In re M.H. CA5

Filed 10/9/20 In re M.H. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

In re M.H., a Person Coming Under the Juvenile
Court Law.

THE PEOPLE, F080007

Plaintiff and Respondent, (Super. Ct. No. 19CEJ600239-1)

v.
OPINION
M.H.,

Defendant and Appellant.

THE COURT*
APPEAL from an order of the Superior Court of Fresno County. Kimberly J.
Nystrom-Geist, Judge.
Candice L. Christensen, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Ivan
P. Marrs, Deputy Attorneys General, for Plaintiff and Respondent.

* Before Poochigian, Acting P.J., Meehan, J. and DeSantos, J.
 -ooOoo-
Minor M.H. contends on appeal the juvenile court abused its discretion when it
committed him to the Department of Juvenile Justice (DJJ), because the record lacks
substantial evidence of the inappropriateness or ineffectiveness of less restrictive
alternatives. We affirm.
BACKGROUND
On May 2, 2019, at approximately 5:56 p.m., Tulare County sheriff’s deputies
were dispatched to a market in the city of Traver for a report of a robbery in progress.1
En route, the deputies were informed there was a possible gunshot victim and the suspect
was being detained by individuals on the scene. Upon arrival, they saw minor pinned to
the ground by five or six individuals. A .45-caliber semiautomatic pistol was on the
ground approximately four feet away from minor, with a live round in the magazine and a
spent shell stuck in the ejection port of the weapon, rendering it inoperable. An
individual at the scene reported that he and five or six coworkers had been outside the
market talking and exchanging money, as they recently had been paid and some owed
money to others for rides to work and such. Minor approached them wearing a ski mask
and armed with a gun, and demanded their wallets and money. Minor grabbed some
money one of the victims had dropped. L.C. walked up and grabbed minor’s wrist and a
struggle ensued. L.C. took minor to the ground, but a shot was fired during the struggle
and L.C. sustained a bullet wound to his thigh with an exit wound on his calf. Other
victims came to L.C.’s aid and disarmed minor.
On May 6, 2019, a juvenile wardship petition was filed in Tulare County Juvenile
Court pursuant to Welfare and Institutions Code section 602, alleging 17-year-old minor
had committed 14 felony counts involving seven different victims of second degree

1 These facts are taken from a discussion of the police report contained within the
probation report.

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robbery (Pen. Code, § 211)2 and assault with a firearm (§ 245, subd. (a)(2)), including
special allegations for personal use of a firearm (§ 12022.53, subd. (b)), and inflicting
great bodily injury on L.C. (§ 12022.7, subd. (a)).
On May 22, 2019, count 5 was amended to allege a violation of section 211 as to
five of the seven victims, with a special allegation for personal use of a firearm. On the
same date, minor waived his rights and admitted count 5, as amended. He also admitted
count 1, a violation of section 211 as to L.C., with special allegations for personal use of
a firearm and inflicting great bodily injury. He additionally admitted count 2, a violation
of section 211 as to a seventh victim, with a special allegation for personal use of a
firearm. The remaining counts were dismissed on the motion of the prosecution. The
matter was transferred to the Fresno County Juvenile Court for disposition. The
disposition hearing was continued several times at the request of minor’s counsel.
In the intervening period, the probation officer filed a probation report noting that
minor had serious academic and attendance issues, self-reported being highly addicted to
cocaine and alcohol, admitted to gang membership and willingness to do anything for the
gang, had significant gang tattoos, and had disciplinary problems at home. Minor
expressed remorse for his actions and reported he robbed the victims to support his
cocaine habit and because he owed others money. The probation officer recommended
commitment to the DJJ, stating:

“In making an appropriate recommendation for the minor, your officer
considered the instant offense and the minor’s age. Your officer feels the
minor needs to be placed in a structured environment to ensure he receives
services. Your officer considered a commitment to the New Horizon’s
Program but the minor does not meet the criteria because of the use of a
firearm. A commitment to the Substance Abuse Unit (SAU) program was
also deliberated but your officer believes based on the severity of the
offense and the relatively short length of the SAU program, the minor’s
needs would not be adequately addressed. In addition, your officer believes

2 Statutory references are to the Penal Code unless otherwise noted.

3.
 the minor poses such a significant threat to public safety, that any local
program offered would not be sufficient to hold the minor accountable or
meet his rehabilitative needs .…”
Defense counsel filed a statement in mitigation, requesting commitment to the
New Horizons program or the SAU in light of minor’s lack of prior formal record,
acknowledgment of wrongdoing, and willingness to comply with court orders and local
services. The prosecution’s reply acknowledged these programs offered rehabilitative
programming, but argued minor would be better served by a DJJ commitment given his
age, the gravity of his offenses, and his history of delinquency despite a lack of prior
formal proceedings.
A disposition hearing was held on September 16, 2019. The probation officer
noted that, although minor was before the court on his first petition, the petition involved
serious offenses that were committed to support minor’s cocaine habit and because he
owed money to others. Additionally, minor had a significant number of gang tattoos and
expressed he would do anything for the gang. The probation officer opined that a
commitment to the DJJ would meet minor’s rehabilitative needs, whereas the SAU
program would be of insufficient duration. The probation officer additionally opined that
minor did not meet the criteria for New Horizons because of his use of a firearm. The
People argued that minor required “significant rehabilitation,” and that the New Horizons
program did not provide sufficient programming of sufficient duration to meet minor’s
needs.3 Minor’s counsel argued that a local commitment would be sufficient to meet
minor’s rehabilitative needs.
The court opined that neither SAU nor New Horizons, individually, met minor’s
level of need. However, the court queried whether minor could be committed to the SAU
and New Horizons programs consecutively, consisting of an 18 month commitment

3 The People opined that the court could commit minor to New Horizons, despite
the probation officer’s belief that minor did not qualify for the program.

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which, the court acknowledged, “is not something that we normally do.” The court
acknowledged “probation would not recommend [minor] for New Horizons,” but the
court stated its belief that it had the authority to commit minor to that program. The court
continued, “[I]t does appear to the Court that the only commitment that would be in
[minor’s] best interest would be the Department of Juvenile Justice, as that is the only
place he can get comprehensive intervention.” Nonetheless, the court asked the parties
for their view of the potential for consecutive local commitments.
The probation officer stated that consecutive commitments might not be possible
because minor, who was 17 years and 6 months old at the time of the disposition hearing,
would turn 18 during the first of either commitment, and each program required that the
person be under the age of 18 at the time of commitment. The probation officer
reiterated her view that a DJJ commitment was in minor’s best interest. The People
agreed that minor required the more intensive services available through the DJJ.
The court clarified, “So the problem with the two consecutive programs for
[minor] at the age he is, if he was committed to the shorter program, substance abuse,
first, he would become 18 while in the Substance Abuse Unit and then become ineligible
for the New Horizons Program?” The probation officer responded affirmatively.
Minor’s counsel stated, “Well, if the Court today commits the minor consecutively to the
365 New Horizons followed by the 180 SAU, then he is 18 at the time of the
commitment.” Minor’s counsel stated he was “in agreement with the Court’s indicated
sentence with the 18-month commit.” The court clarified that, although it had been
considering consecutive local commitments, the court’s query did not constitute an
indicated disposition.
The court ruled as follows:

“The Court agrees with the People and probation in terms of sophistication.
What [minor] did was very sophisticated. At 17 he approached a group of
adult men, masked, with a loaded firearm and he shot one of them. He
caused significant bodily injury. I recognize that he immediately admitted

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and that he had expressed remorse, but that does not undo what brought
[minor] to this position. I have considered the possibilities of local
programs. And while defense is correct that a commitment to the
Department of Juvenile Justice should come when a minor has exhausted
the local systems and is considered the final treatment source available, for
[minor] it is the only treatment source available. The two programs
together, a local commit of 18 months, actually would not work because
youth are under the age of 18 when they begin each of the programs.
[Minor’s] date of birth is March 1st. On March 1st he will be turning 18.
He does not have⸻he has needs that we cannot meet locally, and his only
opportunity for rehabilitation is with the Department of Juvenile Justice.

“I have considered his age, the gravity of the circumstances that brought
him before the juvenile court. The prior efforts of rehabilitation were
informal and this is his first formal event before the juvenile court. This
was transferred in from Tulare County. This is the first set of formal
charges that [minor] has faced, and yet at the age that he is, teetering on
adulthood, the circumstances he brings to the Court, the level of need he
brings to the Court is so great that we have, in fact, exhausted local options.
There are no local options that meet his level of need and that are
comprehensive enough to assist [minor] as he goes into adulthood.

“The Court finds probation’s recommendation is appropriate and the Court
makes the following findings and orders⸻”
Following a disruption in the courtroom, the court continued as follows:

“I do note on page 9 of probation’s report that probation considered
carefully the local options, and came to the same conclusion that the Court
has, which is that the New Horizons Program is not the appropriate fit; that
the Substance Abuse Unit is not the appropriate fit for [minor’s] needs.
And I note the extensive discussion on [minor’s] gang involvement and his
entrenchment indicated as probation set forth by [minor’s] own admission,
his multiple gang-related tattoos, saying that he was, in quotes, ‘blessed’
into the gang because he, in quotes, ‘put in work’ and he was willing to do
anything. According to probation, [minor] indicated he used to be, in
quotes, ‘a crash dummy,’ and he realized that nothing the gang did for him
was free and it always came with strings attached.

“Probation also noted that [minor] seems willing to change. And I think
that that is demonstrated in the conduct that his attorney has described in
going to school here while he’s in custody, in expressing remorse. And
those attitudes and perspectives will assist [minor] in getting everything he
can with his treatment.

6.
 “At this time the Court finds that [minor’s] welfare requires that custody be
taken from the parent. The Court and the probation officer have considered
all local and less restrictive programs and forms of custody. And the Court
is fully satisfied that these local programs are inappropriate dispositions and
are inadequate. The Court also specifically finds that [minor] is likely to
benefit from the various programs provided by the California Department
of Corrections and Rehabilitation, Division of Juvenile Justice. The Court
finds that this commitment is in [minor’s] best interest and it is⸻and is his
only viable option for rehabilitation.”
The court noted that, the statutory maximum period of confinement was 40 years,
but exercised its discretion and set the maximum period of confinement at 15 years.
DISCUSSION
Minor contends the court should not have relied on the probation officer’s
representation that minor could not be committed consecutively to the SAU and New
Horizons programs. Absent such representations, minor contends the evidence was
insufficient to demonstrate less restrictive alternatives would be ineffective or
inappropriate and, accordingly, the court abused its discretion in committing minor to the
DJJ.
A DJJ commitment is not an abuse of discretion where the record demonstrates
“both a probable benefit to the minor … and the inappropriateness or ineffectiveness of
less restrictive alternatives.” (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) We
will affirm if the record contains substantial evidence to support the juvenile court’s
findings, indulging all reasonable inferences in support of its decision. (In re Calvin S.
(2016) 5 Cal.App.5th 522, 527–528.) “ ‘A [juvenile] court abuses its discretion when the
factual findings critical to its decision find no support in the evidence.’ ” (In re Khalid B.
(2015) 233 Cal.App.4th 1285, 1288.)
“[T]he court shall consider, in addition to other relevant and material evidence,
(1) the age of the minor, (2) the circumstances and gravity of the offense committed by
the minor, and (3) the minor’s previous delinquent history.” (Welf. & Inst. Code,
§ 725.5.) The court is required to “consider ‘the broadest range of information’ in

7.
determining how best to rehabilitate a minor and afford him adequate care.” (In re
Robert H. (2002) 96 Cal.App.4th 1317, 1329.) “ ‘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.’ ” (In re A.R. (2018) 24
Cal.App.5th 1076, 1080–1081; accord, In re Ricky H. (1981) 30 Cal.3d 176, 183 [“there
is no absolute rule that a [DJJ] commitment should never be ordered unless less
restrictive placements have been attempted”]; In re Carlos J. (2018) 22 Cal.App.5th 1, 6
[“A juvenile court may properly consider ‘a restrictive commitment as a means of
protecting the public safety.’ ”].)
“A juvenile court must determine if the record supports a finding that it is
probable the minor will benefit from being committed to DJJ.” (In re Jonathan T. (2008)
166 Cal.App.4th 474, 486.) The juvenile court is not required to expressly state on the
record its reasons for rejecting less restrictive placements, but the record must contain
some evidence that the court appropriately considered and rejected reasonable alternative
placements. (In re Nicole H. (2016) 244 Cal.App.4th 1150, 1159.) Lastly, we note that
the primary objectives of juvenile court law include “the protection of the public as well
as the rehabilitation of the minor.” (In re Carlos E. (2005) 127 Cal.App.4th 1529, 1542.)
Here, the juvenile court expressly stated on the record and at length its reasons for
selecting the DJJ and rejecting less restrictive placements. The court noted that minor’s
offenses involved a level of criminal sophistication that resulted in significant bodily
injury. The court additionally noted minor’s extensive gang involvement. Although
minor did not have prior “formal charges,” the court noted that he was “teetering on
adulthood” and had significant rehabilitative needs. The court found these needs could
not be met by any individual local program. Ample evidence supported the juvenile
court’s finding that placements less restrictive than the DJJ were not appropriate to
provide for minor’s rehabilitation and the public’s safety.

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 Nonetheless, minor argues the juvenile court wrongly rejected the possibility of
consecutive commitments to SAU and New Horizons. When the court asked for the
parties’ views regarding a potential consecutive commitment to both SAU and New
Horizons, the probation officer opined that consecutive commitments were insufficient to
meet minor’s needs, and indeed were not possible due to minor’s age. Minor now
suggests the court should not have relied on the probation officer’s representation in this
regard, because the probation officer also incorrectly opined minor was ineligible for
New Horizons based on his use of a firearm. Minor contends the probation officer’s
statement regarding consecutive commitments was therefore “weak” and “did not inspire
confidence.” Minor also contends the local programs “would honor the court’s order
regardless of when the minor turned 18.”
The court heard opposing views regarding minor’s eligibility for consecutive
commitments to SAU and New Horizons from the probation officer and minor’s counsel.
The court ultimately concluded minor had needs that could not be met by consecutive
local programs because “youth are under the age of 18 when they begin each of the
programs.” Minor does not dispute a consecutive commitment to SAU and New
Horizons would have placed minor outside the age range served by such programs. In
any event, however, the court found there were no local options comprehensive enough
to meet minor’s level of need and assist him “as he goes into adulthood.” Substantial
evidence supports this finding and demonstrates the inappropriateness of less restrictive
alternatives.
Indulging all reasonable inferences supporting the court’s decision, the record
demonstrates that the DJJ placement would provide a probable benefit to minor and that
less restrictive alternatives would be either inappropriate or ineffective. (See In re
Angela M., supra, 111 Cal.App.4th at p. 1396.) The juvenile court did not abuse its
discretion.

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 DISPOSITION
The juvenile court’s commitment order is affirmed.

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