In re A.R.

Filed 6/28/18

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re A.R., a Person Coming Under the
Juvenile Court Law.
D072389
THE PEOPLE,

Plaintiff and Respondent, (Super. Ct. No. J231848)

v.

A.R.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Browder

A. Willis, Judge. Affirmed.

Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant

and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Robin Urbanski, and Sabrina Y.

Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
 Minor A.R. (the Minor) challenges a dispositional order committing him to the

California Department of Corrections and Rehabilitation, Division of Juvenile Justice

(hereafter, DJJ). He argues the juvenile court abused its discretion in committing him to

DJJ, on the grounds there was no substantial evidence that a less restrictive placement

would be inappropriate or ineffective. He also argues the court erred by applying his

custody credits to the overall maximum term of confinement, instead of the lower

maximum term set by the court. In a supplemental brief, the Minor argues there was no

substantial evidence of probable benefit from the DJJ commitment, citing a recently

decided case, In re Carlos J. (2018) 22 Cal.App.5th 1 (Carlos J.). We reject these

contentions and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

At the time of the disposition hearing, the Minor was 18 years old. His history

with the juvenile justice system began when he was 13 years old, and a petition was first

filed against him. In August 2012, he admitted two counts of residential burglary (Pen.

Code, §§ 459, 460), and was declared a ward. He was placed at CFLC (California

Family Life Center) - Ranch Creek, and later at Aiming High Treatment Center.

In August 2013, the Minor admitted to misdemeanor appropriation of lost property

(Pen. Code, §§ 485, 488). He was placed at Quality Group Homes, Inc. Yale House, and

then on home supervision with his father.

In May 2014, the Minor admitted to burglary, robbery, and use of a deadly or

dangerous weapon (Pen Code, §§ 459, 211, & 12022, subd. (b)(1).). He was placed at

Center for Positive Changes.

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 In October 2014, the Minor again admitted to residential burglary. He was

committed to Breaking Cycles, then released to home supervision with his mother. He

also participated in Reflections North and the Reflections Day Program.

Between February and October 2015, the Minor admitted to various probation

violations, including use of force/fear on another person and leaving a court-ordered

placement without permission. In November 2015, he was committed to Camp Barrett,

to be performed at East Mesa.

In December 2016, the Minor admitted violating the controlled substance

condition of his probation. The court ordered him committed to the Youth Offender Unit

(Y.O.U.) program, but stayed the commitment pending a review hearing. In January

2017, the Court vacated the commitment and placed the Minor with his mother.

The events leading to the Minor's latest petition took place in March 2017. He

was drinking alcohol and smoking marijuana at home with other minors, when his mother

told them to leave. He and two others broke into a nearby home. The victim awoke and

chased them. When the Minor was attempting to jump a gate, the victim tackled him.

The Minor dropped an item he had stolen, hit him, and fled. The Minor admitted to

robbery. The probation department recommended placement at Y.O.U. The district

attorney sought placement at DJJ.

The juvenile court held a contested disposition hearing. The Minor's counsel

argued for placement at Y.O.U. The prosecutor argued for DJJ placement, arguing, in

part, that Y.O.U. was "another program at East Mesa where he is not going to thrive" and

"[t]here's no reason to believe he's going to do well" at the facility "he's been essentially

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in and out of . . . . " She also noted he was 18, and "we have to do everything we can for

him before he goes to the adult court." The court stated: "I think the basic premise of the

idea [is] that change is what would create the best opportunity . . . . He has been in East

Mesa for so long. So adjusted to it that moving from hallway to hallway would not create

the incentive or environment that would be truly conducive. That's a pretty

fundamentally sound, rational argument."

The court indicated it was initially aligned with the Minor, but the prosecutor

"made a lot of sense." The court ordered placement at DJJ: "I am going to find that the

least restrictive means of a local commitment, while they would meet the basic needs, I

find that the criminogenic factors, the history presented, the need for drastic measures

and the well of services available in the state facility warrant and support a commitment

to that facility." The court found "DJJ will meet the rehabilitative goals that are

appropriate for moving you in the right direction." The court subsequently noted it was

persuaded that "the [Y.O.U.] is not going to be the appropriate place," explaining: "We

have tried repeatedly to rehabilitate you. None of those rehabilitative goals have been

met . . . ."

The court then stated, "You're 18 years old and they will hold you until 21. So I

have to set a term that meets that." The court set the term:

"I'm designating the maximum term at seven years and yes, I'm
deviating from the maximum. The maximum would be twelve years
adding each and every petition together. The court is exercising it[s]
discretion not [to] set a twelve[-]year term by just taking the two
petitions that have the [Penal Code section] 211 and setting the
maximum term at seven years deviating downward from the
maximum term. The credits, two years, 11 months and 19 days of
credit which actually come to a total number of credits of 1,076 days

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 is applied to the downward deviated term. And that will leave—
strike that, that is applied to the twelve years. So we have the full
seven[-]year term available to DJJ."1

The court addressed the Minor's mother, indicating "[h]e'll be in DJJ until 21."

The court continued, in part: "I'm applying the maximum credits to the maximum term

leaving the total of seven years with the understanding that DJJ requires him to remain in

custody until—his eligible parole date will be at 21." The court's minute order stated

that, in setting the term under Welfare and Institutions Code section 731, subdivision

(b),2 it considered the facts and circumstances.

The Minor timely appealed.

DISCUSSION

A. Placement at DJJ

The Minor contends the juvenile court abused its discretion by committing him to

DJJ. According to the Minor, there is no substantial evidence that there would be

probable benefit to the commitment, or that a less restrictive placement would be

ineffective or inappropriate. We disagree.

"The appellate court reviews a commitment decision for abuse of discretion,

indulging all reasonable inferences to support the juvenile court's decision." (In re

Angela M. (2003) 111 Cal.App.4th 1392, 1396.) "A DJJ commitment is not an abuse of

discretion where the evidence demonstrates a probable benefit to the minor from the

1 The court noted Penal Code section 211 is a Welfare and Institutions Code section
707, subdivision (b), offense. The court also stated the "remaining petitions are served
concurrently," so they "do not add to . . . the seven years."

2 Further statutory references are to the Welfare and Institutions Code, unless noted.

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commitment and less restrictive alternatives would be ineffective or inappropriate." (In

re M.S. (2009) 174 Cal.App.4th 1241, 1250-1251 (M.S.) [substantial evidence supported

court's reason for finding less restrictive alternative would be inadequate or ineffective].)

"Although the DJJ is normally a placement of last resort, there is no absolute rule that a

DJJ commitment cannot be ordered unless less restrictive placements have been

attempted." (Id. at p. 1250.)

We examine the evidence in light of the purposes of the juvenile court law. (In re

Michael R. (1977) 73 Cal.App.3d 327, 333; In re Carlos E. (2005) 127 Cal.App.4th 1529,

1542 (Carlos E.) [purposes of the juvenile system include "the protection of the public as

well as the rehabilitation of the minor"].)

In his opening brief, the Minor concedes "there is some evidence of a probable

benefit to [him] from a DJJ commitment." In his supplemental brief, he argues there was

no substantial evidence of probable benefit because "there was no specific information in

the record regarding the probable benefit . . . from such a commitment," citing Carlos J.,

supra, 22 Cal.App.5th at page 4.

Carlos J. is distinguishable. There, a minor without a substantial record in the

juvenile court system admitted to assault with a firearm and a gang enhancement. (Id. at

pp. 4, 7.) The probation department recommended DJJ, citing the gravity of the offense

and indicating gang intervention services were warranted (but not mentioning specific

programs at DJJ). (Id. at pp. 7-9.) The juvenile court committed the minor to DJJ,

indicating it could not "get over the seriousness of the offense" and noting recent changes

at DJJ allowed it to "provide additional services . . . ." (Id. at p. 9.) The Court of Appeal

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reversed, finding no substantial evidence of probable benefit and explaining "there must

be some specific evidence in the record of the programs at the [DJJ] expected to benefit a

minor." (Id. at p. 10.) Here, the Minor had a long history with the juvenile system and

the juvenile court had already tried various less restrictive placements. The court

properly focused on "crimogenic factors, the history presented, [and] the need for drastic

measures," along with the "well of services available," in concluding DJJ would meet his

rehabilitative goals. We are satisfied there is substantial evidence of probable benefit

from a DJJ placement.3

We now turn to whether there is substantial evidence to support the juvenile

court's finding that the less restrictive alternative (here, Y.O.U.) would be inappropriate.

We conclude there is. Since he was 13 years old, the Minor had engaged in numerous

criminal activities, including multiple felonies. The juvenile court had already tried a

series of less restrictive settings, including CFLC - Ranch Creek, Quality Group Homes,

Inc. Yale House, Center for Positive Changes, Breaking Cycles, and Camp Barrett, as

well as home supervision. The court had even ordered placement at Y.O.U., but vacated

it—after which the Minor drank, smoke marijuana, and committed the robbery that led to

his DJJ placement. This history leaves little doubt that less restrictive alternatives have

been wholly ineffective in rehabilitating the Minor. The need for a significant change

3 (See In re Jonathan T. (2008) 166 Cal.App.4th 474, 486 ["There is no requirement
that the court find exactly how a minor will benefit from being committed to DJJ. The
court is only required to find if it is probable a minor will benefit from being committed,
and the court did so in this case."]; accord, In re Robert D. (1979) 95 Cal.App.3d 767,
773.)
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from prior placements is amplified by his age; at 18, there is little time remaining before

he faces the adult correctional system.

The Minor's arguments are not persuasive. First, he disputes his lack of progress,

citing a 2016 probation department report that stated he told the probation officer he used

marijuana and the officer commended him for "taking responsibility . . . and informing

[him] of his relapse" and noting he did well in juvenile hall after the 2017 robbery arrest.

He also contends he was living at home when that robbery took place, and it was a

difficult situation (given his mother's prior incarceration and other issues). We do not

minimize the changes he has managed to make or the challenges he faces, but this

evidence neither establishes rehabilitation, nor undermines the court's finding that Y.O.U.

would be inappropriate.

Second, the Minor contends the probation department recommended Y.O.U.,

noting it outlined the programs he would participate in, and the court initially was

inclined to place him there. But the court ultimately found Y.O.U. was not appropriate.

And the problem with Y.O.U. was not necessarily the programs available there (although,

as noted ante, the court did find DJJ had a "well of services"), but that the Minor had

repeatedly failed to succeed at other less restrictive placements and change was needed

imminently. The court could reasonably conclude that, notwithstanding the department's

recommendation, Y.O.U. would be inappropriate and ineffective. (See In re Edward C.

(2014) 223 Cal.App.4th 813, 828-829 [rejecting argument that juvenile court should have

followed probation officer's recommendation for release to aunt and outpatient program

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where, among other things, the minor had "made little, if any, progress toward

rehabilitation" and "performed poorly in two local residential treatment programs"].)

The juvenile court did not abuse its discretion in committing the Minor to DJJ.

B. Custody Credits

The Minor contends the court erred by applying his custody credits to the overall

maximum term of 12 years, rather than the seven-year maximum term set by the court.

He also contends the court misunderstood the law, contributing to its alleged

misapplication of the custody credits. We reject these arguments.

Section 726 provides, in pertinent part:

"If the minor is removed from the physical custody of his or her
parent or guardian as the result of an order of wardship . . . , the
order shall specify that the minor may not be held in physical
confinement for a period in excess of the maximum term of
imprisonment which could be imposed upon an adult convicted of
the offense or offenses which brought or continued the minor under
the jurisdiction of the juvenile court." (§ 726, subd. (d)(1).)

Section 731 provides that a ward committed to DJJ cannot be held longer than the

"maximum period of imprisonment" applicable to an adult and then states, in part:

"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." (§ 731, subd. (c).)

When a minor is committed to DJJ, "[s]uccinctly put, the juvenile court must consider the

crime's relevant 'facts and circumstances' in determining whether the minor's maximum

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commitment period should be equal to or less than the maximum confinement term for an

adult." (In re Julian R. (2009) 47 Cal.4th 487, 495.)

"Although the juvenile court's decisions regarding confinement are reviewed for

abuse of discretion [Citation], a minor is entitled to credit against his or her maximum

term of confinement for the time spent in custody before the disposition hearing." (In re:

Emilio C. (2004) 116 Cal.App.4th 1058, 1067 (Emilio C.).) "A juvenile's entitlement to

predisposition custody credit is determined by [section] 726." (Emilio C., at p. 1067; In

re Eric J. (1979) 25 Cal.3d 522, 536 ["[I]n order to carry out the mandate of section 726 .

. . that a juvenile 'not be held in physical confinement for a period in excess of the

maximum term of imprisonment which could be imposed upon an adult convicted' of the

same offenses, appellant must be given precommitment credit"].)

The juvenile court complied with these requirements. The court first determined

the overall maximum term to be 12 years. Pursuant to section 731, the court then

considered the facts and circumstances at issue, and exercised its discretion to set Minor's

maximum term at seven years. The court then applied the Minor's custody credits,

consistent with section 726. (Emilio C., supra, 116 Cal.App.4th at p. 1067; Eric J.,

supra, 25 Cal.3d at p. 536.) The credits were applied to the overall maximum term of 12

years, and the Minor's seven-year maximum term remained lower than the maximum that

could have been imposed upon an adult. (Eric J., at p. 536.) We conclude the court did

not err in applying the credits to the overall maximum term of 12 years.

The Minor's arguments again are unpersuasive. First, he contends the juvenile

court's exercise of discretion was limited to considering the facts and circumstances of

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the case, and, once it set his maximum term at seven years, the custody credits should

have been applied to that term. As discussed ante, custody credit is determined pursuant

to section 726, and the court's application of credits was consistent with that section. The

Minor merely assumes that if a juvenile court sets a lower maximum term under section

731, it is required to apply the custody credits to that lower term. But he cites no

authority for his position.4 For the same reasons, we also reject the Minor's argument

that the juvenile court's approach "deprived" him of his credits.

Second, the Minor contends there is no authority permitting the court "to exercise

its discretion and utilize . . . credits" to reach a lower term. The record does not support

this characterization of the court's approach. It did not use the credits to reach a seven-

year term; it set the term, and then applied the credits such that the term was not reduced

further. This application of credits was not erroneous, as discussed ante.

Third, the Minor argues that once the court chose to run three petitions

concurrently, and use the robbery petitions to set a maximum term of seven years, its

application of custody credits to a 12-year maximum was illogical. We disagree. The

court stated that "[t]he maximum would be twelve years adding each and every petition

together," thus identifying this as the overall maximum term. We interpret the court's

reliance on the two robbery petitions (and its decision to run the other petitions

4 The cases he does cite either confirm propositions that are not in dispute (i.e., that
minors are entitled to credit against their maximum confinement time; where petitions are
aggregated, credits must be too; see e.g., Emilio C., supra, 116 Cal.App.4th at p. 1067; In
re Stephon L. (2010) 181 Cal.App.4th 1227, 1231-1232), or are otherwise inapposite (In
re Richard W. (1979) 91 Cal.App.3d 960, 982 [pre-Eric J. case].)

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concurrently) as its rationale for setting a seven-year maximum term for Minor. But it

never suggested the overall maximum was anything besides 12 years.5

Finally, the Minor argues the trial court misunderstood the law, contributing to its

purported error in applying his credits. Citing DJJ discharge dates under section 1769, he

contends the court mistakenly "believed [he] would spend no more than approximately

three years in custody and would be discharged at the age of 21" (such that it would have

no "practical effect" if it applied the credits to the seven-year term). The court did

comment he would be held until 21, but then stated his parole date will be at 21.6 This is

consistent with the court's decision to set his term for seven years. Meanwhile, the court

never implied, much less stated, that the credits did not matter because he would be

released by then. To the contrary, when applying his credits to the 12-year period, the

court stated, "So we have the full seven[-]year term available to DJJ." There is no

evidence the court misunderstood the law. (See People v. Thomas (2011) 52 Cal.4th 336,

5 The Minor makes additional points in his reply brief. We do not address issues
raised on reply (People v. Clayburg (2012) 211 Cal.App.4th 86, 93), and they lack merit
regardless. First, he states the court "failed to . . . properly aggregate his credits," arguing
that if it aggregated his petitions to reach a 12-year term and used its discretion to reduce
it, he was "entitled to the full 1,076 days of precommitment credit" to the reduced term.
But he does not identify any days omitted by the court. Rather, he just disputes the court
could apply those days to the 12-year term. It could. Second, he contends the purpose of
credits is to decrease the amount of time he would have to serve and the failure to award
them is error, citing People v. Kunath (2012) 203 Cal.App.4th 906. He provides no
authority for this supposed purpose of custody credits in the juvenile context, and Eric J.
suggests otherwise. (Eric J., supra, 25 Cal.3d at p. 536.) Kunath is distinguishable. (Id.
at p. 911 [court failed to award dual presentence credits to adult offender].)

6 The court also recognized robbery was a section 707, subdivision (b) offense
(subject to discharge after age 21 under § 1769). (§ 1769, subd. (c) [for offenses under §
707, subd. (b), on or after July 1, 2012, ward is discharged after 2 years or age 23,
whichever is later, unless order for further detention is made under Art. 6].)
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361 ["In the absence of evidence to the contrary, we presume that the court 'knows and

applies the correct statutory and case law.' "].)

The Minor does not establish the juvenile court erred in applying his custody

credits.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

NARES, J.

IRION, J.

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