Filed 8/17/15 In re Marcus O. 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

In re MARCUS O., a Person Coming Under the
Juvenile Court Law.

THE PEOPLE,                                                                                F070022

         Plaintiff and Respondent,                                               (Super. Ct. No. 513480)

                   v.
                                                                                         OPINION
MARCUS O.,

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Stanislaus County. Valli
Israels, Judge.
         Candice L. Christensen, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Gregory
B. Wagner, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

         *Before     Hill, P.J., Kane, J., and Smith, J.
       Marcus O., a minor, was found by the juvenile court to have fired a gun at a
dwelling. While out on probation after serving time in juvenile hall for this offense,
Marcus went to the home of another minor and again fired a gun. After a contested
hearing, the juvenile court found that Marcus violated the terms of his probation and
committed him to the Department of Juvenile Justice (DJJ). Marcus now argues that the
juvenile court abused its discretion by refusing his request for commitment to a less-
restrictive setting. We affirm.
                        FACTS AND PROCEDURAL HISTORY
       On November 26, 2013, the district attorney filed a juvenile wardship petition
pursuant to Welfare and Institutions Code section 602, subdivision (a), alleging that
Marcus committed three offenses on November 23, 2013, when he was 16 years old:
(1) discharging a firearm at an inhabited dwelling (Pen. Code,1 § 246); (2) possessing a
concealable weapon without written permission of his parent or guardian (§ 29610); and
(3) resisting arrest (§ 148, subd. (a)(1)). At the pretrial hearing, Marcus pleaded no
contest to count 1. Counts 2 and 3 were dismissed.
       The probation officer prepared a dispositional social study. The report stated that
in the early morning of November 23, 2013, residents of a house in Modesto called the
police to report that a shot had been fired through their window from a green car.
Officers found a car matching the description given and pulled it over. Marcus emerged
from the front passenger door and fled, dropping a nine-millimeter handgun as he ran. A
nine-millimeter shell casing was found in the street in front of the house. There were
bullet holes in a window and a back wall of the house. A pregnant woman had been
sleeping near the window. Rudy Luna, a resident of the house, was standing on the front
porch when the green car first passed the house. The shot was fired when the car



       1Subsequent   statutory references are to the Penal Code unless otherwise noted.


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returned after Luna went back inside. Luna said he was once an active Norteño gang
member but was no longer involved in gang activity.
        Marcus told the probation officer he was an associate of a Norteño street gang. He
admitted the shooting occurred and he was present. “[I]t looked like [one of the
residents] flipped me off, but I don’t know.… That’s when the shooting happened,” he
said.
        Marcus denied he had a substance-abuse problem but claimed he smoked
marijuana daily and drank 30 beers and one or two bottles of liquor each weekend.
Marcus’s father was incarcerated. Marcus had twice run away from home, most recently
because he was upset about his father’s incarceration. Marcus went to his grandmother’s
house when he ran away, according to his mother.
        Before his detention, Marcus lived with his mother, who had a conviction for
driving with an excessive blood alcohol level. Marcus’s mother told the probation officer
she “believes the minor is responsible within the community and does not require
supervision.” She did not believe Marcus associated with a gang. She had no knowledge
of alcohol use by Marcus and had never seen him under the influence of drugs, but she
suspected he had “experimented” with drugs. She thought he got average grades.
        The probation officer believed Marcus did not appear remorseful. The officer
stated that Marcus failed to acknowledge the seriousness of the crime, expressed no
concern for the safety of the victims, and also appeared not to respect the law, his parents,
or the property of others. The probation officer recommended confinement in juvenile
hall, however—not DJJ—because of Marcus’s lack of a prior criminal history.
        At the disposition hearing, the probation officer recommended that the period of
juvenile hall confinement be 120 days. The court, however, believed this was insufficient
in light of the dangerousness of the offense and imposed a term of 240 days. The court
stated that it considered a commitment to DJJ, but decided against it. After being
released, Marcus was to be on probation in the custody of his mother. The terms of

                                             3.
probation included a requirement to obey the law and a prohibition on possessing
firearms.
       Marcus was released from juvenile hall on April 13, 2014. On May 27, 2014, he
was arrested for violating the terms of his probation. The detention report prepared by
the probation officer stated that on May 22, 2014, the mother of a former friend of
Marcus reported that Marcus and two other males appeared at her apartment complex.
Marcus and the former friend argued, and then the former friend ran toward his
apartment. Marcus and his two associates got in a car. Marcus pointed a handgun out of
the window and fired it. No one was hit. The car sped away.
       Marcus was charged with violating probation by failing to obey the law and by
possessing a firearm. Marcus denied the charges and a contested probation violation
hearing was held.
       At the hearing, the prosecutor explained that he was proceeding by way of a
probation violation, not an allegation of a new criminal offense, because of the nature of
the evidence. He believed the testimony would show no more than a negligent discharge
of a firearm.
       Yvette D. testified that she was standing in the parking lot of her apartment
complex in Ceres around 7:00 p.m. on May 22, 2014, when she saw Marcus and another
person approach her son. She was well acquainted with Marcus because he and her son
were once involved in the same gang, and Marcus came to her house often for a number
of years. The boys began yelling, and Yvette’s daughter shouted for her. Yvette ran to
see what was happening. Marcus and his companion ran to a car and got in. A third
person was in the driver’s seat. Marcus, in the rear passenger seat, pointed a gun out the
window and fired once. The gun was pointed toward the complex’s pool when Marcus
fired. Yvette called the police, who found one .22-caliber shell casing on the ground.
       Marcus’s mother, Jessica O., testified that on May 22, 2014, she returned from
work around 7:00 p.m. and picked up Marcus at a friend’s house in Ceres to take him out

                                             4.
for dinner. At 7:08 p.m., Jessica sent a text message to the friend to say she had arrived
and Marcus should come out. Marcus and Jessica drove to a restaurant in Modesto, ate
dinner, and went home.
       Officer Derek Perry of the Ceres Police Department testified that the report of the
shooting was called in at 7:06 p.m. on May 22, 2014. Jessica gave him a receipt from the
restaurant to which she had taken Marcus. The time stamp on the receipt was 7:14 p.m.
Perry spoke to the owner of the restaurant, who said the cash register time stamp was
behind by about an hour and five minutes. Perry also watched surveillance video from
the restaurant. Marcus and Jessica first appeared in the video about 20 to 30 minutes
after the shooting was reported. The officer said that, without traffic congestion, the
drive from Ceres to the restaurant in Modesto would take around seven minutes.
       After saying the case was “a very close call,” the juvenile court found by a
preponderance of the evidence that Marcus violated his probation. It concluded that
Marcus failed to obey the law and was in possession of a firearm.
       The probation officer prepared a second dispositional social study and filed it on
June 27, 2014. Marcus told the probation officer he was not present at the shooting on
May 22, 2014. He admitted he was still a Norteño gang associate. He said he smoked
marijuana two or three times per day and drank beer on weekends. Marcus’s mother
again denied to the probation officer that she was aware of any drug or alcohol use by
Marcus and still did not believe he was affiliated with a gang.
       The social study reported that on November 24, 2013—the day after the first
shooting—Marcus got in a fight with another minor at juvenile hall. Marcus was the
primary aggressor. The other party to the fight was Enrique D., the son of Yvette D.
During the incident, other minors yelled “snitch” and “drop out” at Enrique.
       The study also reported that on January 22, 2014, a corrections officer saw Marcus
spitting on the door of two other minors’ room. The probation officer believed this



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incident, like the in-custody fight with Enrique, illustrated Marcus’s “issues in regards to
minors not seen [to be] in good standing with the [Norteño] criminal street gang.”
       The study concluded that Marcus should be committed to DJJ. The probation
officer believed Marcus “intended to seriously injure or kill the intended victims of both”
shootings. He pointed out that Marcus had been out of custody only 41 days when he
committed the second shooting. He opined that Marcus’s pattern of violence would
continue without “lengthy and intensive treatment,” including gang-intervention
treatment. The probation officer wrote that DJJ had treatment programs of this kind that
were not available in juvenile hall or group homes.
       According to an incident report prepared after the dispositional social study was
filed, Marcus got in another fight at juvenile hall on June 28, 2014. Marcus and another
minor challenged each other and began exchanging punches. The two boys continued
fighting as they were ordered to desist and then pepper sprayed. The fight ended when
correctional officers seized them.
       At the dispositional hearing, Jessica testified that Marcus behaved well after he
was released and before the second shooting. He did not miss school, did his chores, and
obeyed her. She said she was willing to take steps to become educated about gangs and
how to prevent gang involvement. She had moved from Modesto to San Jose to help
Marcus escape negative influences.
       Marcus also testified that he was doing well after he was released. He was
attending school, not missing classes, getting better grades, and catching up on his course
credits so he could graduate on time. He had a job attending a photo booth. He claimed
he had “stopped associating with the people I used to associate with.” He had
participated in programs that helped him learn to control his anger and think about the
consequences of his actions. He hoped he could be placed on electronic monitoring, in a
group home, or in juvenile hall, and not be sent to DJJ.



                                             6.
       Marcus’s grade point average during the time after he was released was 3.18.
While in custody after the second shooting, and before the last fight, he received an honor
roll certificate. According to the result of an assessment, a report of which was attached
to the probation officer’s report, Marcus’s risk level for reoffending was moderate. This
report further stated that no service needs had been identified for Marcus.
       Marcus’s counsel argued that DJJ had a high recidivism rate and would likely lead
to a long-term cycle of being in and out of custody. Further, the change from juvenile
hall to DJJ would be “a huge jump.” Counsel argued for a group-home placement. She
said Marcus would benefit from role models and counseling in such a placement and
would have a better chance of success.
       The trial court agreed with the probation officer’s recommendation of a
commitment to DJJ. In explaining its ruling, the court emphasized several factors. It
pointed out that the original offense is listed in Welfare and Institutions Code
section 707, subdivision (b), and that Marcus therefore could have been prosecuted as an
adult under subdivision (c). Both the original offense and the probation violation
involved Marcus firing a gun. After the original offense, the probation officer and the
juvenile court considered a DJJ commitment, and the juvenile court gave Marcus more
time in juvenile hall than the probation officer recommended. In spite of the extra time,
Marcus reoffended soon after his release While in juvenile hall, Marcus was involved in
fighting. In the most recent incident, Marcus had disobeyed an order to stop fighting
even after he had been pepper sprayed. In her recent statements to the probation officer,
Marcus’s mother continued to report that she had no awareness of Marcus’s drinking,
drug use, and gang involvement.
       All these facts indicated that a home commitment with electronic monitoring and
another juvenile hall commitment would both be inadequate responses to Marcus’s
behavior. Further, in a group home, “there’s not as much supervision” as in a more
restrictive setting, and “[p]eople can come and go more as they please.”

                                             7.
       The court found that placements in juvenile hall and on probation in his mother’s
custody had failed; that all reasonable efforts had been made to prevent removal from the
home; that all reasonable alternatives had been considered; and that a DJJ commitment
would benefit Marcus and was in his best interest. He needed intense supervision in a
secure facility. It was probable that he would benefit from the reformatory, education,
and treatment resources at DJJ. The court also stated that a DJJ commitment was
appropriate to hold Marcus accountable and to protect the community. It committed
Marcus to DJJ with a maximum confinement time of 84 months
                                      DISCUSSION
       Marcus challenges the juvenile court’s decision to commit him to DJJ. In
determining whether the juvenile court acted within its discretion in making its
commitment decision, we indulge all reasonable inferences supporting the decision; we
do not substitute our own judgment about which placement would be best; and we
reverse only if the juvenile court’s action exceeds the bounds of reason. (In re Angela M.
(2003) 111 Cal.App.4th 1392, 1396; In re Khamphouy S. (1993) 12 Cal.App.4th 1130,
1135.) We can affirm, however, only if the record contains evidence showing that there
is a probable benefit to Marcus from the discipline and treatment available at DJJ and that
less-restrictive alternatives would be ineffective or inappropriate. (Welf. & Inst. Code,
§ 734; In re Angela M., supra, at p. 1396.) Public safety, the need to hold the minor
accountable for his behavior, the circumstances and gravity of the offense, the minor’s
previous delinquent history, and the minor’s age are all proper factors for the juvenile
court to consider; and there is no requirement that a commitment to a less-restrictive
placement be tried before a DJJ commitment can be imposed. (Welf. & Inst. Code,
§§ 202, subds. (a), (b), 725.5; In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684; In re
M.S. (2009) 174 Cal.App.4th 1241, 1250.)
       The court did not abuse its discretion. There was ample evidence that less-
restrictive alternatives were ineffective. Juvenile hall and probation in parental custody

                                             8.
had proved inadequate as Marcus reoffended while on probation in his mother’s custody
weeks after his release from a significant period in juvenile hall. The court could
reasonably find that a group-home commitment would have little chance of greater
success, since Marcus would have the ability to continue committing dangerous offenses
in the community if living in a group home. Also, his fighting and other misbehavior in
juvenile hall provided scant grounds for confidence about his conduct toward other
minors in the less-secure environment of a group home.
       There also was substantial evidence that Marcus would probably benefit from a
DJJ commitment. The probation officer wrote that Marcus’s violent behavior called for
treatment, including gang-intervention treatment, that was not available in other settings.
Further, DJJ’s locked environment could reasonably be found to constitute a benefit,
since Marcus had a record of resorting to firearms to cope with problems when free in the
community. Preventing this behavior benefits Marcus as well as the community.
       Marcus argues that the probation officer did not consider a group-home placement.
The question, however, is not what the probation officer considered but whether the
evidence supports the ruling. Marcus also mentions several factors that, in his view,
weighed in favor of a different disposition: an assessment rated the likelihood he would
reoffend as moderate; the same assessment identified no service needs for him; Marcus
said he was motivated to change his behavior; he had completed 85 out of 200 course
credits needed to finish high school; he could potentially stay in a group home until he is
20, not just until he is 18; DJJ’s population represents only a small portion of the juvenile
wards in California, those with the most intensive needs; and the DJJ commitment will
undermine Marcus’s family relationships because DJJ’s facilities are distant from his
mother’s home. These were all factors the court could consider, but the question on
appeal is whether, in light of the evidence, the juvenile court’s decision was within the
bounds of reason, not whether there were any factors that could have supported a
different decision.

                                             9.
                            DISPOSITION
The judgment is affirmed.




                                10.
