doors shut, using two metal park benches. When Julia informed A.T. that the group home director was en route, A.T. became more defiant and agitated.
A.T. removed a metal slat or rod from one of the benches and, holding it like a baseball bat, began swearing at Julia, walking towards her, and threatening to hit her with the metal rod. Julia testified: "I don't remember [A.T.'s] exact words, but the implication was he was going to hit me with the long metal slat from the park bench." A.T. was "[e]xtremely angry and irrational." A.T. was about 15 to 20 feet away when he began threatening her. Julia turned and walked towards her office, unlocked the door, and began to close it behind her. She could hear A.T. following quickly behind her and, while the office door remained partially open but was closing, A.T. "took a full swing" with the metal slat. Instead of hitting Julia, the blow struck and reverberated through the wooden door.
Julia went to speak with La Chiem's mental health director, who worked in an internally adjoining office. Initially, they decided to wait for the group home director. But when A.T. stuck the rod through the mail slot in the door and acted as if he might throw it like a spear, they decided to contact the police. Julia called 911 and told the dispatcher what was happening.
Deputies Russell Lewis and Thomas Long, from the Contra Costa County Sheriff's Department, responded in full uniform to a 911 dispatch regarding an "uncontrollable juvenile" who "had some type of a rod and was swinging it around." Upon arriving at the school, Lewis and Long saw A.T. banging a rod on the ground. Long asked A.T. to drop the rod. A.T. responded, "Come on. What are you going to do about it?" A.T., who seemed "really agitated," ran away.
Lewis described the rod as "some type of metal box tubing" that was four feet long and weighed about two pounds.
After A.T. was found in a different area of the school, Lewis described him as "upset," screaming, and waving the rod over his head. Lewis and Long asked A.T. several times to drop the rod, but A.T. did not comply. A.T. began to walk away, but Lewis grabbed and tossed the rod. Lewis attempted to place A.T. in a "control hold." A.T., who was approximately the same weight and height as Lewis and "pretty strong," continued to pull away, kick, and resist. Lewis tackled him. A.T. also refused to comply with Lewis's order to lay on his stomach. A.T. said, "[y]ou're going to have to kill me to get me to do what you say." Long observed Lewis straddling A.T., who was thrashing and kicking, as Lewis attempted to handcuff him. Long attempted to restrain A.T.'s upper body. Before they were able to roll A.T. over and handcuff him, A.T. punched both deputies. The deputies responded, in an attempt to end the struggle, by punching A.T. and kneeing him in the face. After being handcuffed, A.T. screamed, "I will fucking kill you." A.T. suffered a swollen eye and a bloodied ear. Long suffered jaw soreness and a cut on his finger.
At the conclusion of the evidence, the juvenile court sustained all counts except the vandalism charge, which was dismissed for insufficient evidence. Defense counsel moved to dismiss the petition in the interests of justice, because A.T.'s conduct was purportedly caused by his emotional and learning disabilities, as well as La Chiem's failure to implement his IEP. In the alternative, A.T. asked that the sustained felonies be reduced to misdemeanors, pursuant to section 702. The juvenile court denied both motions. However, the court said A.T.'s "rather extensive needs" were relevant to disposition and ordered the probation department to conduct "an exhaustive review of any high level placements in California" or out-of-state.
"A judge of the juvenile court in which a petition was filed may dismiss the petition, or may set aside the findings and dismiss the petition, if the court finds that the interests of justice and the welfare of the person who is the subject of the petition require that dismissal, or if it finds that he or she is not in need of treatment or rehabilitation. . . ." (§ 782.)
On August 25, 2015, the juvenile court declared A.T. a ward of the court and initially ordered his commitment to DJJ for a term not to exceed six years and seven months. A.T.'s commitment order was later amended to impose no custodial time on the assault with a deadly weapon count, pursuant to Penal Code section 654. A.T.'s maximum term was corrected to five years and eight months, with credit for 279 days served. A.T. filed a timely notice of appeal.
A.T. filed a premature notice of appeal from the jurisdictional findings and order (appeal No. A145679). "[T]he 'judgment' in a juvenile court proceeding is the order made after the trial court has found facts establishing juvenile court jurisdiction and has conducted a hearing into the proper disposition to be made." (In re Mario C. (2004) 124 Cal.App.4th 1303, 1307, italics added.) Accordingly, we later consolidated appeal No. A145679 with A.T.'s notice of appeal from the dispositional order (No. A146300). (§ 800, subd. (a); Cal. Rules of Court, rule 8.406(d) ["[a] notice of appeal is premature if filed before the judgment is rendered or the order is made, but the reviewing court may treat the notice as filed immediately after the rendition of judgment or the making of the order"].)
II. DISCUSSION
A.T. maintains the juvenile court (1) made jurisdictional findings unsupported by substantial evidence; (2) abused its discretion by denying his section 702 motion to reduce the offenses to misdemeanors; (3) abused its discretion by committing him to DJJ; and (4) failed to exercise its discretion to set a maximum term of confinement below the adult maximum term. Anticipating an argument his fourth averment of error was forfeited, A.T. insists his defense counsel was ineffective. We disagree and affirm. A. Substantial Evidence
A.T. first challenges the juvenile court's true findings on all four sustained counts, asserting the findings are unsupported by substantial evidence. When faced with a substantial evidence challenge, we "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 318-319; In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) "[O]ur perspective must favor the judgment. [Citations.] 'This court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] If the circumstances reasonably justify the trial court's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. [Citations.] The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact; it is not whether guilt is established beyond a reasonable doubt. [Citation.] [¶] Before the judgment of the trial court can be set aside for insufficiency of the evidence . . . , it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it.' " (Ryan N., at p. 1372.)
"By definition, 'substantial evidence' requires evidence and not mere speculation." (People v. Cluff (2001) 87 Cal.App.4th 991, 1002, italics omitted.) Nor is "substantial" evidence synonymous with " ' "any" ' " evidence. (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681, fn. 3.) However, "the direct testimony of a single witness is sufficient to support a finding unless the testimony is physically impossible or its falsity is apparent 'without resorting to inferences or deductions.' [Citations.] Except in these rare instances of demonstrable falsity, doubts about the credibility of the in-court witness should be left for the [fact finder]'s resolution." (People v. Cudjo (1993) 6 Cal.4th 585, 608-609.)
1. Assault Counts
A.T. initially challenges the sufficiency of the evidence supporting the true findings on the assault with a deadly weapon and assault with force likely to produce great bodily injury counts. His argument rests largely on the mistaken assumption the People were required to show he specifically intended to injure Julia. There is no failure of proof.
The juvenile court found A.T. committed assault by force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)) and assault with a deadly weapon (id., § 245, subd. (a)(1)). The court explained: "I thought all of the witnesses testified credibly. . . . [Julia] described exactly what [A.T.] was doing and what his demeanor was as he was holding what she described as a slat. . . . [S]he described how he held it essentially like a baseball bat with one fist on top of the other, and using profanity stating that he was going to hit her with that. And she heard the verbal abuse continue and him walking toward her, in her words quickly, as she turned to walk directly to the office where she was able to open the door, thankfully, get herself in, and as she's pulling it shut from inside, it was struck. The door was struck by [A.T.] with such force in that in her words the whole thing shook, the door, her arms, her whole body. And that, quite frankly, is very telling, and evidences the amount of force, as well as [A.T.'s] intent, as he was swinging, threatening, and then did indeed use this item as a very dangerous deadly weapon, and did apply such force that it would indeed inflict great bodily injury."
Penal Code section 245, subdivision (a)(4), " 'prohibits an assault by means of force likely to produce great bodily injury, not the use of force which does in fact produce such injury. While . . . the results of an assault are often highly probative of the amount of force used, they cannot be conclusive.' [Citation.] '[T]he question of whether or not the force used was such as to have been likely to produce great bodily injury, is one of fact for the determination of the [fact finder] based on all the evidence, including but not limited to the injury inflicted.' " (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1065-1066, italics omitted.) It is well established that "[o]ne may commit an assault without making actual physical contact with the person of the victim; because the statute focuses on . . . force likely to produce great bodily injury, whether the victim in fact suffers any harm is immaterial." (People v. Aguilar (1997) 16 Cal.4th 1023, 1028 (Aguilar) [construing former Pen. Code, § 245, subd. (a)(1)].) "Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate." (Armstrong, at p. 1066.)
The Aguilar court also articulated the standard for determining whether an object is a deadly weapon within the meaning of Penal Code section 245, subdivision (a)(1). As used in that subsection, "a 'deadly weapon' is 'any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.' [Citation.] Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such. [Citation.] Other objects, while not deadly per se, may be used, under certain circumstances, in a manner likely to produce death or great bodily injury. In determining whether an object not inherently deadly or dangerous is used as such, the trier of fact may consider the nature of the object, the manner in which it is used, and all other facts relevant to the issue." (Aguilar, supra, 16 Cal.4th at pp. 1028-1029.) "[T]he [fact-finder]'s decisionmaking process in an aggravated assault case . . . is functionally identical regardless of whether, in the particular case, the defendant employed a weapon alleged to be deadly as used or employed force likely to produce great bodily injury; in either instance, the decision turns on the nature of the force used." (Id. at p. 1035.)
A.T. concedes proof of injury or even physical contact is unnecessary. (In re Brandon T. (2011) 191 Cal.App.4th 1491, 1497.) Even if an injury does not occur, courts will affirm convictions for assault with a deadly weapon when "a defendant's action enabl[es] him to inflict a present injury." (People v. Chance (2008) 44 Cal.4th 1164, 1172.) The "present ability" element "is satisfied when 'a defendant has attained the means and location to strike immediately.' [Citations.] In this context, however, 'immediately' does not mean 'instantaneously.' It simply means that the defendant must have the ability to inflict injury on the present occasion. Numerous California cases establish that an assault may be committed even if the defendant is several steps away from actually inflicting injury, or if the victim is in a protected position so that injury would not be 'immediate,' in the strictest sense of that term." (Id. at p. 1168, fn. omitted.) Nonetheless, A.T. insists "intent to inflict injury" is an element of assault and counts one and two should not have been sustained because "no rational trier of fact could have concluded that [A.T.] intended to injure [or strike] [Julia.]" A.T. contends, "There is nothing in the record to indicate that [A.T.] intended to do anything other than what he actually did do, which was to hit the nearly-closed door with the rod." We disagree. A rational trier of fact could reasonably infer A.T.'s intent to strike Julia from his threats to do just that. In any event, such a finding is not required.
" '[A]ssault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.' (People v. Williams (2001) 26 Cal.4th 779, 790.) 'The mens rea [for assault] is established upon proof the defendant willfully committed an act that by its nature will probably and directly result in injury to another, i.e., a battery. Although the defendant must intentionally engage in conduct that will likely produce injurious consequences, the prosecution need not prove a specific intent to inflict a particular harm. [Citation.] The evidence must only demonstrate that the defendant willfully or purposefully attempted a "violent injury" or "the least touching," i.e., "any wrongful act committed by means of physical force against the person of another." [Citation.] In other words, "[t]he use of the described force is what counts, not the intent with which same is employed." [Citation.] Because the offensive or dangerous character of the defendant's conduct, by virtue of its nature, contemplates such injury, a general criminal intent to commit the act suffices to establish the requisite mental state.' " (People v. Golde (2008) 163 Cal.App.4th 101, 108-109, fn. omitted.)
Julia's testimony regarding A.T.'s actions, threats, and the force used supports the juvenile court's findings. Julia testified that A.T. held a four-foot long metal rod like a baseball bat and threatened to hit her with it. Immediately following the threats, A.T. followed Julia to her office door, and when he got close enough, "took a full swing" in her direction. The wooden door and Julia physically reverberated as a result of the force A.T. used. The juvenile court could reasonably infer that A.T. either intended to strike Julia or swung the metal rod intentionally, within striking distance of her, with actual knowledge that this act by its nature would probably and directly result in the application of physical force against Julia. The fact Julia was able to close the door just in time and was uninjured is not determinative. (See People v. Golde, supra, 163 Cal.App.4th at p. 109 ["there is no merit to defendant's argument that if he wanted to hit the victim, he could have hit her, and therefore the fact that he did not hit her means he had no intent to hit her"].) The juvenile court could also reasonably infer A.T. had attained the means and location to strike Julia immediately. "The fact an intended victim takes effective steps to avoid injury has never been held to negate this 'present ability.' " (People v. Valdez (1985) 175 Cal.App.3d 103, 113.)
A.T.'s cited authority does not persuade us to reach a contrary conclusion. (See In re Brandon T., supra, 191 Cal.App.4th at pp. 1494-1498 [insufficient evidence to support assault with deadly weapon when minor tried to cut victim's face with a butter knife, but the knife would not cut]; In re Gavin T. (1998) 66 Cal.App.4th 238, 240-242 [insufficient evidence to support assault by means of force likely to cause great bodily injury or with a deadly weapon when minor threw apple core toward a wall, but apple "somehow sailed through a slowly closing door" and struck a teacher in the head].) Substantial evidence supports the juvenile court's findings sustaining the two assault counts.
2. Resisting Executive Officers
A.T. also challenges the sufficiency of the evidence supporting the true findings on the two counts of resisting an officer. Specifically, A.T. maintains there is insufficient evidence Lewis and Long were engaged in the lawful performance of duties when they detained him. The People disagree, contending Long and Lewis had the articulable suspicion necessary to effect a detention. The People have the better argument.
Penal Code section 69 "sets forth two separate ways in which an offense can be committed. The first is attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law; the second is resisting by force or violence an officer in the performance of his or her duty. [Citation.] . . . [¶] A threat, unaccompanied by any physical force, may support a conviction for the first type of offense under [Penal Code] section 69. [Citation.] . . . The central requirement of the first type of offense under [Penal Code] section 69 is an attempt to deter an executive officer from performing his or her duties imposed by law; unlawful violence, or a threat of unlawful violence, is merely the means by which the attempt is made." (In re Manuel G. (1997) 16 Cal.4th 805, 814-815.) "The second way of violating [Penal Code] section 69 expressly requires that the defendant resist the officer 'by the use of force or violence,' and it further requires that the officer was acting lawfully at the time of the offense." (People v. Smith (2013) 57 Cal.4th 232, 241.) Thus, at least in any prosecution for resisting an executive officer based on the second theory, "there must be proof beyond a reasonable doubt that the officer was acting lawfully at the time the offense against him was committed." (In re Joseph F. (2000) 85 Cal.App.4th 975, 982; accord, Manuel G., at pp. 810, 811, 816-817.)
"Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law, or who knowingly resists, by the use of force or violence, the officer, in the performance of his or her duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of [Penal Code] Section 1170, or in a county jail not exceeding one year, or by both such fine and imprisonment." (Pen. Code, § 69, subd. (a).)
A.T. contends his detention was not lawful because, when Long and Lewis responded to La Chiem, they had no reason to believe A.T. was involved in criminal activity. " 'A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.' " (People v. Hernandez (2008) 45 Cal.4th 295, 299.) " 'Under California law, an officer is not lawfully performing her duties when she detains an individual without reasonable suspicion or arrests an individual without probable cause.' " (Garcia v. Superior Court (2009) 177 Cal.App.4th 803, 819, italics omitted.)
In the alternative, A.T. maintains the deputies did not act lawfully because they used excessive force in taking him into custody. When excessive force is used in making what otherwise is a lawful arrest, the arrest becomes unlawful. (People v. White (1980) 101 Cal.App.3d 161, 164, 167.) " 'When a peace officer or a private citizen employs reasonable force to make an arrest, the arrestee is obliged not to resist, and has no right of self defense against such force. [Citations.] On the other hand, the use of unreasonable or excessive force to make an arrest constitutes a public offense. [Citation.] And all persons have a right to prevent injury to themselves by resisting a public offense (Pen. Code, § 692)." (People v. Adams (2009) 176 Cal.App.4th 946, 952.) "[I]t is a pure question of fact whether a police officer has used reasonable force in detaining or arresting a defendant. [Citation.] Consequently, we only need determine if there is sufficient evidence in the record such that a reasonable trier of fact could conclude that the force used in this case was reasonable. [Citation.] We may not reweigh the facts or substitute our judgment for that of the trial court." (People v. Delahoussaye (1989) 213 Cal.App.3d 1, 8.)
A.T. premises his unreasonable detention argument on the notion that "[n]o crime had been reported" and Long and Lewis "were simply responding to the dispatch report of an 'uncontrollable juvenile.' " The record does not support A.T.'s argument. Julia testified that, after A.T.'s assault, she told the police dispatcher "what [was] happening." And, in fact, Lewis testified that he and Long responded to the school in full uniform after receiving a dispatch regarding an "uncontrollable juvenile" who "had some type of a rod and was swinging it around." (Italics added.) Lewis was familiar with the school, having been dispatched there "every single day for similar situations," and was aware La Chiem was a school for children with special needs. Long testified, "[When] we get called to an uncontrollable juvenile, we don't know if it's a mental issue . . . we don't want him to leave and go out on the street if he needs medical help."
Upon arriving at the school, Long and Lewis observed A.T. with a four-foot long, metal rod. A.T. ignored requests to drop the rod, and challenged, "Come on. What are you going to do about it?" Next, A.T. ran away and the officers followed so they "could talk to him, find out what was going on, and . . . also detain him." At that point, Lewis wanted to detain A.T. because "he's at a school," was "obviously upset about something," and "ha[d] a dangerous weapon with him." On catching up to A.T., Lewis and Long again asked A.T. to drop the rod, but A.T. did not comply. A.T. was "upset," screaming, and waving the rod over his head. A.T. again began to walk away, but Lewis grabbed the rod and began attempting to handcuff A.T. Lewis testified: "I believed he was a threat to himself or others. [¶] . . . [¶] . . . I know that a kid at school with a pipe, waving it around is not normal."
A.T. asserts, "[w]aiving [sic] a rod around is not a crime." But, as our previous analysis demonstrates, doing so intentionally and within striking distance of another person is. Thus, it appears the officers had reasonable suspicion to detain A.T. to further investigate the assault. In any event, the deputies had probable cause to detain A.T., pursuant to section 5150, subdivision (a), as he clearly appeared to be a danger to himself or others. (People v. Delahoussaye, supra, 213 Cal.App.3d at pp. 7-8.) "To constitute probable cause to detain a person pursuant to section 5150, a state of facts must be known to the peace officer (or other authorized person) that would lead a person of ordinary care and prudence to believe, or to entertain a strong suspicion, that the person detained is mentally disordered and is a danger to himself or herself or is gravely disabled. In justifying the particular intrusion, the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant his or her belief or suspicion. [Citations.] Each case must be decided on the facts and circumstances presented to the officer at the time of the detention [citation], and the officer is justified in taking into account the past conduct, character, and reputation of the detainee." (People v. Triplett (1983) 144 Cal.App.3d 283, 287-288.)
Here, the juvenile court could reasonably find the deputies had probable cause to detain A.T. under section 5150 and took measures reasonably appropriate in response to A.T.'s resistance. A.T. repeatedly refused to comply with the deputies' request to drop the metal rod. Instead, A.T. attempted to flee, was belligerent, and waved the rod around above his head. It was reasonable for the deputies to view this lack of cooperation by a student, who had already been described as "uncontrollable," at a school for emotionally disturbed teenagers as being an indicator of both a mental disorder and dangerousness, thus justifying the effort to effect a detention. Thereafter, it was A.T. who escalated the level of force involved in his detention. As A.T. resisted the deputies' efforts to detain him, the deputies responded reasonably by increasing the level of force to effect an arrest. Substantial evidence supports the juvenile court's finding the deputies' force was reasonable in light of A.T.'s resistance. B. Denial of Motion to Reduce Offenses to Misdemeanors
A.T. next submits the juvenile court abused its discretion in denying his motion to reclassify his offenses as misdemeanors. Section 702 states, in relevant part: "If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony." This statute imposes a mandatory duty on the juvenile court to make the requisite declaration when disposing of so-called "wobbler" offenses. (In re Manzy W. (1997) 14 Cal.4th 1199, 1204; see Pen. Code, § 17; Cal. Rules of Court, rule 5.795(a).) The juvenile court is not required to state its reasons for the declaration; "all that is necessary for the record on review is a declaration by the court as to whether the offense is a misdemeanor or a felony." (In re Jacob M. (1989) 210 Cal.App.3d 1178, 1181-1182.)
It is undisputed A.T.'s instant offenses are all wobblers alternatively punishable as a misdemeanor or felony. (Pen. Code, §§ 245, subds. (a)(1) & (a)(4), 69, subd. (a).) All four counts were charged as felonies. Here, the juvenile court made an express finding, in its jurisdiction minute order, that all four offenses were felonies. A.T.'s motion to reclassify the offenses as misdemeanors was based primarily on the purported mitigating circumstances that he suffers an emotional disability, as well as an assertion his victims were not injured. In denying that motion, the juvenile court again made an explicit determination the offenses would have been felonies if committed by an adult.
Juvenile courts exercise discretion to decide whether a wobbler should be treated as a felony or misdemeanor. (See People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977 [discussing Pen. Code, § 17, subd. (b)].) The court's exercise of such discretion is "an intensely fact-bound inquiry taking all relevant factors, including the defendant's criminal past and public safety, into due consideration." (Id. at pp. 981-982.) "[T]hose factors that direct similar sentencing decisions are relevant, including 'the nature and circumstances of the offense, the defendant's appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.' " (Id. at p. 978.) On appeal, the burden is on the appellant " 'to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination . . . will not be set aside on review.' [Citation.] Concomitantly, '[a] decision will not be reversed merely because reasonable people might disagree.' " (Id. at pp. 977-978.)
In suggesting the juvenile court abused such discretion, A.T. reiterates the substantial evidence arguments we have already rejected. The juvenile court rejected A.T.'s attempts at minimizing his offenses and explained that its decision not to reduce the offenses to misdemeanors was based on the serious and violent nature of A.T.'s conduct. We cannot second guess that decision. A.T. has failed to meet his burden to show the juvenile court acted irrationally or arbitrarily in denying his motion to reduce the offenses to misdemeanors. C. Commitment to DJJ
A.T. maintains the juvenile court abused its discretion by committing him to DJJ instead of placing him in a residential or locked psychiatric treatment center. We review an order committing a minor to DJJ for abuse of discretion. (In re Carl N. (2008) 160 Cal.App.4th 423, 431-432; In re Asean D. (1993) 14 Cal.App.4th 467, 473.) " 'We will not disturb the juvenile court's findings when there is substantial evidence to support them. [Citation.] " '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.' " ' [Citation.] 'A trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence.' " (In re Khalid B. (2015) 233 Cal.App.4th 1285, 1288.)
"The purpose of juvenile delinquency laws is twofold: (1) to serve the 'best interests' of the delinquent ward by providing care, treatment, and guidance to rehabilitate the ward and 'enable him or her to be a law-abiding and productive member of his or her family and the community,' and (2) to 'provide for the protection and safety of the public . . . .' (§ 202, subds. (a), (b) & (d); [citations].)" (In re Charles G. (2004) 115 Cal.App.4th 608, 614.) "In determining the judgment and order to be made in any case in which the minor is found to be a person described in Section 602, 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 committed by the minor, and (3) the minor's previous delinquent history." (§ 725.5.)
1. Background
At the disposition hearing, the probation officer recommended A.T. be committed to DJJ for a maximum term of 79 months. The probation officer recognized A.T. suffers from numerous physical, emotional, and cognitive problems—kidney disease, asthma, cardiac problems, multiple mental health diagnoses, childhood trauma (physical abuse, parental abandonment, and witnessing domestic violence), and learning disabilities. A.T. had also been in and out of foster care for approximately twelve years, but had most recently been living with his maternal grandmother and at the group home. A.T. had also been the subject of six referrals to the probation department. "The first referral was in March 2013, [when A.T.] was involved in an assault against his uncle and sustained a [misdemeanor] battery and was subsequently placed on [formal nonwardship probation] for six months. The second referral was for [misdemeanor] vandalism. In July 2013, [A.T.] was at his group home and became angry so he threw a padlock through a dining room window causing approximately $400.00 in damage. The minor was continued on [nonwardship probation]. The third referral was in August 2013, in which [A.T.] allegedly battered another student during lunch period. The referral was closed at intake. The fourth referral was for [misdemeanor assault with a deadly weapon; A.T.] attacked a resident at his group home. [A.T.] was continued on [nonwardship probation.] The fifth referral was for [misdemeanor battery; A.T.] attacked a group home staff member which resulted in him being removed from the group home. The matter is currently on hold by the [District Attorney]." A.T. was found to be at "high risk level for re-offense."
The probation officer's report indicated the Youthful Offender Treatment Program had been considered, but A.T. was unsuitable "due to his escalating assaultive behaviors and his history of violence towards family members, group home residents, group home staff, police officers, juvenile hall staff and juvenile hall residents." The Orin Allen Youth Rehabilitation Facility and Bar-O Boys Ranch were likewise found unsuitable because "his mental health needs . . . are far beyond what could be dealt with in a healthy manner . . . , also the seriousness of the instant offense and his past assaultive behavior . . . makes him too high risk for a minimum security facility."
The probation officer concluded: "This is one of multiple times [A.T.] has attempted or succeeded in attacking residents at his group home, fellow students at school, staff, or police officers. [A.T.] has been provided with numerous opportunities within the community, with relatives in foster homes and in group homes, to be successful in treatment. All have failed to meet his anger management and mental health issues without endangering his peers, counselors, teachers, therapists, and even law enforcement. . . . [¶] . . . [¶] The minor needs an environment where he can be safe and address his anger management issues without being violent. He also needs a high level of supervision, due to the serious and violent nature of the sustained charges. [A.T.] needs to be held accountable at a level that is appropriate given the nature of the offense. He needs a structured setting where he will attend school every day, receive substance abuse counseling, and participate in an anger management program."
The juvenile court initially indicated its reluctance to commit A.T. to DJJ. The court added, "It's not to say that I wouldn't do so if I were convinced that it offers the best services for [A.T.], but I am unconvinced that that would be the best appropriate disposition." In response to the court's request for an exhaustive review of placements, the probation department sent referral packets to four "level 14" group homes (Charis Youth Center, Fred Finch Crisis Residential Treatment, Milhous, and Victor Treatment Center), as well as two "high level" psychiatric facilities (Vista Del Mar and Star View Adolescent Center). A.T. was rejected from all but one facility. Star View responded that it would review A.T.'s case when it had an opening.
As of August 17, 2015, Star View remained at full capacity.
An out-of-county facility, EMQ, was also known to have no "level 14" openings until September 1. Furthermore, a contract would need to be established between EMQ and Contra Costa County. An out-of-state facility, Deveraux Center, had inquired about A.T.'s medical records and accepted him, on the condition he see an outside nephrologist quarterly. A.T. was placed on Deveraux's standby list, but it was not expected to have an opening until late fall 2015 or early winter 2016.
The court's view regarding the benefit of DJJ appears to have changed when it was reported that, while at juvenile hall in connection with the instant charges, A.T. engaged in a verbal argument with another juvenile and had received "room time" as a consequence. A.T. became extremely upset, banged on the locked door to his room, and called a probation officer a "bitch" and threatened to "fucking kill [him]." During a later room check, it was discovered that A.T. had sharpened a plastic spork into a shank. As a result, he was determined to be a security risk. The juvenile court observed: "I'm very troubled by this behavior. And if [A.T.] can't control himself . . . day-to-day [during] these court proceedings and in a locked confined setting is posing these safety risks, it quite frankly is evidence supporting the [DJJ] recommendation."
A.T. presented testimony from his probation officer, as well as an education rights expert. A.T.'s probation officer testified he originally made the DJJ recommendation because there were no appropriate alternatives but he had later spoken to DJJ and believed A.T. could benefit from DJJ's programs, which he was initially unable to name. At DJJ, A.T. would receive education consistent with his IEP and an immediate mental health evaluation. If A.T.'s mental health needs were immediate, DJJ would house him in a mental health unit separate from the general population. In contrast, the education rights expert opined that A.T.'s IEP may not be appropriately implemented at DJJ due to a shortage in the number of psychologists and because it was unclear whether A.T. would have his own room. In her opinion, A.T.'s needs would be better served at a locked, "level 14" placement, such as Deveraux or Copper Hill Youth Center, a facility in Utah that would have an opening in "the next few months."
The People presented testimony from a DJJ acting senior supervising psychologist, Krys Hunter, who provided information regarding DJJ's two separate mental health units—the Mental Health Residential Unit and the Intensive Behavior Treatment Program. Each of these units provides single rooms. The Intensive Behavior Treatment Program is specifically designed for "youth who are exhibiting violence or more aggressive behaviors" caused by mental illness. In either unit, a treatment plan would be formulated by a team comprised of a psychologist, school psychologist, licensed psychiatric technicians, and any necessary medical personnel. A minor assigned to either unit would meet regularly on an individual basis with a psychologist and would also receive group programming. A crisis intervention plan is also created for youth who are at risk of violence, using the most helpful tools to calm each individual minor. Hunter also testified that the mental health units have the resources to provide a high school education in compliance with an IEP.
At the conclusion of the evidence, defense counsel argued for a placement at a "level 14" placement, such as Copper Hill, to avoid exposure to more serious offenders at DJJ and because DJJ is not "fully staffed" to deal with A.T.'s emotional disability. After counsel informed the juvenile court that Star View had not responded to further inquiries, the court committed A.T. to DJJ. The juvenile court explained its ruling: "I thought the testimony of [Hunter] was incredibly informative. [¶] The Court has read a lot about DJJ over the course of the time sitting here but has never had the benefit of live testimony from someone . . . who is so involved in the services that are offered through DJJ. I was hoping through this process, quite frankly, that something else might be identified as a location that would best meet [A.T.'s] needs as I think he has very extensive needs. [¶] However, given the state of the evidence before the Court, I am convinced that the most appropriate disposition was the one that was recommended by probation at the onset . . . . [¶] . . . [¶] . . . I am convinced that given the long waiting list at the various facilities that might be able to serve his needs and given the other option of an out-of-state placement, a placement with whom probation does not have a contract, that the Court is unwilling to allow [A.T.] to exist . . . in limbo at Juvenile Hall and not receiving the sort of intensive therapeutic services that he could already be receiving if the Court were to have from the onset adopted the recommended disposition. [¶] I also think that [A.T.] is very connected to his family. His family loves him. They have been to court regularly. I believe they visit him regularly and I know that they have been involved in his life for a long while and they have been on this journey with him. And I think placing him out of state away from his family would really be detrimental to [A.T.] And as scary as the family may feel the thought of DJJ is, I am convinced that it is appropriate and that he will receive the help he desperately needs at DJJ."
With regard to A.T.'s term of confinement, the court stated: "I am going to follow the recommended disposition provided by probation in this case. I want to note for the record that given the amount of time [A.T.] has served in custody he is entitled to 212 days credit toward the maximum custody time of 6 years and 7 months. [¶] . . . I hereby commit [A.T.] to DJJ for the maximum term, which is 79 months, with credit for the 212 days served." (Italics added.)
2. Analysis
Commitment to DJJ is the most restrictive permissible sanction, intended for the most serious juvenile offenders. (§ 202, subd. (e)(5); In re Teofilio A. (1989) 210 Cal.App.3d 571, 578 (Teofilio A.).) Before 1984, California courts treated a commitment to DJJ's predecessor, the California Youth Authority, as " 'the placement of last resort' for juvenile offenders." (In re Carl N., supra, 160 Cal.App.4th at p. 432.) " 'In 1984, the Legislature replaced the provisions of section 202 with new language which emphasized different priorities for the juvenile justice system. (Stats. 1984, ch. 756, §§ 1, 2, pp. 2726-2727.) The new provisions recognized punishment as a rehabilitative tool. (§ 202, subd. (b).) 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" (§ 202, subd. (a); [citation]), where care, treatment, and guidance shall conform to the interests of public safety and protection. (§ 202, subd. (b).) [¶] 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. This interpretation by no means loses sight of the "rehabilitative objectives" of the Juvenile Court Law. (§ 202, subd. (b).)' " (Teofilio A., at pp. 575-576.) "In 1999, although the Legislature deleted from the statute a list of punitive sanctions available to the juvenile court (Stats. 1999, ch. 997, § 1.1, p. 7588) it retained language, which still appears, that ' "punishment" means the imposition of sanctions,' and that punishment 'does not include retribution' (§ 202, subd. (e)). . . . [Thus, j]uvenile proceedings continue to be primarily rehabilitative, disallowing punishment in the form of retribution." (In re Julian R. (2009) 47 Cal.4th 487, 496 (Julian R.).) "[W]hen we assess the record in light of the purposes of the Juvenile Court Law [citation], we evaluate the exercise of discretion with punishment and public safety and protection in mind." (In re Lorenza M. (1989) 212 Cal.App.3d 49, 58.) " 'We have no power to judge the effect or value of the evidence, to weigh the evidence, to consider the credibility of witnesses or to resolve conflicts in the evidence or the reasonable inferences which may be drawn from that evidence.' [Citation.] '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.' " (In re Edward C. (2014) 223 Cal.App.4th 813, 829.)
The juvenile court's discretion to commit a minor to DJJ is limited. (In re Teofilio A., supra, 210 Cal.App.3d at p. 576.) "[A DJJ] commitment must be based on a recent violent offense or sex crime adjudicated in a delinquency petition." (In re Greg F. (2012) 55 Cal.4th 393, 404; accord, §§ 731, subd. (a)(4), 733, subd. (c).) Furthermore, "[n]o ward of the juvenile court shall be committed to [DJJ] unless the judge of the court is fully satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefited by the reformatory educational discipline or other treatment provided by the [DJJ]." (§ 734.) "To support a [DJJ] commitment, it is required that there be evidence in the record demonstrating probable benefit to the minor, and evidence supporting a determination that less restrictive alternatives are ineffective or inappropriate." (Teofilio A., at p. 576; accord, In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.)
"Nevertheless, there is no rule that a [DJJ] placement cannot be ordered unless less restrictive placements have been attempted, and there is no requirement that the juvenile court expressly state on the record the reasons for rejecting less restrictive placements. [Citations.] Rather, '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 a reversal.' " (In re Nicole H. (2016) 244 Cal.App.4th 1150, 1159.)
We are not convinced by A.T.'s claim that the juvenile court failed to properly consider his unique needs or less restrictive placements. A.T. contends: "[T]here was no need for haste. [A.T.] could have remained at Juvenile Hall, very near his family, until a place became available at Star View or another California facility. Or [A.T.] could have been sent to Devereux in Florida on a temporary basis until such time as a place became available at a . . . psychiatric facility like Star View in California. . . . [T]he record is utterly devoid of evidence that [A.T.] would benefit from a [DJJ] commitment." We decline A.T.'s request to have us reweigh the evidence and affirm the commitment order. The record makes clear the juvenile court considered less restrictive alternatives and rejected them because they did not provide optimal rehabilitative services, had no available openings, or would interfere with the support A.T. receives from his family.
The record is replete with explicit references to A.T.'s educational and mental health needs and the juvenile court certainly did not ignore them. Indeed, the juvenile court conducted an exhaustive review of available placements and, ultimately, specifically recognized that DJJ would provide A.T. with extensive services tailored to his needs and that delaying access to such services, if it selected an alternative placement without a current opening, would not be in A.T.'s best interest.
It is an abuse of discretion to commit a minor to DJJ solely because of the absence of other less restrictive alternatives. (In re M.S. (2009) 174 Cal.App.4th 1241, 1255; In re Aline D. (1975) 14 Cal.3d 557, 559, 562 (Aline D.), superseded by statute on other grounds as stated in In re Luisa Z. (2000) 78 Cal.App.4th 978, 987.) But A.T. misplaces his reliance on this line of authority. In Aline D., numerous unsuccessful attempts were made to find a suitable placement for a "marginally delinquent" and borderline mentally retarded minor. (Aline D., at pp. 559-560, 567.) Two psychiatrists and one psychologist specifically recommended that the minor not be committed to the California Youth Authority (CYA), DJJ's predecessor. (Id. at p. 561.) The juvenile court noted the lack of options and stated that the minor could not simply be left at juvenile hall and that the minor's mother would not accept her, if the case was dismissed. Thus, the minor was committed to CYA because it was the only alternative to turning the minor "out in the street." (Id. at pp. 561-562.)
The Supreme Court reversed the order committing the minor to CYA because the record reflected the commitment was ordered "solely because there appeared to be no other available placement facility." (Aline D., supra, 14 Cal.3d at p. 559, italics added.) The Aline D. court stated: "[A] CYA commitment may not be made for the sole reason that suitable alternatives do not exist." (Id. at p. 562, italics added.) In part, the Supreme Court relied on the law, as it stood then, that punishment was not a permissible rehabilitative tool in juvenile proceedings. (Id. at p. 567.)
Aline D. is distinguishable because, here, the juvenile court did not order A.T.'s commitment to DJJ solely because alternative placements were unavailable. Although the court initially expressed a preference for a level 14 or level 15 placement, the court appears to have changed its mind after A.T. was found with a shank at juvenile hall. Furthermore, the juvenile court not only found there were no appropriate and available less restrictive alternatives, but also determined A.T. would benefit from the extensive services provided by DJJ. This finding was supported by the probation officer's recommendation and testimony, as well as Hunter's testimony regarding mental health treatment at DJJ. Mental health treatment is not A.T.'s only need. At the time of the disposition, A.T. was 17 years old, and had suffered numerous referrals for escalating assaultive outbursts. Despite prior attempts at rehabilitation, A.T. had most recently committed a violent assault against a staff member at his school and violently resisted deputies attempting to detain him. The record suggests DJJ will provide A.T. with mental health treatment, education consistent with his IEP, an anger management program, and substance abuse counseling. DJJ will also provide A.T. with the secure environment and accountability that will further his own rehabilitation interests and the interests of public safety. Thus, substantial evidence supports the juvenile court's finding A.T. would benefit from a DJJ commitment.
To the extent A.T. relies on Aline D. for the proposition DJJ has no services that will assist him as a matter of law, we are unpersuaded. (Aline D., supra, 14 Cal.3d at pp. 564-565.) Aline D. was decided more than 40 years ago. " 'At the time the Supreme Court published Aline D., the general purposes of the juvenile justice system, as contained in former section 502 were to " 'secure for each minor . . . such care and guidance, preferably in his own home, as will serve the . . . welfare of the minor and the best interests of the State; . . . and when the minor is removed from his own family, to secure for him custody, care, and discipline as nearly as possible equivalent to that which should have been given by his parents.' " [Citation.] Juvenile commitment proceedings were designed for the purposes of rehabilitation and treatment, not punishment. [Citation.]' [Citation.] [¶] However, Aline D. predated the amendment of former . . . section 502 (now § 202) regarding the purposes of the juvenile court law. Section 202 now recognizes punishment as a rehabilitative tool and emphasizes the protection and safety of the public. [Citation.] In evaluating the court's exercise of discretion in committing a minor to CYA, we now do so with punishment, public safety, and protection in mind." (In re Luisa Z., supra, 78 Cal.App.4th at p. 987.)
Relying on special master reports filed in litigation challenging conditions in the DJJ, A.T. also contends that instead of providing probable benefit, a DJJ commitment would be detrimental to his education and mental health, while risking making him a more serious delinquent. The juvenile court was not compelled to accept A.T.'s expert witness testimony or conclude, from statements in reports suggesting past inadequacies at CYA, that DJJ would presently be unable to meet A.T.'s mental health or special education needs. The juvenile court credited the testimony of Hunter, who testified regarding DJJ's current mental health programming and that the unit to which A.T. would likely be assigned was equipped to meet his extensive needs. Although staffing was noted to remain a concern, the reports A.T. relies on actually buttress Hunter's testimony that conditions at DJJ, and its mental health units in particular, are greatly improved.
The juvenile court did not abuse its discretion in concluding A.T. would probably benefit from the services at DJJ and that less restrictive alternatives were inappropriate. (In re Angela M., supra, 111 Cal.App.4th at p. 1396; In re Teofilio A., supra, 210 Cal.App.3d at pp. 575-576.) Substantial evidence supports the juvenile court's determination. D. Maximum Term of Confinement
Finally, A.T. insists the juvenile court failed to exercise its discretion to set a maximum term of confinement under section 731, subdivision (c). "When a minor within the jurisdiction of the juvenile court is committed to [DJJ], the juvenile court is required to indicate the maximum period of physical confinement. ([§ 726, subd. (d)(1)].) In setting that confinement period, which may be less than, but not more than, the prison sentence that could be imposed on an adult convicted of the same crime, the court must consider the 'facts and circumstances' of the crime. (§ 731, subd. (c).)" (Julian R., supra, 47 Cal.4th at pp. 491-492.)
Section 731, subdivision (c), provides in relevant part: "A ward committed to [DJJ] may not be held in physical confinement for a period of time in excess of the maximum period of imprisonment that could be imposed upon an adult convicted of the offense or offenses that brought or continued the minor under the jurisdiction of the juvenile court. A ward committed to the [DJJ] also may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter or matters that brought or continued the ward under the jurisdiction of the juvenile court, which may not exceed the maximum period of adult confinement as determined pursuant to this section." (Italics added.)
"The courts construe . . . section 731, subdivision (c) to confer on the court the discretion not only to impose a theoretical maximum term of physical confinement equal to an adult's maximum period of imprisonment . . . for the identical offense . . . but also to impose a shorter theoretical maximum term of physical confinement on the basis of the facts and circumstances of the case." (In re Alex U. (2007) 158 Cal.App.4th 259, 264, fn. omitted.) The record need not affirmatively show the juvenile court considered imposition of a confinement period shorter than the adult maximum. On a silent record, the reviewing court will presume the juvenile court performed its statutory duty to consider the " 'facts and circumstances' " of the juvenile's offense. (Julian R., supra, 47 Cal.4th at p. 492; Evid. Code, § 664.)
The People do not assert A.T. forfeited the instant argument by failing to urge the juvenile court to exercise its discretion to impose a confinement term shorter than the adult maximum term. Nonetheless, in anticipation of such an argument, A.T. contends that, if there was a forfeiture, his defense counsel was ineffective. (See In re Travis J. (2013) 222 Cal.App.4th 187, 201 (Travis J.) ["[i]n juvenile court, as in an adult criminal proceeding, a claim that the court failed to make or articulate a discretionary sentencing choice must be raised by objection in the trial court in order to preserve the claim for appeal"].) We need not resolve the forfeiture issue, however, because A.T.'s argument fails on the merits.
Likewise, we need not address A.T.'s assertion his defense counsel was ineffective in failing to urge an exercise of discretion under section 731, subdivision (c).
A.T. maintains the juvenile court's failure to check a box on both the original and amended commitment orders (Judicial Counsel Forms, form JV-732; hereafter Form JV-732) is evidence that the court failed to exercise its discretion under section 731. Two boxes appear under the heading of "Confinement period" in the Form JV-732. The first box (No. 8.a) of both the original and amended Form JV-732 was checked, and the amended form reflected a "maximum period of confinement" of 5 years and eight months. The second box (No. 8.b)—which states, "The court has considered the individual facts and circumstances of the case in determining the maximum period of confinement"—was not checked on either the original or amended Form JV-732.
As noted ante, A.T.'s original commitment order was amended to impose no custodial time on the assault with a deadly weapon, pursuant to Penal Code section 654.
In Travis J., supra, 222 Cal.App.4th 187, we rejected a similar argument that a juvenile court committed reversible error when it failed to check box No. 8.b on Form JV-732. (Id. at p. 201.) We explained: "As here, the minor [in Julian R., supra, 47 Cal.4th 487] argued that 'a reviewing court must presume from the record's silence that the juvenile court was either unaware of, or failed to perform, its statutory duty to consider that the "facts and circumstances" might warrant a confinement period shorter than the adult maximum term.' (Julian R., at p. 498.) Rejecting that argument, the court observed that applying such a presumption would ' "ignore a cardinal principle of appellate review": [that a] " ' "judgment or order of the lower court is presumed correct" ' " ' and ' " 'that a trial court is presumed to have been aware of and followed the applicable law.' " . . . [T]hus when "a statement of reasons is not required and the record is silent, a reviewing court will presume the trial court had a proper basis for a particular finding or order." ' (Id. at pp. 498-499, citations omitted.)" (Travis J., at p. 201.)
In Travis J., the record was not silent because defense counsel had repeatedly reminded the juvenile court of its obligation to make an independent finding on the appropriate DJJ term, specifically referencing section 731, subdivision (c). The court also gave a detailed statement of reasons supporting its decision to select a three-year maximum term. (Travis J., supra, 222 Cal.App.4th at pp. 201-202.) Although the juvenile court did not expressly reference section 731, subdivision (c) in doing so, we presumed "the juvenile court 'exercised its discretion in setting a maximum period of physical confinement that was measured against both the ceiling set by the maximum adult prison term and a possibly lower ceiling set by the relevant "facts and circumstances" [citation] . . . .' (Julian R., supra, 47 Cal.4th at p. 499, fn. omitted.)" (Travis J., at p. 202.)
Here, as in Travis J., the unchecked box No. 8.b on A.T.'s Form JV-732 is not conclusive. After the contested disposition hearing, the juvenile court announced "the maximum term" would be imposed. We agree with the People that we can reasonably infer that the court was aware of its discretion under section 731, subdivision (c), but nonetheless decided to impose the longest period of confinement. The record does not affirmatively support A.T.'s contention the juvenile court failed to exercise its discretion. (See Julian R., supra, 47 Cal.4th at pp. 499; Travis J., supra, 222 Cal.App.4th at pp. 201-202; In re R.O. (2009) 176 Cal.App.4th 1493, 1497-1498 [court erred by concluding it had "no choice" but to impose the indeterminate term applicable to an adult].)
III. DISPOSITION
The judgment is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
SIMONS, J.