NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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1 Filed 6/23/11 In re Cesar R. CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE In re CESAR R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, CESAR R., Plaintiff and Respondent, v. Defendant and Appellant. A (Contra Costa County Super. Ct. No. J ) Defendant Cesar R. (appellant), born in May 1994, appeals a juvenile court order committing him to the Division of Juvenile Facilities (DJF) after he admitted committing voluntary manslaughter with the use of a deadly weapon (Pen. Code, 192, subd. (a), 12022, subd. (b)(1)) and was declared a ward of the juvenile court. Appellant contends the court abused its discretion in committing him to DJF and the dispositional hearing was fundamentally unfair in violation of his right to due process. The parties agree that the DJF order of commitment must be modified to correct a clerical error; in all other respects, we affirm. BACKGROUND As of February 2009, appellant s mother, Carmen R., had been separated for several months from Manuel L., with whom she had lived for 11 years. 1 Carmen had a 1 They had had problems due to Manuel s alcoholism and verbal abuse. 1

2 son with Manuel, Angel, who was appellant s half-sibling. On the morning of February 10, after Carmen returned home from grocery shopping, Manuel entered the home without her knowledge. She felt three blows to her head and shoulder which Manuel delivered with a baseball bat. Manuel threatened to kill her for leaving him and began to strangle her. When she told him she would not leave him for anyone he stopped his attack. He was arrested at the scene. Carmen was taken to the hospital, where she received 35 stitches to her forehead. When she returned from the hospital, her children saw her bandaged head. Carmen told appellant about the attack and said there was a lot of blood. Angel told appellant that Manuel intended to cut Carmen s throat and take Angel away. In June 2009, Manuel pled no contest to assault with a deadly weapon and admitted a domestic violence great bodily injury enhancement in exchange for a suspended five-year prison term, a one-year jail term, and an order that he stay away from Carmen. Appellant threatened to retaliate against Manuel after Manuel was released from jail. After Manuel s release from jail, and despite the stay away order, Manuel visited appellant s home to see Angel, without incident. About three or four weeks before the instant offense, appellant saw Manuel on the street and wondered why he was out of jail so soon. On January 18, 2010, appellant was riding bikes with some friends. After drinking some beer, he saw Manuel walking with another man. Appellant began thinking that Manuel could have killed Carmen and that he and Angel could have been in foster care. Appellant became angry. After seeing Manuel walk by a second time, appellant decided to get the baseball bat he had seen some children playing with and go after Manuel. Appellant told his friend Henry that it was payback time. Appellant returned with an aluminum bat and Henry retrieved a shower curtain rod from the trash. Appellant, wearing a knit cap with eye and nose holes, approached Manuel and began striking him in the head with the bat. Henry held off Manuel s companion with the curtain rod. After Manuel fell to the ground, appellant continued striking him with the 2

3 bat. Appellant handed the bat to another person and told him to run; appellant and Henry fled. An autopsy concluded that Manuel died of blunt force trauma to his head and chest. His injuries included crushed facial bones, a large laceration above his eye, a bruised eye orbit, hemorrhaging of the left eye, injury to his nose, lacerations of the lips and chin, broken teeth, and fractures of the jaw, sternum and ribs. Appellant was arrested on February 8, He initially denied killing Manuel and possessing a baseball bat. Thereafter, he admitted the killing and said he struck Manuel in the face five times. He broke down crying but then said he did not feel bad about what happened and that he would not change anything if he could take everything back and do it again. He said the offense was not planned and said, I was just mad for what [Manuel] did to my mom. Probation Department Report Probation officer Tanaka Cato s August 2010 report stated that appellant denied intending to kill Manuel, but wanted to hit Manuel the way Manuel hit his mother. Appellant said he did not plan the attack and did not encourage Henry to participate. Appellant expressed remorse for what [he] did to [Manuel s] family. He admitted using marijuana since age 15 and drinking alcohol on two occasions. Appellant received anger management counseling his entire seventh grade school year and said it helped him control his anger. Carmen described appellant as not violent, obedient and helpful at home. Appellant had had no previous referral to the probation department. While detained in juvenile hall, appellant s grades improved. His behavior while detained was good and he was respectful. Due to the seriousness of his offense appellant was found unsuitable for commitment to the Orin Allen Youth Rehabilitation Facility, Fouts Springs Youth Facility, Bar-O Boys Ranch, Youthful Offender Treatment Program, and Boys Republic. Appellant was screened and accepted to the DJF, where he would be a category II resident and eligible for parole after four years. The Cato stated that although appellant expressed remorse, he told police detectives he did not feel bad for his actions and would not do things differently if given 3

4 the chance. Although appellant denied the offense was planned, the fact that [he] was able to quickly retrieve a bat and, according to a witness, encourage his co-responsible to join him, shows some level of planning as well as his intent to cause serious injury [to] the victim. Cato concluded that appellant is a threat to the community and must be held in a locked facility. The callous behavior he displayed in the instant offense supports that the most serious consequences must be imposed for the protection of the community as well as for the rehabilitation of the minor. Therefore, a commitment to [DJF] is the only option. While there he would be in a secure and highly structured environment, attend school, attend classes in anger management, decisionmaking and victim awareness, and be provided substance abuse counseling. Defense Disposition Analysis An August 2010 disposition analysis by defense correctional consultant Dayle Carlson noted that the offense was particularly brutal. Appellant said he had minimized his drug and alcohol use to the probation officer; he admitted using marijuana almost daily and drinking infrequently. Although appellant was a special education student in elementary and middle school, he was a mainstream high school student at the time of his arrest. His seventh grade referral for anger management courses was due to his defiance in the classroom and fighting. Koinonia Group Homes (Koinonia) interviewed appellant and accepted him for their long-term program, which lasts at least nine months. Koinonia, fundamentally a substance abuse program, would develop an individualized treatment program to address appellant s offense behavior and developing substance abuse problem. Carlson opined that the following factors militated in favor of a treatment program rather than DJF: This is appellant s first juvenile justice system referral. There is no indication he presents a general threat to the community; the offense is very specific to the events and relationships involved in the offense. Nothing suggests appellant has a generally violent nature. Appellant is not criminally sophisticated and the offense was unplanned. Appellant is learning disabled and struggles in school. Two treatment evaluators concluded he is motivated for treatment and can be successful. However, 4

5 Carlson acknowledged that the violent, vicious nature of the offense and appellant s ambiguous remorse are troubling supported a DJF commitment. Carlson s report concluded, The [c]ourt, in this writer s opinion, is confronted with a dilemma. [Appellant] can benefit from treatment and can be successful, but the nature of this offense is quite serious. A letter from Koinonia stated its program would be an appropriate placement for appellant. It recognized that, given appellant s offense, his behavior and progress would have to be such that it would not present or demonstrate harm to him, the other residents and staff. It opined that appellant could greatly benefit from its supervision, therapy, group processes, training, information, resources and individualized treatment plans. September 2010 Disposition Hearing At the September 2, 2010 disposition hearing, Carlson testified as an expert in juvenile disposition and probation; his testimony was consistent with his disposition evaluation. He said that Koinonia is not a locked facility. He conceded that DJF provides some of the same treatment Koinonia would provide appellant and that DJF s treatment offerings had improved in the previous 18 months. However, he opined that in terms of treatment services, community-based treatment programs were better than DJF. He also opined that DJF was woefully inadequate at reducing ward-on-ward violence. Cato testified that her opinion regarding the disposition for appellant had not changed since the time of her report. Carmen testified that recently, when she visited appellant in juvenile hall, he said he had been feeling sad and angry. She expressed willingness to participate in family counseling. Appellant testified he was receiving special education services at juvenile hall. He described what he did to Manuel as wrong and said, I had no business hitting him or killing him that bad. He expressed sorrow for Manuel s family members and for killing Angel s father. Appellant said if he could he would change what Manuel did to Carmen and the offense would not have happened. Appellant said he would participate in drug and alcohol counseling and one-on-one counseling. 5

6 The court noted that this was not a garden variety murder and that it had taken the circumstances of the killing in consideration in encouraging the prosecution to permit appellant to admit the offense as voluntary manslaughter. The court stated, There may have been some provocation for some assault, but there is no provocation that the [c]ourt can consider that would justify [appellant s] intentionally killing this person and beating him until he was dead. [ ] I do think that he had time to think about it. I do think that he thought about it for some time before he did it. I don t say it was a long time in planning, but acquiring the mask and acquiring... the weapon and coming after him. The court also noted that appellant killed Angel s father and, instead of giving himself up, discarded the weapon and initially lied to the police when he was found. The court stated, This was... very, very vicious conduct. The court noted that appellant does well in a locked facility. It found that Koinonia was not an appropriate placement because it is unlocked and does not focus on various aspects of appellant s character and helping him overcome the conduct that brought this incident about. The court found that appellant was not sorry for what he did, although he was sorry for the victim s family. The court opined that appellant has a tremendous anger-management problem. The court concluded that DJF was an appropriate placement, imposed a maximum confinement term of five years (Welf. & Inst. Code, 731, subd. (c)), 2 and adjudged appellant a ward of the court ( 602). DISCUSSION I. Appellant s Commitment to DJF Was Not an Abuse of Discretion Appellant contends the court s decision to commit him to DJF was an abuse of discretion because no evidence was presented that a less restrictive placement would have been ineffective or inappropriate. An appellate court reviews a DJF commitment decision for abuse of discretion. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) In conducting our abuse of discretion review, we must indulge all reasonable inferences to support the juvenile 2 All undesignated section references are to the Welfare and Institutions Code. 6

7 court s decision and will not disturb its findings if they are supported by substantial evidence. (In re Robert H. (2002) 96 Cal.App.4th 1317, ) The record must demonstrate both a probable benefit to the minor by a DJF commitment and the inappropriateness or ineffectiveness of less restrictive alternatives. (In re Angela M., supra, 111 Cal.App.4th at p ) However, these must be considered with the purposes underlying the juvenile court law: protection and safety of the public ( 202, subd. (a)) and care, treatment and guidance that is consistent with [the minors ] best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances ( 202, subd. (b)). (See In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684.) One of the primary objectives of juvenile court law is rehabilitation, and the statutory scheme contemplates a progressively more restrictive and punitive series of dispositions starting with home placement under supervision, and progressing to foster home placement, placement in a local treatment facility, and finally placement at the DJ[F]. [Citation.] Although the DJ[F] is normally a placement of last resort, there is no absolute rule that a DJ[F] commitment cannot be ordered unless less restrictive placements have been attempted. [Citations.] A DJ[F] 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. [Citation.] (In re M.S. (2009) 174 Cal.App.4th 1241, 1250.) Appellant asserts that the juvenile court committed him to DJF solely because he killed a man. He argues there was no evidence suggesting a less restrictive facility would be ineffective or inappropriate and no evidence he suffered from a psychological condition or mental defect rendering him inherently dangerous. We conclude the court s rejection of a Koinonia placement and its commitment of appellant to DJF was not an abuse of discretion. The 15-year-old appellant donned a skitype mask, retrieved a baseball bat, encouraged a friend to accompany him, and beat Manuel to death. Following the killing, appellant discarded the bat and initially lied to the police. Carlson, the defense juvenile disposition expert, conceded the violent, vicious 7

8 nature of the offense and appellant s ambiguous remorse [were] troubling. Appellant was rejected for placement at every less restrictive program applied to except Koinonia. Appellant has drug and alcohol problems; he was drinking prior to the instant offense. Most significant is that appellant has a longstanding, tremendous anger management problem. He received anger management counseling in the seventh grade for fighting and defiance. Although he expressed remorse for Manuel s family and for killing Angel s father, appellant told the police he would not do things any differently if given the chance. Carmen testified that when she had recently visited appellant in juvenile hall he reported feeling angry. Given the violent, vicious and callous nature of the attack and appellant s longstanding anger management problem, the court could reasonably reject his request for the unlocked, less restrictive Koinonia placement. In addition, evidence that appellant did well in juvenile hall and the school within juvenile hall supports the court s determination that a more secure placement would benefit appellant. Appellant s assertion that the court erred in not having him psychologically evaluated lacks merit since the record before us does not reflect that appellant ever requested a psychological evaluation. We further conclude the court considered all the relevant facts prior to committing appellant to DJF and no abuse of discretion is demonstrated. II. No Due Process Violation Is Shown Appellant also contends the disposition hearing was fundamentally unfair in violation of his right to due process because: (1) he was denied the benefit of his plea bargain reducing his offense to voluntary manslaughter because the court treat[ed] the offense as first degree murder ; and (2) the court treated his positive performance in juvenile hall as a factor weighing in favor of a DJF commitment. He argues the case should be remanded with instructions to conduct a new disposition hearing at which his offense is treated as voluntary manslaughter and his positive performance at juvenile hall is treated as a factor weighing against a DJF commitment. The short answer is that appellant waived his due process issues on appeal by not raising them to the trial court below. (In re Brian K. (2002) 103 Cal.App.4th 39, 42 8

9 [ Because Brian K. did not raise a due process objection in the trial court, he may not raise it for the first time on appeal. ]; see also People v. Garceau (1993) 6 Cal.4th 140, [defendant waived argument that prosecutor s arguments to the jury violated his due process rights by failing to object at trial], overruled on other grounds in People v. Yeoman (2003) 31 Cal.4th 93, ; In re Josue S. (1999) 72 Cal.App.4th 168, 172 [waiver principles are, under normal circumstances, fully applicable to juvenile court dispositional hearings regarding probation].) 3 Appellant s waiver notwithstanding, no due process violation is shown. In making a disposition order, the juvenile court should consider all relevant and material evidence, including the age of the minor, the circumstances and gravity of the offense committed by the minor, and his or her previous delinquent history. ( 725.5; see In re Robert H., supra, 96 Cal.App.4th at p [current offense]; In re Jimmy P., supra, 50 Cal.App.4th at p [past performance as ward].) In In re Jimmy P., Division Three of this court held that the Harvey rule (People v. Harvey (1979) 25 Cal.3d 754), prohibiting a sentencing court from considering charges dismissed pursuant to a plea bargain, is inapplicable in juvenile wardship cases. (In re Jimmy P., at pp ) In re Jimmy P. and its progeny have concluded that section and other relevant policies of juvenile court law require the court to consider the broadest range of information in determining how best to rehabilitate a minor and afford him or her adequate care. (In re Jimmy P., at p. 1684; In re Robert H., at p ) Appellant cites no authority in asserting that the court unfairly considered his positive performance at juvenile hall as a factor in favor of a DJF commitment. Appellant s performance in the structured setting at juvenile hall was clearly a factor the court could consider in assessing how appellant 3 In In re Sheena K. (2007) 40 Cal.4th 875, , the California Supreme Court found that a minor s challenge to a vague and overbroad condition of probation was not forfeited for failure to raise it first to the juvenile court. The court reasoned that forfeiture did not extend to constitutional challenges that present pure questions of law. (Id. at pp ) The issues here are not pure legal issues; they involve factual determinations by the juvenile court. 9

10 might do in another secure setting and how he might do in a less secure setting. No due process violation is shown. III. The DJF Commitment Form Must Be Corrected Appellant contends, and the People agree, that the DJF commitment form erroneously reflects a maximum period of confinement of 12 years instead of the five years ordered by the court at the disposition hearing. The court s minute order is in accord that appellant was ordered to serve a maximum of five years at DJF. We agree the commitment form must be corrected. DISPOSITION The juvenile court is directed to prepare an amended DJF commitment form reflecting a maximum period of confinement of five years. The disposition order is otherwise affirmed. SIMONS, J. We concur. JONES, P.J. NEEDHAM, J. 10

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE A113846

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE A113846 Filed 2/16/07 In re S.S. CA1/5 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