Opinion
A148666
04-27-2017
In re R.P., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. R.P., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J1300855)
R.P. appeals from orders of the juvenile court finding that he committed a robbery, with personal use of a firearm, and committing him to the Department of Juvenile Justice (DJJ). He contends the enhancement must be vacated because the evidence does not support the finding that the gun displayed during the robbery was a firearm within the statutory definition, as opposed to a replica, air gun, spring gun, or pellet gun. He further argues the dispositional order must be vacated because the social study was deficient, the judge relied upon information outside the record and improperly considered the availability of community college correspondence courses at DJJ, and his attorney failed to provide effective assistance with respect to disposition. We affirm.
The DJJ was previously called the California Youth Authority (CYA). References to DJJ and CYA are to the same institution.
STATEMENT OF THE CASE
Appellant was initially declared a ward of the court in 2013. The Welfare and Institutions Code section 602 petition alleged that he had committed two counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)) and two counts of vehicle theft (Veh. Code, § 10851, subd. (a)). The juvenile court sustained the second robbery count and dismissed the other counts. Appellant was ordered into placement at Environmental Alternatives, Warner Mountain Group Home (Warner). Approximately seven months later, on April 3, 2014, he absconded while on a home pass. He was returned to custody in May and again placed at Warner on June 4, 2014.
The facts concerning the initial wardship proceedings are taken from the probation report in the present case. The petition and other documentation concerning those proceedings is not included in the record on this appeal.
Further statutory references will be to the Welfare and Institutions Code unless otherwise specified.
The first robbery count was based on an incident in which appellant allegedly approached a female, pointed a replica firearm at her and demanded her cell phone, then, as a co-responsible wrestled with the victim to get her phone, reached in to grab and pull it away. In the incident underlying the other counts, while riding in a stolen minivan, appellant and co-responsibles stopped and approached a man and woman walking toward a BART station. Appellant put his hand on the front of his waist band, over his shirt, on the handle of a replica black firearm, and ordered the man to hand over his Jordan brand sandals, jacket, hat and gold chain. After the victim complied, appellant demanded his phone, then refused to take it because the man said it belonged to the woman. Appellant and his companions drove away in the minivan. Soon thereafter, the police were notified about a suspect pulling on vehicle door handles; witnesses saw appellant, driving a stolen Toyota Camry, pick up the suspect. Police tried to pull them over, and appellant sped up, failed to stop at a stop sign, evaded the police and abandoned the vehicle. When detained, appellant was wearing the robbery victim's jacket, shoes and gold chain. The police found a black pistol pellet gun in the backseat of the Camry.
On May 6, 2015, a notice of probation violation was filed alleging that appellant had left placement without permission on May 1, 2015. Appellant's whereabouts were still unknown when he was arrested on the present petition on January 28, 2016.
On January 29, 2016, a supplemental petition was filed alleging one count of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)) and an enhancement for personal use of a firearm (Pen. Code § 12022.53). After a contested jurisdiction hearing on May 16, 2016, the court sustained the petition and found the enhancement allegation true. On June 2, 2016, the court found the probation violation true. After a contested disposition hearing on the same date, the court continued appellant's wardship and ordered that he be placed at the DJJ for a maximum confinement period of 16 years, with credit for 210 days.
Appellant filed a timely notice of appeal on June 22, 2016.
STATEMENT OF FACTS
C.U. testified that on the morning of January 26, 2016, he was walking on the sidewalk on 8th or 9th Street, off Ripley, in Richmond. He was carrying a new laptop he had just purchased at Walmart, as well as an Xfinity bag and a plastic bag, both containing cans he had picked up to give to his grandmother. C.U. saw a minivan pulling out of a driveway and stopped to wait for it to pass. The van stopped and both the driver and passenger got out, both holding black guns at their sides. The driver, whom C.U. identified as appellant, demanded C.U.'s "stuff," saying C.U. had to give it to him or was going to have to "see" (i.e., fight) him. C.U. gave appellant his belongings "because I'm not going to go against somebody with a weapon." They put C.U.'s things into the vehicle, by the back seats, and drove away.
C.U. testified that the driver was "a step to two steps" away from him during the incident. C.U. was "not familiar" with guns and could not say what kind the driver had, but it "looked real" rather than "fake" and he was "sure" it was a handgun. Asked if he had seen handguns before, C.U. said he had "been in places where they have them" and "seen cops come in with them"; asked if this appeared to be the same type of gun, he responded, "Yes. It was a handgun. It was similar to—I mean, just normal handgun." C.U. did not see an "orange tip" on the gun. Asked if it appeared to be metal, he replied, "Yes, it looked like it. It doesn't—it's black so I don't know. I can't—I'm guessing it's going to be." Defense counsel's objection to the witness guessing was sustained.
C.U.'s phone was dead, so he ran to Kaiser to contact the police. Before doing so, he knocked over some trash cans in the driveway so he would be able to find the location again. The responding police officers asked C.U. about the vehicle. He stated at the hearing that he remembered the vehicle's license plate had an "M letter in it or something like that," and that he had a better memory of the license plate back in January when he spoke with the police than he did at the hearing. A police officer drove C.U. around the neighborhood and he pointed out the driveway, but no vehicles were there. Subsequently, the police came to C.U.'s home and showed him photographs, one of which looked "exactly" like the driver; he was "100 percent" certain of this identification.
C.U. identified a photograph of a vehicle in the driveway where he had told the police the incident occurred as looking "similar" to the one appellant was driving and testified that the van appeared to be a "bluish" color in the photograph. He testified that photographs of a bag of cans and bottles and an Xfinity bag looked like the bags that had been taken from him, but in the photographs they were not in the same part of the car as where he had seen appellant put them. C.U. did not recall what age he told the police the driver was, and did not recall whether he told the police both the driver and passenger had guns but believed he would have because "I know they both had guns." After he acknowledged having said he was not familiar with guns, defense counsel asked, "You're familiar with BB guns; aren't you?" C.U. responded, "not too many different kinds. All I know is a BB gun is a BB gun." He acknowledged that he had shot a woman with a BB gun, had been arrested for having sex with an underage girl, and had pointed a taser at a police officer and triggered it; as far as he knew, charges had not been filed in connection with those incidents. Asked if he expected his testimony in the present case to help him in those other cases, C.U. stated he was "not looking for it to" and no one had told him testifying would help him with possible other cases.
The police officer who investigated C.U.'s report testified that the building in the background of the photograph was the house where C.U. said the incident occurred.
Police officer Jameiz Terrell was dispatched at 8:00 a.m. on January 26, 2016, to speak with C.U. He told her that two Black males got out of a gray "mini Chrysler" van that was pulling out of a driveway and took his belongings. She drove C.U. around the area and he was able to identify the location of the incident, 576 9th Street, by trash cans he had knocked over. About an hour later, having returned to the area after taking C.U. home, the officer saw the vehicle he had described in the driveway at 576 9th Street. The van was dark gray and the license plate was 7PLM886. According to the officer's report, C.U. told her that only the driver had a gun, not the passenger, and that the driver pointed the gun at him. C.U. described the driver as a Black male with a short fade haircut, in his late 20s or early 30s. The officer testified that at the hearing, appellant did not have a fade haircut. The van in exhibit H differed from the one she saw in the driveway in that the one in the photograph appeared to be blue.
Police Officer Bradley Marweg, a patrol crime scene investigator, was dispatched to 576 9th Street on January 28, 2016, and photographed the residence and a dark blue van in front. Among the photographs he took were several showing a clear plastic bag containing cans and bottles and a red Xfinity bag next to each other in the rear trunk area of the van.
After presentation of the evidence, defense counsel argued that there was reasonable doubt as to both whether appellant was the perpetrator and whether a "real gun" was used in the robbery. The juvenile court concluded there was proof beyond a reasonable doubt that appellant committed the robbery despite the inconsistencies defense counsel noted, and proof beyond a reasonable doubt that a real firearm was used based on the victim's testimony.
The court did not find it problematic that both the victim and the officer recalled the color of the van being different from what appeared in the photograph because the victim testified that the photograph looked like the van and the stolen items were found in the van. The difference between C.U.'s report to the police that the driver pointed the gun at him and his testimony that the gun was pointed down was not a sufficient inconsistency, in the court's view, to impeach C.U. to the point that the court should not believe him. The court emphasized that C.U. did not know appellant previously but identified him as the driver who used a gun to scare him into giving up his property, and noted that it was "not surprised" C.U. had described him as being older because appellant "looks much older than he must be, you know, to be here in this court" and "ages are difficult" but "he looks to me much older."
The probation report related that in an interview on May 17, 2016, the day after the jurisdiction hearing, appellant denied involvement in the present offense or having ever used a gun, saying that even in the 2013 robbery he used a BB gun rather than a real one. He said the victim incorrectly identified the vehicle involved and, when asked about the victim's belongings found in the van, disclaimed knowledge and said several people used the van but he had never driven it.
DISCUSSION
I.
Appellant contends there was insufficient evidence to support the finding that during the robbery he used a "firearm" within the meaning of the enhancement statute because the victim's testimony was insufficient to establish that it was not a toy gun, air or BB gun or other object not meeting the statutory definition. "Our review is governed by the same principles applicable to adult criminal appeals. (In re Roderick P. (1972) 7 Cal.3d 801, 809.) Our function is 'to determine whether the record contains any substantial evidence tending to support the finding of the trier of fact, and in considering this question we must view this evidence in the light most favorable to the finding.' (Id. at p. 808.)" (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1328.) "The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Reilly (1970) 3 Cal.3d 421, 425; accord, People v. Pensinger (1991) 52 Cal.3d 1210, 1237.) The same standard applies when the conviction rests primarily on circumstantial evidence. (People v. Perez (1992) 2 Cal.4th 1117, 1124.)" (People v. Kraft (2000) 23 Cal.4th 978, 1053.) "The test is not whether guilt is established beyond a reasonable doubt, but whether any 'rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' (Jackson v. Virginia (1979) 443 U.S. 307, 319.)" (In re Muhammed C., at p. 1328.) "The trier of fact, not the appellate court, must be convinced of the minor's guilt, and if the circumstances and reasonable inferences justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment. (People v. Bean (1988) 46 Cal.3d 919, 932-933.)" (In re James B. (2003) 109 Cal.App.4th 862, 872.)
Penal Code section 12022.53, subdivision (b), provides that any person who personally uses a "firearm" in the commission of enumerated felonies, including robbery (Pen. Code, § 122022.53, subd. (a)(4)), "shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years." A "firearm" within the meaning of this enhancement statute is "a device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of an explosion or other form of combustion." (Pen. Code, §§ 16520, subd. (a), 12001.) "[T]oy guns obviously do not qualify as a 'firearm,' nor do pellet guns or BB guns because, instead of explosion or other combustion, they use the force of air pressure, gas pressure, or spring action to expel a projectile." (People v. Monjaras (2008) 164 Cal.App.4th 1432, 1435 (Monjaras).)
"Circumstantial evidence alone is sufficient to support a finding that an object used by a robber was a firearm." (Monjaras, supra, 164 Cal.App.4th at p. 1436; People v. Green (1985) 166 Cal.App.3d 514, 516-517 & fn. 1.) And a "victim's inability to say conclusively that the gun was real and not a toy does not create a reasonable doubt, as a matter of law, that the gun was a firearm." (Monjaras, at pp. 1437-1438.)
In Monjaras, supra, 164 Cal.App.4th at page 1434, the defendant demanded the victim's purse, then pulled up his shirt and displayed the handle of a black pistol tucked into his waistband. The victim, who had seen but not handled guns, saw that the pistol looked like a gun and was scared; she " 'assumed' the pistol was 'real' " and gave the defendant her purse. (Id. at p. 1436.) She acknowledged that she did not know whether the gun was made of metal or plastic and conceded she could not say for sure whether it was " 'a toy or real or not.' " (Ibid.) Monjaras explained that "[t]he jury was not required to give defendant the benefit of the victim's inability to say conclusively the pistol was a real firearm" because " 'defendant's own words and conduct in the course of an offense may support a rational fact finder's determination that he used a [firearm].' " (Id. at pp. 1436-1437, quoting People v. Rodriguez (1999) 20 Cal.4th 1, 13.) "As the old saying goes, 'if it looks like a duck, and quacks like a duck, it's a duck.' The pistol tucked into defendant's waistband looked like a firearm, and it in effect communicated that it was a firearm when defendant menacingly displayed it and ordered the victim to give him her purse. While it is conceivable that the pistol was a toy, the jury was entitled to take defendant at his word, so to speak, and infer from his conduct that the pistol was a real, loaded firearm and that he was prepared to shoot the victim with it if she did not comply with his demand. (See [People v.] Aranda [(1965)] 63 Cal.2d [518,] 532, 533.)" (Monjaras, at p. 1437.)
Appellant argues that Monjaras is not persuasive authority because it relies upon the inaccurate factual assumption that criminals do not display replica guns or others not meeting the statutory definition of "firearm" in the course of robberies, evades the requirement of proof beyond a reasonable doubt, is inconsistent with cannons of statutory construction, and is not supported by public policy. As evidenced by his argument that courts are not at liberty to "expand the Legislature's firearm enhancement to include gun replicas, air guns, and the like," appellant appears to read Monjaras as permitting an enhancement under Penal Code section 12022.53 to be based on evidence that the defendant used something other than a firearm. This view of Monjaras is not accurate. Monjaras began its discussion with the observation that toy guns, pellet gun and BB guns "obviously do not qualify" as firearms because they do not use explosion or other combustion to expel a projectile as required by the statutory definition of "firearm." (Monjaras, supra, 164 Cal.App.4th at p. 1435.) It then held that an object may be found to satisfy the statutory definition by means of circumstantial evidence: "[W]hen as here a defendant commits a robbery by displaying an object that looks like a gun, the object's appearance and the defendant's conduct and words in using it may constitute sufficient circumstantial evidence to support a finding that it was a firearm within the meaning of [Penal Code] section 12022.53, subdivision (b)." (Id. at p. 1437.) Subsequently, reaffirming this holding, a different panel of the same court stated, "When the evidence shows that a criminal perpetrator threateningly displays what looks like a real firearm, a conviction or sentence enhancement depending on firearm use may not be reversed simply because the victim was not an expert on guns or failed to identify the exact make and model of the firearm employed. (See Monjaras, at p. 1434.)" (People v. Law (2011) 195 Cal.App.4th 976, 984; see People v. Hunter (2011) 202 Cal.App.4th 261, 277 [Monjaras stands for proposition that circumstantial evidence alone is sufficient to support finding that object used by robber was firearm].)
Monjaras stated, "Common sense and common experience illustrate that little has changed since 1927, when a court astutely observed that criminals 'do not usually arm themselves with unloaded guns when they go out to commit robberies' (People v. Hall (1927) 87 Cal.App. 634, 635-636). If anything, with the proliferation of handguns in America since 1927, robbery has become a more dangerous crime today because of the greater likelihood that victims will protect themselves by using deadly force against the robber. Consequently, it is all the more unlikely today that robbers use toy guns or unloaded or inoperable weapons." (Monjaras, supra, 164 Cal.App.4th at p. 1437.)
Appellant advances the same mischaracterization of Monjaras in his argument that public policy supports the Legislature's decision to impose the Penal Code section 12022.53 enhancement only in cases involving an actual firearm because crimes involving gun replicas or items such as air guns are less dangerous. Monjaras does not undermine this Legislative distinction. The cases appellant offers to show that (contrary to his reading of Monjaras) "applying the statute just as the Legislature enacted it will not prevent imposition of an arming sentence enhancement in every case where the 'gun' displayed during a crime is not recovered" simply involve circumstantial evidence that appellant views as stronger than in Monjaras. (People v. Green, supra, 166 Cal.App.3d 514 [when arrested shortly after robbery, defendant had bullets in pocket]; People v. Aranda, supra, 63 Cal.2d 518 [shells found in defendant's bedroom]; People v. Law, supra, 195 Cal.App.4th 976 [one witness saw gun fire, another heard it " 'clock' " immediately prior to firing and caught hand in mechanism during struggle with defendant].) Monjaras does not preclude a determination that circumstantial evidence in a particular case is insufficient to prove the apparent gun was not in fact a firearm within the meaning of the enhancement statute. (See People v. Hunter, supra, 202 Cal.App.4th at p. 277.)
Appellant argues that the juvenile court's remarks about the firearm enhancement show that the court, relying on Monjaras, failed to understand that the law requires proof beyond a reasonable doubt that an actual firearm was used in order to impose a Penal Code section 12022.53 enhancement. In explaining its findings, the court stated, "with regard to the gun enhancement, the rule is that if it walks like a duck and quacks like a duck, it's a duck. You don't actually have to have a gun. If it appears to be a real firearm then the enhancement has been proven. [¶] I do find that a gun was used by this minor. I do credit the victim's testimony, and the court does find the [firearm] enhancement to be true, and I find that beyond a reasonable doubt, as well."
The court's understanding, as reflected in these remarks, is the same as ours: A Penal Code section 12022.53 enhancement requires proof beyond a reasonable doubt that the defendant used a firearm within the meaning of the statute as opposed to something like a toy, an air gun or a BB gun. But that proof can be supplied by circumstantial evidence, including, in appropriate circumstances, a witness's observation. As the trial court indicated, it is not necessary that the actual gun be produced.
The question remains whether the evidence in the present case is sufficient to support the juvenile court's finding that appellant used a "firearm" in the commission of the robbery. Appellant maintains it is not, because while the victim testified that he thought the gun was real, he did not articulate a basis for this belief such as hearing it fire or feeling its weight, and he admitted he was "guessing" that it was made of metal. The latter point is based on testimony to which the juvenile court sustained an objection. The former is in effect an argument that a victim's visual observation of a weapon cannot be sufficient to prove its character. This is the argument Monjaras rejected.
Appellant's characterization of the prosecutor as having "effectively conceded" the enhancement was not proven is inaccurate. Appellant quotes the prosecutor's remarks as follows: "I think the firearm enhancement is a much closer call. We really do only have his identification that it looked like a real gun, that it appeared to be a real gun. As [defense counsel] cross-examined him on, does he have, unfortunately, some familiarity with BB guns, and he was sure this particular one was a firearm. So I think that is all of the evidence we have on the firearm that was never recovered . . . ." This quotation omits the last part of the prosecutor's argument on this point: ". . . and so the case really comes down to do you believe the identification in court, and if you do, the minor, it should be found true, if you don't, then he's not." These remarks followed the prosecutor's argument on the robbery allegations, which responded to defense counsel's argument that the inconsistencies between C.U.'s testimony and what he told the police at the time of the incident left a reasonable doubt whether he was the perpetrator and "much, much more than a reasonable doubt as to whether or not this was a real gun." Addressing the robbery allegations, the prosecutor argued that despite the inconsistencies, C.U. was not inconsistent in his identification of appellant as the driver, which was corroborated by the fact that C.U.'s property was found in the minivan at the address where the incident occurred. The prosecutor then made the above remarks about the enhancement. In context, it is clear the prosecutor was not conceding any lack of proof but simply acknowledging that unlike the robbery allegations, as to which the victim's testimony was corroborated by other evidence, the enhancement was supported solely by the victim's testimony.
The Monjaras court began its opinion by observing that it had thought claims of insufficient evidence based on the inability of the victim to say whether a gun used in a robbery was "a gun or a toy" "had been put to rest," and it was publishing the opinion "to say in no uncertain terms that a moribund claim like that raised by defendant has breathed its last breath." (Monjaras, supra, 164 Cal.App.4th at p. 1435.)
C.U. described being confronted by appellant and a second individual, each holding what appeared to be a handgun at his side, as appellant demanded C.U.'s belongings. C.U. testified that while he was "not familiar" with guns so as to be able to say "what kind or whatever," it looked "real" rather than fake and "It was a handgun. I know that for sure." C.U. said he had "been in places where they have [handguns]" and had "seen cops come in with them," and the gun he saw appeared to be the same type of gun, "just a normal handgun." The juvenile court found C.U.'s testimony credible. As the Monjaras court said, "[Appellant] was not engaged in a childhood game of cops and robbers; the robbery was real, and the evidence supports a reasonable inference that the pistol he used was a real firearm, not a toy. . . . [¶] . . . [¶] Simply stated, when as here a defendant commits a robbery by displaying an object that looks like a gun, the object's appearance and the defendant's conduct and words in using it may constitute sufficient circumstantial evidence to support a finding that it was a firearm within the meaning of [Penal Code] section 12022.53, subdivision (b)." (Monjaras, supra, 164 Cal.App.4th at pp. 1435, 1437.)
II.
Appellant challenges the juvenile court's decision to commit him to the DJJ rather than the Youth Offender Treatment Program (YOTP) at Contra Costa County Juvenile Hall, the placement for which defense counsel advocated. Appellant argues the disposition order should be vacated for four reasons: The order was made without a complete evaluation of appellant's "condition and needs"; appellant's "excellent progress" in high school and desire to continue his education in college was not a legitimate reason for a DJJ commitment; the court improperly relied upon personal experiences not reflected in the record in making its dispositional decision; and the record does not support conclusions that appellant would benefit from DJJ commitment or that less restrictive alternatives would be inappropriate.
Under section 734, "No ward of the juvenile court shall be committed to the Youth Authority 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 Youth Authority." In determining the appropriate disposition, the court is required to consider the probation officer's report (§ 706) and, specifically, " '(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.' " (In re Jonathan T. (2008) 166 Cal.App.4th 474, 484-485, quoting § 725.5.)
"A commitment decision is reviewed on appeal for abuse of discretion, indulging all reasonable inferences to support the juvenile court's judgment. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) '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.' (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) '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 M.S. (2009) 174 Cal.App.4th 1241, 1250.)" (In re Edward C. (2014) 223 Cal.App.4th 813, 829 (Edward C.).) "An appellate court will not lightly substitute its decision for that rendered by the juvenile court," and "will not disturb . . . [the] findings [of the juvenile court] when there is substantial evidence to support them." (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.)
The probation department recommended that appellant be committed to DJJ based on the seriousness of his offense, his continued and increasingly serious criminal behavior and apparent lack of remorse, the need for a secure setting due to his history of absconding from placement, and his need for services that could be provided at DJJ and exceeded those available in other placements. The probation report discussed concern that appellant's continuing delinquent behavior presented a risk to public safety, noting not only the offenses themselves but that appellant denied involvement in the present offense and appeared to lack remorse, initially provided false identification to the police and gave his true identity only after "continuous questioning," and told the probation officer he never drove his grandmother's van but had admitted to the police that he drove it on occasion. The probation officer also indicated concern that appellant's claim of not being addicted to marijuana despite admittedly using it "on a regular basis" was a barrier to rehabilitation. Appellant had been assessed as having a high risk level for re-offense.
Given the services appellant had been provided at the group home during his two stays there, the first for 206 days and the second for 334 days, the probation officer concluded it was "apparent" that services offered thus far had not been successful and continued provision of services was crucial. These services needed to be provided "in a setting where he is most receptive to receiving them" and there was a "high possibility" he would abscond if placed in an open setting. The probation report included a lengthy description of services offered by DJJ that were believed to meet appellant's needs, including several cognitive-behavioral social skills programs, substance abuse programs, post-secondary education programs, three levels of mental health care and programming, and programs related to reentry to the community. The report provided the results of screening appellant for other potential placements, including the determination that he was "technically eligible" but not appropriate for YOTP because the combination of his offense, his lack of remorse and his escalating criminal behavior made him "unsuitable" and a "secure program that offers additional services for a longer duration appears to be more appropriate."
According to the probation report, appellant received mental health services from March 2012 to May 2013, therapeutic behavioral services from September 2010 to March 2011 and services from the Youth Services Bureau from May 2010 to December 2012, and was receiving mental health services in juvenile hall. While in the group home, from September 2013 to the beginning of April 2014 and from June 2014 to May 2015, he received individual counseling and group counseling, mental health therapy, drug treatment counseling, anger management counseling and "independent living skills."
Appellant was determined to be "technically eligible" but not appropriate for out of home placement because a more secure setting was needed for both his rehabilitative needs and community safety, as well as because once he completed the remaining 21 credits to finish high school and turned 18, he would not be able to remain in a group home. He was ineligible for the Orin Allen Youth Rehabilitation Facility (OAYRF) due to his firearm use in commission of the offense, and "inappropriate" due to the seriousness of the offense and his history of absconding from placement, as OAYRF is an "unlocked/open minimum security facility." He was not an "acceptable" candidate for Bar-O Boys Ranch because of his "blatant denial of the allegation" and his "being consumed with what will happen to him," and Bar-O was "not suited for a youth who has graduated high school as high school attendance is large part of its program." DJJ determined that the current offense qualified appellant for DJJ commitment; he would be a "Category Four" and his parole board date would be two years from the date DJJ accepted the case.
At the dispositional hearing, the probation officer stated that YOTP was "not equipped with the resources that the minor needs specifically on the counseling and also on the educational part. DJJ offers college courses in addition to vocational training." The prosecutor agreed with the DJJ recommendation, noting the escalation of appellant's behavior and better post-secondary educational opportunities at DJJ, and opining that appellant needed more "intervention" and "rehabilitation" than YOTP could provide while DJJ had resources like continuing education and vocational training to give him the opportunity to "improve himself" rather than "continuing in a criminal lifestyle."
Defense counsel agreed that appellant required a secure facility but argued that YOTP would be appropriate because it was secure, appellant had shown he could behave at juvenile hall, where YOTP was located, and the roughly 14-month program would allow appellant to complete his education and "have some programming that hopefully will put him on the right track." Defense counsel believed it would be "counterproductive" to send appellant to DJJ with "some really hardened juveniles, a lot of gang members" and stated that opportunities for post-secondary education should not be the basis of the commitment decision.
The probation report stated that no negative incident reports for appellant had been received from juvenile hall and staff on the unit where he lived reported that he had "displayed satisfactory behaviors toward staff and peers."
The probation report related appellant's statements that he hoped to be committed to Bar-O, would prefer commitment to YOTP than DJJ because he feared for his safety at DJJ, was afraid his college education would be delayed if he was committed to either YOTP or DJJ, and hoped he would receive services that would help him pursue educational goals, individual counseling and "AB12" services. He admitted marijuana use but did not believe he needed drug treatment therapy.
We take this to be a reference to Assembly Bill No. 12, legislation adding provisions for continuing juvenile court jurisdiction and transitional services after a minor turns 18. (See § 391.)
According to the probation report, appellant was in 12th grade in the high school at juvenile hall and had earned 199.87 of the 220 credits needed to graduate. Prior to his detention at juvenile hall, he had not attended school for approximately nine months.
After hearing arguments, the court expressed the view that DJJ was not what the CYA had once been and, having visited the DJJ, it had "fewer concerns about putting a kid there" and having "him come out worse than when he came in." The court saw the issue as "what could be done to keep [appellant] out of prison" in the future, given the seriousness of his offenses, and felt education was a factor because appellant was close to graduating from high school and YOTP did not have college correspondence courses. The court stated, "DJJ does have more resources in my analysis in seeing them both. The probation report indicates that [appellant] has a high-risk level to re-offend. So I think we need to deal with that and make sure, [appellant], that you—you get everything you can so that you don't go on with this lifestyle because it's a dead end for sure and I'm really concerned for you. [¶] So I am going to follow the recommendation because I do think it's in your best interest. It's not punishment. I'm not punishing you. I think it's the best way to get you on the straight and narrow. And also I want you to engage in the educational programs that they offer there that they're not going to offer at YOTP."
Appellant argues, first, that the dispositional order must be vacated because the juvenile court did not have a current social study in that appellant had last had a psychological evaluation in 2012 and the present probation report had no information about his progress in the intervening four years. Specifically, appellant notes that the report provided no information about how he performed at the group home where he spent nearly two years and suggests his performance "may well have been excellent, since he was accepted back after failing to timely return from home leave, and since he performed so well in juvenile hall." Appellant points out that the probation report does not contain any information on his reasons for leaving Warner and, emphasizing that Warner is more than 300 miles from Contra Costa County and therefore difficult to visit, suggests his "unauthorized return home may have been precipitated by the need to see his elderly grandmother and ill mother." Additionally, appellant contends the probation report "focused myopically" on his criminal conduct and, because of his "long history of family abuse and neglect," should have included "a close look at his psychological condition."
Appellant's assertion that the report provides no information about his progress between 2012 and 2016 might be accurate if addressed solely to formal psychological evaluations. But the examples which follow the assertion in his brief concern appellant's behavior at his placements during those four years, and in this respect appellant's argument is inaccurate and speculative. The record does contain information about appellant's performance at Warner, and it was not good: In a report after appellant's arrest on the present offense, the probation department related that prior to his absconding from Warner in May 2015, he was described by the program as "meeting the bare minimum standards of the program. Reportedly, he was unable to demonstrate that he had made a cognitive leap where he would identify with being a law-abiding citizen. Days before the minor absconded, Warner Mountain Group Home informed Probation that the program was contemplating terminating [appellant] from the group home due to his lack of progress within the placement." When the probation officer spoke with appellant at the end of January 2016, he had been gone from Warner for just about nine months and stated that he had been "staying at various locations" and "recently moved back home with his mother." Appellant's suggestion that he "may" have left Warner because of his need to be with his family is not supported by any evidence in the record and directly undermined by this report.
As for the absence of a new psychological evaluation, nothing in the record suggests one was necessary at this point. The probation report discussed appellant's family background, his parents' and brother's criminal conduct, his mother's substance abuse, related health problems and chronic depression; it observed that appellant and his siblings had been "negatively molded" by their environment, with agencies having to intervene to ensure the children's basic needs were met because appellant's mother had failed to provide a "healthy, supportive and drug-free home" and was unlikely to be able to provide a nurturing environment, and the grandmother's efforts to create a positive environment were "limited by her age, health, and number of people who she is attempting to care for." That the environment in which appellant was raised could result in a need for psychological treatment is obvious. But nothing in the record suggests the disposition of this case required an updated psychiatric evaluation. The 2012 evaluation was performed to assess then 12-year-old appellant's competency in connection with an alleged robbery. Under Penal Code section 26, children under age 14 are not capable of committing a crime "in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness." Appellant would have turned 14 in 2012. The logical inference is that the competency evaluation was conducted pursuant to section 26. The psychiatrist's conclusion that appellant was "immature and impaired in his decision-making skills" does not suggest a psychiatric condition that, if still present four years later, would reasonably affect the court's determination on disposition in light of the seriousness of appellant's offenses, his need for a secure placement, the lack of success of the many services he had received before and during his group home placements, and his age, level of schooling and expressed desire to continue his education. And, as the probation report noted, upon intake at DJJ, appellant would undergo an assessment including a mental health evaluation, psychological testing and psychological testing, and DJJ offers three levels of mental health care and programming depending on the intensity of an individual's needs.
Appellant's parents both had criminal histories, and his older brother was on juvenile probation. His father lived in Texas; his mother was unemployed. She was chronically depressed and had a history of alcohol and prescription drug abuse. The family had 25 closed referrals from social services, most for allegations of general neglect that were unfounded, inconclusive or "evaluated out." The last resulted in the dependency of appellant's sister, who tested positive for opiates when she was born in 2014. Extended family and the Youth Services Bureau was involved in supporting the family, and the siblings living at home were "considered to be under the care of their grandmother," who also lived there.
These charges were dropped and the case vacated.
Appellant argues that it was improper for the court to consider the availability of college correspondence courses at DJJ as a factor—even one among others—in committing him to DJJ. He views the juvenile court as having unreasonably put him at risk of developing a more serious criminal orientation as a result of exposure to serious juvenile offenders at DJJ (see In re C.H. (2011) 53 Cal.4th 94, 107; Miller v. Alabama (2012) ___ U.S. ___ [132 S.Ct. 2455, 2464, fn. 5]) as "the price of higher education." Noting the court's expression of frustration that YOTP did not have college correspondence courses despite having had them in the past and having been urged and even ordered by the court to provide them, appellant urges that the court should have ordered YOTP to provide the courses rather than sending appellant to DJJ because of YOTP's failure to do so.
If in fact the juvenile court has ordered YOTP to provide college correspondence courses and the program has refused to do so, there is obviously a problem with enforcement of the court's orders that warrants attention. But with respect to disposition in the present case, we do not understand the court to have intimated that it would have committed appellant to YOTP had it not been for the lack of opportunity for higher education. As we have said, the probation department reported that appellant had been determined to be "unsuitable" for YOTP due to the combination of the facts of the present offense, his lack of remorse and his escalating criminal conduct. According to the probation report, appellant was in need of a program requiring "additional services for a longer duration." The probation officer stated at the dispositional hearing that DJJ was being recommended because it "by far has more resources than the YOTP program" and YOTP "is not equipped with the resources that the minor needs specifically on the counseling and also on the educational part," and noted that DJJ offers both college courses and vocational training. The prosecutor urged that appellant was exhibiting an "acceptance and willingness to live a criminal lifestyle" and needed more "intervention" and "rehabilitation" than YOTP would give him, and that without resources like continuing education and vocational education to give appellant "opportunities to improve himself" and "other options" than a criminal lifestyle, he would not be in the best position to succeed. The court clearly placed significance on the availability of educational opportunities beyond high school because of the importance of education to rehabilitation and success in a law-abiding future. The court explained that DJJ had more resources and, because appellant had been assessed as at "high-risk level to re-offend," he needed to get "everything" he could to avoid him continuing in a criminal lifestyle.
Defense counsel stated that the YOTP program is "roughly 14 months."
The trial court was aware of the issue of putting minors into an environment that would do more harm than good: It noted, "you don't want to put a kid in a place that's going to make it . . . more hard and make it worse for him to have him come out worse than when he came in," and expressed that after visiting DJJ, it had "fewer concerns about putting a kid there" than it had prior to the reduction in population at DJJ and its change to focus on rehabilitation. Appellant was 17 years old, soon to "age out" of juvenile court, and his criminal conduct had progressed in seriousness. The court noted that robberies with firearms were "some of the most serious offenses that we see here" and described the issue as "what could be done to keep [appellant] out of prison" in the future. The court's decision to commit appellant to DJJ was based on a conclusion that as a high-risk offender who had committed increasingly serious offenses, appellant needed the resources available at DJJ and not available at YOTP—including but not limited to continuing educational opportunities. In essence, appellant's argument takes issue with the juvenile court's weighing of factors favoring a DJJ commitment against what appellant views as an overwhelmingly negative aspect of such commitment. We see no abuse of discretion.
Appellant also argues that the court's view of DJJ was improperly informed by an independent visit to DJJ. As we have indicated, the juvenile court judge stated that he had visited DJJ with a colleague and observed that the minors he spoke with there, including some he had committed, were "friendly," were not angry at him for having put them there, and were reported to be "doing well." Appellant equates this visit by the juvenile court judge with a trial judge's ex parte visit to an accident or crime scene at issue in a bench trial, such as in Noble v. Kertz & Sons Feed & Fuel Co. (1945) 72 Cal.App.2d 153 (Noble) and People v. Jackson (1990) 218 Cal.App.3d 1493. In Noble, the trial judge visited the scene of an automobile accident without consent of the parties, after the evidence at trial had been submitted for decision, and based his decision in part on personal observations that were contrary to the evidence introduced at trial. (Noble, at p. 158.) The judgment was reversed because permitting a trial judge to use "independent evidence on a controverted issue" to "support alone a finding otherwise not supported by other evidence, and, in fact, contrary to the evidence introduced" would deny the parties "the opportunity to explain or to supplement such observations, or to cross-examine the witness." (Id. at p. 160.) Jackson, in which the magistrate visited the site of a PCP laboratory during the hiatus between the preliminary hearings of two codefendants, similarly held the magistrate's ex parte view of the site improper, citing Noble, albeit not prejudicial in that particular case. (Jackson, at pp. 1505-1506.)
The situation in the present case is different. The judge did not visit DJJ in the context of appellant's case for the purpose of supplementing evidence presented in court. Rather, entirely separate from this case, the judge and a colleague visited DJJ to gain general familiarity with it—a laudable endeavor for a judge whose responsibilities include making dispositional orders in juvenile wardship cases. The court remarked that it had "the benefit of having used both YOTP and DJJ"—in other words, that it was familiar with both. That a juvenile court judge's decision on disposition would be informed by his or her familiarity with alternative placements—based on experience with prior dispositions, personal visits to facilities, conversations with colleagues, information gleaned from professional conferences, news reports and myriad other sources—is to be expected; it is reasonable to assume that a judge's experience with various dispositional alternatives will enhance his or her ability to evaluate available options. This does not amount to taking independent evidence in a specific case.
Nor is the court's visit to DJJ like the improper receipt of evidence related to sentencing in In re Calhoun (1976) 17 Cal.3d 75 or People v. Webster (1983) 143 Cal.App.3d 679. Calhoun reversed a sentence imposed after the court received an ex parte letter in which the prosecutor recommended consecutive sentences, stating that although positive identification was impossible, he personally believed the defendant shot two victims, and that the court had observed the defendant perjure himself in an alleged accomplice's trial. (Calhoun, at pp. 79, 83-85.) Webster invalidated a sentence imposed after the trial court personally called the California Youth Authority (CYA) and learned that the defendant, two months short of 18 years of age when he committed the offenses, would spend only about 18 months at CYA if committed there, instead of the 23-year sentence an adult would receive. (Webster, at pp. 683-686.) Here, the court did not receive ex parte evidence specifically pertaining to appellant's case; it simply referred to its general familiarity with the alternatives under consideration for disposition.
In arguing there was insufficient evidence that he would benefit from commitment to DJJ or that YOTP would be inappropriate, appellant maintains that the court's order violates the requirement that the court consider the proximity of out of home placements to the minor's home and order the placement in "closest proximity" that meets the minor's best interests and needs. (In re Nicole H. (2016) 244 Cal.App.4th 1150 (Nicole H.).) " 'Although public safety and the rehabilitation of the minor (presumed to serve the best interests of the delinquent minor) are the preeminent goals of the juvenile law relating to delinquent minors, it is also true that family reunification and the reintegration of the minor into his family are statutorily recognized to be important and complementary goals.' (In re James R. (2007) 153 Cal.App.4th 413, 434.)" (Nicole H., at pp. 1155-1156.) We have recognized that the issue of parent-child visitation implicates fundamental constitutional rights that may be limited only on the basis of compelling interests. (In re James R., at p. 434.) But those compelling interests include "the protection and safety of the public, the rehabilitation of the delinquent minor, and the minor's 'best interests' in receiving the type of care that would 'enable him or her to be a law-abiding and productive member of his or her family and the community.' " (Ibid., quoting § 202, subds. (a), (b), & (d).)
Section 727.1, subdivision (a), provides, in part, "When the court orders the care, custody, and control of the minor to be under the supervision of the probation officer for foster care placement pursuant to subdivision (a) of Section 727, the decision regarding choice of placement, pursuant to Section 706.6, shall be based upon selection of a safe setting that is the least restrictive or most family like, and the most appropriate setting that meets the individual needs of the minor and is available, in proximity to the parent's home, consistent with the selection of the environment best suited to meet the minor's special needs and best interests." The italicized language is a change that took effect on January 1, 2016; previously, and at the time relevant to Nicole H., it read "in close proximity." Section 706.6, continues to state that "[a]n appropriate placement is a placement in the least restrictive, most family-like environment that promotes normal childhood experiences, in closest proximity to the minor's home, that meets the minor's best interests and special needs." (§ 706, subd. (c)(3)(B).)
Nicole H., supra, 244 Cal.App.4th at pages 1157-1160) required the juvenile court to reconsider its placement of the minor in a group home some 340 miles from home (in fact, the Warden program where appellant was previously placed) because the record was "devoid of any evidence or reasoning supporting a group home placement" so far from home. (Nichole H., at p. 1157.) The juvenile court had previously recommended that the probation department consider two programs that were close to home, there was no evidence in the record that the distant placement was in the minor's best interest, and there was no explanation for the selection of that placement. (Id. at pp. 1157-1160.)
Here, by contrast, the court explained its reasons for concluding appellant would benefit from commitment to DJJ and finding YOTP inappropriate. The commitment to DJJ resulted in appellant being placed in Stockton—farther from his home in Richmond than YOTP, but, at roughly 85 miles, far closer than Warden, the problematic placement in Nicole H. and appellant's prior placement. The court's decision was supported by the information provided in the probation report: Due to the nature of his offense, the increasing seriousness of his criminal conduct and his lack of remorse, appellant needed more rehabilitation than YOTP could provide, while DJJ had more resources from which appellant could benefit in terms of both education and vocational training and mental health care and programming. The probation report identified the services appellant needed as including "drug treatment therapy, individual counseling, mental health therapy, conflict resolution skills, anger management skills, victim empathy skills, continued educational assistance, and independent living skills" and described interventions offered by DJJ that the probation officer viewed as best able to meet appellant's needs: "Aggression Interruption Training, a "cognitive-behavioral intervention that teaches young people how to improve their social skills, consider other people's perspectives and control their anger"; additional social skills programs; a "cognitive behavioral program for male offenders assessed as presenting a greater likelihood of re-offending"; a substance abuse intervention program for individuals with "moderate to high need" in this area; journal based programs aimed at exploring factors related to incarceration, behaviors and circumstances needing change before return to the community, practical life skills related to re-entry, and harm caused by the minor on victims; post-secondary education programs; mental health treatment; and a re-entry program to prepare for release and enhance contact with community based services and support. While the probation report does not describe specific components of the YOTP program, the department's formal screening process had determined that appellant needed "additional services for a longer duration" than what was available through YOTP. The evidence supports a conclusion that appellant would benefit from the commitment to DJJ and that YOTP would not be appropriate.
Googlemaps.com offers three routes between Richmond and the facility at which appellant is placed, with lengths of 80.7, 84, and 90.5 miles.
III.
Appellant additionally claims the order committing him to DJJ must be reversed because he received ineffective assistance of counsel at disposition. He contends, first, that his attorney failed to take a number of steps that he believes would have resulted in his being placed at YOTP rather than DJJ and, second, failed to argue for a discretionary maximum term of confinement shorter than the maximum term authorized by statute.
To prevail on this claim, appellant bears the burden of demonstrating both that his attorney's performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and that he was prejudiced—that there is a reasonable probability the result of the proceeding would have been more favorable in the absence of counsel's errors. (People v. Vines (2011) 51 Cal.4th 830, 875-876; People v. Dennis (1998) 17 Cal.4th 468, 540; In re Angel R. (2008) 163 Cal.App.4th 905, 909.) "A 'reasonable probability' is one that is enough to undermine confidence in the outcome." (Dennis, at p. 541, quoting Strickland v. Washington (1984) 466 U.S. 668, 694.) "[C]ourts must 'judge the reasonableness of counsel's [challenged] conduct on the facts of the particular case, viewed as of the time of counsel's conduct[.]" (Roe v. Flores-Ortega (2000) 528 U.S. 470, 477.)
Appellant's argument with respect to the DJJ commitment order is that defense counsel failed to build a strong case for committing him to YOTP instead. Appellant contends counsel "could have" ordered a psychological report, located counselors and teachers at juvenile hall who liked appellant and wanted him to remain there, and pursued interviews of staff at Warner and family members that "might also have thrown light upon [appellant's] character, strengths and problems," all of which would have enabled counsel to portray appellant "as an individual, with sympathetic qualities and particular rehabilitative needs." Counsel "could have" hired a juvenile corrections specialist, appellant maintains, to explain why YOTP would be a better placement, and had this expert explain "the importance of continuity in-county from the standpoint of services when a minor is returned home" as well as problems with DJJ such as gangs and violence. Counsel "should have" written a "Defense Dispositional Report" to counterbalance the probation report recommending DJJ, and "could have" called the juvenile corrections expert and evaluating psychologist as expert witnesses, and appellant's teachers and counselors as witnesses. Appellant's family members, he suggests, "might have" testified about the comparative difficulty of visiting at DJJ rather than at an in-county placement.
Appellant's argument is based on speculation. He does not suggest what a psychological evaluation would reveal, or what counselors, teachers, group home staff or family members would say that would be likely to alter the juvenile court's evaluation of appellant, his needs and the alternative placements. Moreover, the juvenile court's remarks about appellant, his offenses, risk of reoffending and rehabilitative needs make clear that it did consider appellant "as an individual." Appellant argues that defense counsel "seems to have assumed" the juvenile court judge had a "realistic understanding of conditions at DJJ" while the record suggests the judge was "misled by what authorities arranged for him to see" when he visited the facility. We do not understand the court's remarks to indicate that it believed DJJ was entirely free of its historical issues, but rather that it was the appropriate placement for appellant, given his rehabilitative needs and the greater resources of DJJ to meet them, and that progress had been made at DJJ such that the court did not have the hesitation it once had about committing a minor there. Appellant offers no basis for concluding there is a reasonable probability the juvenile court would have decided to commit him to YOTP if his attorney had done the things appellant argues could or should have been done.
The second ground for appellant's claim of ineffective assistance of counsel is that his attorney failed to ask the juvenile court to impose a maximum period of confinement shorter than the maximum term an adult would serve for the offense. When a minor within the jurisdiction of the juvenile court is committed to DJJ, the court is required to state the maximum period of physical confinement. (§ 731, subd. (c); In re Julian R. (2009) 47 Cal.4th 487, 491 (Julian R.).) Under section 731, subdivision (c), a minor 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 Division of Juvenile Facilities 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." "The statute permits the juvenile court in its discretion to impose either the equivalent of the 'maximum period of imprisonment that could be imposed upon an adult [for] the offense or offenses' committed by the juvenile (§ 731, subd. (c)) or some lesser period based on the 'facts and circumstances of the matter or matters that brought or continued' the juvenile under the court's jurisdiction (ibid.)." (Julian R., at p. 498.)
The probation report recommended a maximum term of 15 years and 155 days, corresponding to the maximum sentence for an adult, less credits for appellant's time in custody. At the dispositional hearing, the calculation of this term was discussed but there was no reference to the possibility of a lesser maximum term of confinement. The form commitment order, JV-732 (revised Jan. 24, 2012), in the section for findings on the term of confinement, sets forth two potential findings, the first stating the maximum period of confinement and the second stating "[t]he court has considered the individual facts and circumstances of the case in determining the maximum period of confinement." Both are checked.
This term consisted of the maximum five years for the present robbery (Pen. Code, § 213, subd. (b)), plus 10 years for the gun use enhancement (Pen. Code, § 12022.53), and one year (one-third of the middle term) for the prior robbery.
In Julian R., supra, 47 Cal.4th at page 499, the California Supreme Court held that where the juvenile court set the maximum period of confinement at the maximum adult sentence and did not state on the record that it had considered the facts and circumstances that might justify a lower confinement period, "we presume . . . that (1) the 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' (§ 731, subd. (c)), and (2) the court determined that [the minor's] appropriate confinement period was a period equal to the maximum adult term." (Julian R., at p. 499.) The court explained that the contrary inference urged by the defendant— that the juvenile court's silence indicated it did not consider a shorter confinement period—would have required the reviewing court to ignore the " 'cardinal principle of appellate review' " that a " ' " 'judgment or order of the lower court is presumed correct[, and a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.' " [Citation.]' As this court has stated, 'we apply the general rule "that a trial court is presumed to have been aware of and followed the applicable law. [Citations.]" ' (People v. Stowell (2003) 31 Cal.4th 1107, 1114.)" (Julian R., at pp. 498-499.)
Here, while the juvenile court did not discuss the possibility of a shorter term of confinement on the record, it did check the box on commitment order indicating that it had "considered the individual facts and circumstances of the case in determining the maximum period of confinement." By doing so, the court demonstrated that it exercised its discretion and determined the adult maximum term sentence was the appropriate maximum period of confinement in this case. (See Julian R. supra, 47 Cal.4th at pp. 498-499 & fn. 4.) We see no reasonable probability the court would have reached a different decision if defense counsel had expressly asked the court to consider a shorter confinement period. Appellant maintains that "a very strong argument could have been made" for a shorter confinement period because the maximum period imposed included 10 years under Penal Code section 12022.53 "for displaying a 'gun' which probably was not real." This suggestion that there is a reasonable probability the juvenile court would have decided not to include the firearm use enhancement in determining the appropriate maximum period of confinement seeks to impose appellant's view of the evidence on the juvenile court judge, who necessarily rejected the theory that the gun "probably was not real" in finding beyond a reasonable doubt that appellant committed the offense by means of an actual gun. Indeed, the court's comment that "robberies with firearms" are among "the most serious offenses that we see here" seriously undermines appellant's attempt to portray this as a comparatively minor offense for which he should have received a much more lenient disposition. In light of the court's stated views regarding the seriousness of appellant's offenses and its indication on the commitment order that it had "considered the individual facts and circumstances of the case in determining the maximum period of confinement," appellant has not demonstrated prejudice from any failure of counsel to expressly request consideration of a shorter maximum term of confinement.
The two findings specified on the form order used in the present case are the same as on a version of the form the Julian R. court referred to as having been "newly revised" (after the lower court proceedings in that case) to require the juvenile court "both to state the duration of the maximum period of confinement and to acknowledge that it has 'considered the individual facts and circumstances of the case in determining the maximum period of confinement.' " (Julian R., supra, 47 Cal.4th at p. 498.) Commenting that it would have been "better practice" for the juvenile court to have stated on the record that it had considered a shorter confinement period "based on the 'facts and circumstances' " of the minor's offenses and exercised its discretion not to order a shorter period, Julian R. stated that "[i]n light of newly revised Judicial Council form JV-732 requiring the juvenile court to acknowledge its consideration of the crime's facts and circumstances ([47 Cal.4th at] p. 498, ante), in the future a court's exercise of its discretion will be evident." (Id. at p. 499, fn. 4.)
DISPOSITION
The orders are affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Miller, J.