Filed 7/2/21 In re J.T. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re J.T., a Person Coming B305995
Under the Juvenile Court (Los Angeles County
Law. Super. Ct. No. FJ54127)
THE PEOPLE,
Plaintiff and
Respondent,
v.
J.T.,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Robert Leventer, Judge Pro Tempore. Affirmed
with directions.
Steven A. Torres, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, William H. Shin and Roberta L.
Davis, Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
After a series of Welfare and Institutions Code section 602
petitions detailing increasingly violent robberies over three years
and corresponding escalating juvenile court discipline, the Los
Angeles County Probation Department filed a notice under
section 777 that J.T. had violated the conditions of his probation.1
At the conclusion of the hearing on the section 777 notice, the
juvenile court ordered J.T. committed to the California
Department of Corrections and Rehabilitation Division of
Juvenile Justice (DJJ) for a term not to exceed five years.
J.T. contends on appeal that the juvenile court abused its
discretion when it ordered him committed to DJJ because less
restrictive alternatives exist to meet the Welfare and Institution
Code’s statutory rehabilitative objectives. He also argues that he
should have been awarded two additional days of predisposition
custody credit and that a change in the law after the disposition
hearing warrants a remand for the juvenile court to reconsider
J.T.’s term of confinement.
We disagree with J.T. regarding his primary contention; we
conclude that the juvenile court did not abuse its discretion when
it committed J.T. to DJJ. But we will award J.T. the additional
predisposition custody credit he requests and modify his sentence
to conform with current law.
1 Further statutory references are to the Welfare and
Institutions Code.
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BACKGROUND
Sixteen-year-old J.T.’s first interaction with the juvenile
court was based on two section 602 petitions filed when J.T. was
eleven years old. On September 14, 2016, J.T. and others
confronted a high school student as he exited a school bus, hit the
victim in the face, and held him down and searched his pockets.
The victim in that incident was treated at a hospital for injuries
he sustained during the incident. On October 3, 2016, J.T.
followed another victim, tried to take her cell phone from her
pocket, and slapped the victim in the face. Under the terms of an
agreement with the People, J.T. admitted one count of second
degree robbery associated with the September incident and a
count of battery with the infliction of serious bodily injury
associated with the October incident. The juvenile court
dismissed a count of assault by means of force likely to produce
great bodily injury associated with the September incident. At
an adjudication and disposition hearing on October 19, 2016, the
juvenile court placed J.T. home on probation.
J.T. was again detained on November 4, 2016 for two
separate incidents that also happened in September and October
2016. The petition alleged three counts of second degree robbery
against three victims. Two of the robbery counts were associated
with an incident on September 12, 2016 and the third arose from
an incident on October 26, 2016. It also alleged one count,
associated with the September 12, 2016 incident, of assault by
means of force likely to produce great bodily injury. Under the
terms of an agreement, the juvenile court added a fifth count to
the petition for battery causing serious bodily injury, dismissed
the other four counts, and sustained the petition. At an
adjudication and disposition hearing on January 10, 2017, the
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juvenile court placed J.T. in a placement outside of his home.
J.T. ran away from the placement facility and a warrant was
issued for his arrest.
On December 12, 2017, J.T. assaulted and robbed another
victim. J.T. and three others punched and kicked the victim until
he fell to the ground and stole the victim’s cell phone. The
petition alleged one count of second degree robbery, one count of
assault by means of force likely to produce great bodily injury,
and one count of resisting or obstructing a public officer. At an
adjudication and disposition hearing on May 3, 2018, the juvenile
court placed J.T. home on probation with his grandmother in
Alabama. The record indicates that “unfortunately, [J.T.]
continued his violent and delinquent behavior and was ultimately
transported back to California on a violation.” The record does
not indicate what the violation was.
In July 2019, J.T. was released home on probation to his
mother, whom the report notes “had not had custody of her son in
nearly three years.” The probation officer referred the family to
family functional therapy, but J.T. failed to meet with the
therapist. He was arrested again on August 10, 2019—before the
rescheduled date to meet with the therapist. J.T.’s August 10,
2019 arrest was based on an incident in which J.T. and two
others took a baseball bat from a victim and hit him with it
before stealing his cell phone and hitting him two more times
with the baseball bat.
On October 28, 2019, J.T. brandished a handgun, and while
he pointed the handgun at the victim, demanded the victim’s cell
phone. J.T. demanded that the victim unlock the phone and,
according to a probation report, “wipe it clean to avoid any
tracing of the device.” J.T. also stole the victim’s shoes. The
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October 30, 2019 petition charged J.T. with gang-affiliated second
degree robbery and possession of a firearm by a minor.
While he was detained at juvenile hall pending
adjudication of the October 2019 petition, on November 12, 2019
J.T. threw a 50-gallon trash can at a water fountain, which
caused the water fountain to detach from the wall. Then on
November 16, 2019, J.T. assaulted one of the officers at juvenile
hall. These incidents resulted in the filing of a section 602
petition—eventually dismissed—alleging felony vandalism and
battery of a custodial officer.
At an adjudication hearing for the October 2019 petition on
January 28, 2020, the juvenile court sustained the petition as to
the second degree robbery count and dismissed the firearm
possession count and gang enhancement. The juvenile court
ordered J.T. again placed at camp.
J.T. entered the camp program on March 3, 2020. On
March 9, according to a probation department declaration, he
“incited and participated in a gang-related major disturbance.
The incident involved [numerous] youth and led to a staff and
youth being injured and taken to the hospital.” On March 22,
2020, he threatened to kill the camp nurse.
The probation department filed a section 777 notice of
probation violation on March 25, 2020. It contained the following
statement: “The probation records indicate[ that J.T.] had a total
of 151 serious incident reports and 49 gang[-]related fights prior
to his arrival at [his current camp placement]. This, along with
his current incident reports at [his current camp placement], is a
clear indication that he is not responsive to the available services
provided to him by the County of Los Angeles. [¶] [J.T.’s current
camp placement] residential treatment program is the highest
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level of care, structure, and services available to youth at the
county level.” The probation report informed the juvenile court
that the placement “put[ ] him, his peers, and staff in danger of
injury.” The report concluded that J.T. “is in need of a higher
level of services where he can be safely housed in his own room,
be housed for a longer period of time, so that his behavior can be
[stabilized] and commitment to participating in treatment can be
gained, and [where] he will be provided with the extensive post-
release services that can help him successfully transition[ ] back
into the community.”
The juvenile court held the disposition hearing for the
probation violation on May 6, 2020. J.T. requested either
suitable placement or camp community placement. The juvenile
court, however, explained: “I don’t know what options I have,
other than [DJJ], because there [have] been multiple petitions.
There [have] been multiple violations. There [have] been
multiple warrants. We have tried two suitable placements, two
camp commitments. And as of today, there is misbehavior. [¶]
Throughout his stay in juvenile hall and camp, there continues to
be gang-related activity which would indicate that sending him
back to camp is not really an option, certainly, not one that is
going to help him. And we have looked at the possibility of an . . .
out-of-the-area placement. And they have not been able to accept
him into their program.” The juvenile court heard further
argument, and explained again: “[J.T.] was told if he was given a
deal where he would go to camp for the underlying offense
instead of [DJJ], this would be his last opportunity. That is after
giving him many, many chances. He was told. Well, he was told
that [DJJ] was going to be the alternative, if camp did not work
out. But that was an offense where he assaulted someone with a
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baseball bat after asking them what gang they were from.” The
court explained at length the considerations, J.T.’s escalating
behavior and attempted resolutions, and detailed considerations
of each potential alternative placement and the reasons J.T. had
already failed in those placements. Ultimately, the juvenile court
concluded on the record: “I think that there is no less restrictive
environment available, except [DJJ]. I don’t think one-on-one
placement or support would necessarily be helpful. And it would
certainly delay his ultimate[ ] return to the community.”
Over J.T.’s objection and directly in response to argument
from J.T. and his mother, the juvenile court explained that “I
don’t believe I have a meaningful alternative. And I have to be
concerned about public safety. And when he is in the community,
he is robbing people.”
Based on the October 2019 petition, the juvenile court
placed J.T. with DJJ, set the maximum term of confinement at
five years, and awarded 190 days of credit for time spent in
custody on the petition.
J.T. filed a timely notice of appeal.
DISCUSSION
A. Placement with DJJ
J.T. contends that the juvenile court abused its discretion
when it committed him to DJJ. J.T. argues that the juvenile
court was required to “consider less restrictive alternatives” to
DJJ and to find “on the record, that [DJJ] will provide a probable
benefit to appellant that cannot be provided in other settings.”
J.T. contends that these things were “not adequately done in this
case.”
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“We review the juvenile court’s commitment decision for
abuse of discretion, indulging all reasonable inferences to support
its decision.” (In re N.C. (2019) 39 Cal.App.5th 81, 85 (N.C.).)
“In determining the judgment and order to be made in any
case in which the minor is found to be” a ward of the juvenile
court, “the court shall consider, in addition to other relevant and
material evidence, (1) the age of the minor, (2) the circumstances
and gravity of the offense committed by the minor, and (3) the
minor’s previous delinquent history.” (§ 725.5.) “The court may
place the minor on probation, with or without declaring the minor
a ward of the court, or it may declare the minor a ward and order
appropriate treatment and placement. [Citations.] Placement
options include the home of a relative or extended family
member; a suitable licensed community care facility or foster
home; juvenile hall; a ranch, camp or forestry camp; and, the
most restrictive setting,” DJJ. (In re Greg F. (2012) 55 Cal.4th
393, 404; see § 202.)
“Because rehabilitation is one of the primary objectives of
juvenile court law, our 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 [DJJ].” ’ ” (N.C.,
supra, 39 Cal.App.5th at p. 85.) “At the same time, another
primary objective of juvenile court law is to protect public safety.”
(Id. at pp. 85-86; § 202, subd. (d).)
J.T.’s briefing here does not contend that the juvenile court
considered improper factors or failed to consider factors it should
have. J.T. argues that the juvenile court did not adequately
consider less restrictive alternatives and did not adequately state
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on the record what benefit DJJ would afford J.T. But J.T. makes
no assertions about what the juvenile court could have or should
have done differently.
Our review of the record indicates that the juvenile court
considered the factors it was required to consider. Over the
course of more than three years, beginning when J.T. was 11
years old, the juvenile court heard evidence of robbery after
robbery that followed a pattern. The record establishes an
escalation in J.T.’s gang activity, and robberies and assaults that
reflect an increasing degree of sophistication and violence. The
juvenile court initially placed J.T. home on probation with his
mother, and then moved through a series of attempted
rehabilitative resolutions, including multiple camp placements, a
placement with a relative in another state, a placement in a
treatment facility, and multiple stays at juvenile hall. The record
indicates that at every turn J.T. resisted treatment, refused to
cooperate in his own rehabilitation, attempted to escape from
placements, became increasingly violent, and was eventually
rejected from placements because he proved to be a danger to
those around him and those charged with his care and
rehabilitation. J.T. cycled through and actively failed every
placement that Los Angeles County could offer him. The juvenile
court’s comments at the disposition hearing on May 6, 2020
establish that the juvenile court both considered and attempted
every possible alternative before arriving at what it viewed as an
inescapable conclusion to refer J.T. to DJJ. When it arrived at
that conclusion, the juvenile court explained why any less
restrictive placement—the variety of placements it had already
attempted that J.T. had rejected—were no longer possible, and
what DJJ could offer J.T. that would benefit him in ways that
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less restrictive alternatives had failed. The juvenile court viewed
and stated on the record specific programs provided by DJJ—
including vocational training and therapeutic services not
available at the county level—that it believed would benefit J.T.
The court stated that it would “attach and lodge into the file a
packet of services that [DJJ] offers that [the court] think[s] could
be helpful.” The juvenile court also expressly weighed public
safety in its analysis and concluded—expressly and supported by
record evidence—that it no longer had any less restrictive
alternative for J.T.’s rehabilitation.
We find no abuse of discretion.
B. Predisposition Custody Credits
J.T. contends, and the People agree, that he is entitled to
two additional days of predisposition custody credits. We have
reviewed the parties’ credit calculations, and agree that J.T. is
entitled to 192 days of predisposition custody credits. We will
order the trial court to correct the disposition order.
C. Term of Confinement
The juvenile court committed J.T. to DJJ for a term of five
years based on the maximum term of confinement for second
degree robbery. J.T. contends that a 2020 amendment to section
731, subdivision (c) changed the maximum time J.T. could be
committed to DJJ to three years. The People agree with J.T.’s
contention.
Senate Bill No. 823 added the word “middle” to section 731,
subdivision (c) effective September 30, 2020 to prohibit
commission of “a ward to the [DJJ] for a period that exceeds the
middle term of imprisonment that could be imposed upon an
adult convicted of the same offense.” (§ 731, subd. (c); Stats.
2020, ch. 337, § 28.) The middle term of imprisonment for second
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degree robbery is three years. (Pen. Code, § 213.) Based on the
juvenile court’s imposition of the maximum term of confinement,
we will not remand the matter for another disposition hearing.
(See People v. Winn (2020) 44 Cal.App.5th 859, 873; People v.
Buycks (2018) 5 Cal.5th 857, 896, fn. 15.) We will direct the
juvenile court to issue a new disposition order reflecting a
maximum term of confinement of three years.
DISPOSITION
The juvenile court is ordered to issue a new disposition
order reflecting predisposition custody credits of 192 days and a
three-year maximum term of confinement with DJJ. The
juvenile court’s order is affirmed in all other respects.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
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