Filed 3/8/13 In re Gabriel M. 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 GABRIEL M., a Person Coming
Under the Juvenile Court Law.

THE PEOPLE,                                                                            F065599

         Plaintiff and Respondent,                                       (Super. Ct. No. MJL017689)

                   v.
                                                                                     OPINION
GABRIEL M.,

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Madera County. Thomas L.
Bender, Judge.
         Arthur L. Bowie, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and
Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-

*        Before Levy, Acting P.J., Cornell, J. and Poochigian, J.
       Appellant, Gabriel M., a minor, admitted an allegation set forth in a juvenile
wardship petition (Welf. & Inst. Code, § 602) that he committed an assault by means of
force likely to produce great bodily injury, in violation of former Penal Code section 245,
subdivision (a)(1).1 At the disposition hearing, the court adjudged appellant a ward of the
court, declared the instant offense to be a misdemeanor and placed appellant on probation
with various terms and conditions, including that he serve 30 days in juvenile hall.
       On appeal, appellant‟s sole contention is that the court erred in imposing the
juvenile hall condition of probation. We affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
Factual Background2
       A Madera Police Department report indicated the following: On December 5,
2011, the victim and his sister were walking home from school when appellant
approached and told the victim he wanted to fight him. The victim said he did not want
to fight, and he and his sister continued walking. At that point, appellant reached around
the victim‟s sister and struck the victim in the face. X-rays revealed that the victim‟s
nose was broken in two places.
       The probation officer asked appellant “how he felt about the incident.” Appellant
responded, “„I don‟t know how I feel‟ as he shrugged his shoulders and smirked.”
Appellant “expressed no remorse for his actions, nor did he appear to accept
responsibility for his behavior ....”


1       At the time of the instant offense, Penal Code section 245, subdivision (a)
proscribed the “commi[ssion of] an assault upon the person of another with a deadly
weapon or instrument other than a firearm or by means of force likely to produce great
bodily injury ....” The statute has since been rewritten such that assault by means of force
likely to produce great bodily injury is now covered in subdivision (a)(4) of Penal Code
section 245.
2      Our factual summary is taken from the report of the probation officer (RPO).



                                             2.
Procedural Background
         The wardship petition in the instant case was filed May 7, 2012.3 On May 24, at
the detention hearing, appellant‟s mother, in response to the court‟s question as to how
appellant was “doing at home,” stated appellant was “doing good”; he had been accepted
into Grizzly Youth Academy (GYA), a military boarding school in San Luis Obispo; and
he would begin the six-month residential program there on July 14. A few moments
later, the court, speaking to appellant, noted, “So you‟re going to Grizzly Academy in
July.”
         According to the RPO, GYA is “structured as a „military boarding school‟ to
promote an academic environment that helps develop leadership, cooperation, and
academic skills, while improving self esteem, pride, and confidence.” GYA is “run by
the California National Guard” and is located at Camp San Luis Obispo at the National
Guard Training Base.
         On June 7, at the trial setting hearing, the court asked appellant if he was “still on
track to go to the Grizzly Academy.” Appellant answered, “Yes.”
         On June 11, at the proceeding in which appellant entered his admission, the
prosecutor mentioned at the outset that appellant had been “accepted to the Grizzly
Academy.” The court questioned whether “Grizzly [is] going to take [appellant]” if
appellant admitted the misdemeanor allegation, and appellant responded, “They already
accepted me.” The court advised appellant that if he entered his admission, a disposition
hearing would be conducted at some point in the future, at which time the court could
impose any of a number of possible dispositions, including “boot camp program, time in
the hall, group home ....” Shortly thereafter, appellant entered his admission.
         After accepting appellant‟s admission, the court stated, “I believe the
understanding also, Gabriel, is that you‟ll be allowed to go to the Grizzly Academy.... If
3        Further references to dates of events are to dates in 2012.



                                                3.
[the probation department is] recommending something different than that, I‟ll allow [you
to] withdraw your admission.” The court set the disposition hearing for June 28.
       On June 28, the court continued the hearing to July 30. The court rejected the
defense request for an earlier date, after defense counsel told the court appellant would be
“attending Grizzly Academy, which is a several week program in the San Luis Obispo
area starting July 14th.”
       On July 30, the court continued the disposition hearing again. The court stated, “I
... need an update in the [RPO] regarding this Grizzly Academy, what that actually
entails.”
       The RPO was filed August 1. In it, the probation officer reported the following:
GYA “indicated they were not aware that [appellant] was currently pending [c]ourt
proceedings,” and that it is “against [GYA‟s] policy to accept a minor/cadet while
pending proceedings; nonetheless, they indicated due to [appellant] having already begun
the process[,] they will allow [appellant] to continue in the program. They reported
[appellant] is doing well in the program ... and tentatively expect [him] to graduate the
residential phase of the program on December 15 ....”
       The court continued the disposition hearing at least one other time while appellant
continued to attend GYA. The disposition hearing was finally held on August 16, after
the court agreed that appellant need not be present.
       On August 16, the probation officer filed a “Recommended Findings and Orders,”
recommending that appellant be placed on probation and that he serve 100 hours of
community service. (Unnecessary capitalization omitted.) The officer did not
recommend that appellant serve any time in custody. At the outset of the August 16
hearing, the court stated: “... I‟ve read the report. I think in a way the recommendation is
somewhat lenient. I‟m inclined to follow it. I would most likely increase community
service hours but follow the recommendation.” At that point, the court heard argument
from defense counsel, and thereafter, the court also heard from appellant‟s mother and

                                             4.
the victim‟s mother. The court then stated: “I‟m -- you know, the more I think about it, I
think, actually, [appellant] does need to serve some time. I‟m not happy that he went to
the Grizzly Academy prior to this case being completed and he shouldn‟t have done that.
And I think you knew that, and so he‟s going to end up serving some time. It‟s going to
be 30 days in the hall, and I‟m going to have him do that time when he gets out of the
Grizzly Academy.”
       At that point, defense counsel stated that appellant‟s mother “was very careful to
check with both myself and probation about sending [appellant to GYA],” at which point
the following colloquy took place:
       “THE COURT: Did anyone check with me? Who‟s in charge?
       “[DEFENSE COUNSEL]: Well --
       “THE COURT: Who‟s in charge?
       “[DEFENSE COUNSEL]: You are, your Honor.
       “THE COURT: I am. Okay. And no one asked me. End of discussion. He‟s
there. I‟m not happy he‟s there. This case wasn‟t finished. We hadn‟t even gone to
dispo yet. And now he‟s over there and everyone is using this as an excuse to be lenient
on him. That upsets me, quite honestly. And if I was them, I‟d be upset and I can
understand why they‟re upset. Oh, he‟s over there, you can‟t touch him now. That‟s
bologna. And it was unprovoked and that kid was hurt, and that shouldn‟t have happened
and your son was a bully. And all these other kids are bullies. That‟s how I see it, and it
needs to stop. And if it doesn‟t, he‟s going to be on probation. He violates probation
he‟s going to have a problem with me. I can guarantee you.”
       Defense counsel acknowledged that “nobody confirmed with [the court]” that
appellant would attend GYA before he began the program. Counsel also stated she was
not aware the court “did not want [appellant] to attend the Grizzly Academy” and
apologized to the court. Counsel further noted that she had learned from “Chief Wise at



                                             5.
the academy” that appellant was “doing very well” and was “showing great promise.”
There followed the following colloquy:
       “THE COURT: Well, you know what, I‟m glad he‟s doing well. [¶] Has he ever
apologized for what he‟s done?
       “[APPELLANT‟S MOTHER]: He hasn‟t personally apologized, because I didn‟t
want contact with him. I didn‟t want to have him --
       “THE COURT: Did he ever write a letter saying he was sorry?
       “[APPELLANT‟S MOTHER]: No, he hasn‟t, your Honor. [¶] … [¶]
       “THE COURT: … that tells me a lot.”
                                      DISCUSSION
       Appellant contends the court abused its discretion in imposing the juvenile hall
probation condition because, he asserts, his “history with the juvenile justice system” was
“brief”; the “criminal nature” of the instant offense was “minimal”; he participated in
GYA; the court “failed to seriously consider” the RPO; and there was “no evidence ...
that juvenile hall was equipped to provide [appellant] with the necessary services to
address his rehabilitation.” In addition, appellant challenges the “basis” for the court‟s
imposition of the juvenile hall condition. He argues the court ordered appellant
committed to juvenile hall out of “irritation” that appellant “failed to get permission from
the court to attend Grizzly Academy,” to “show the parties „Who‟s in charge,‟” and
simply to punish appellant.
Governing Principles
       “The juvenile court is empowered to impose conditions of probation in juvenile
cases and has broad discretion when formulating such conditions.” (In re Juan G. (2003)
112 Cal.App.4th 1, 6, fn. omitted.) Thus, the juvenile court may impose “„“any
reasonable condition that is „fitting and proper to the end that justice may be done and the
reformation and rehabilitation of the ward enhanced.‟”‟ [Citations.]” (In re Sheena K.
(2007) 40 Cal.4th 875, 889.) “In deciding what probation conditions are appropriate, the

                                             6.
court shall consider not only the circumstances of the offense but also the minor‟s entire
social history. Such conditions are valid and enforceable unless they bear no reasonable
relationship to the underlying offense or prohibit conduct that is neither criminal in nature
nor related to future criminality. On appeal, the court‟s exercise of discretion will not be
disturbed absent a manifest abuse of discretion.” (In re Juan G., at p. 7, fns. omitted.)
       Welfare and Institutions Code section 202 (section 202) provides in relevant part:
“Minors under the jurisdiction of the juvenile court as a consequence of delinquent
conduct shall, in conformity with the interests of public safety and protection, receive
care, treatment, and guidance that is consistent with their best interest, that holds them
accountable for their behavior, and that is appropriate for their circumstances. This
guidance may include punishment that is consistent with the rehabilitative objectives of
this chapter.” (Id., subd. (b).) Thus, “[u]nder section 202, juvenile proceedings are
primarily „rehabilitative‟ [citation], and punishment in the form of „retribution‟ is
disallowed [citation].” (In re Eddie M. (2003) 31 Cal.4th 480, 507.) But, “[w]ithin these
bounds, the court has broad discretion to choose probation and/or various forms of
custodial confinement in order to hold juveniles accountable for their behavior, and to
protect the public. ([§ 202,] subd. (e).)” (Ibid.) “In 1984, the Legislature amended the
statement of purpose found in section 202 of the Welfare and Institutions Code. It now
recognizes punishment as a rehabilitative tool and emphasizes the protection and safety
of the public. [Citation.] The significance of this change in emphasis is that when we
assess the record in light of the purposes of the Juvenile Court Law [citation], we
evaluate the exercise of discretion with punishment and public safety and protection in
mind. Such was not the case before 1984.” (In re Lorenza M. (1989) 212 Cal.App.3d 49,
57-58, fn. omitted.)




                                              7.
Analysis
       Preliminarily, we note that the court‟s expression of displeasure at appellant‟s
participation in GYA at the August 17 disposition hearing is surprising, given that the
court expressed no such displeasure at any of the many earlier proceedings at which the
court was aware that appellant was attending GYA. This factor, however, does not
establish that the court imposed the juvenile hall condition out of retribution.
       At the outset of the August 17 hearing, the court expressed its view that the
disposition recommended by the probation officer was not sufficient to hold appellant
accountable for his actions. Moreover, the court was entitled to credit the evidence that
appellant committed an unprovoked attack, resulting in significant injury, as well as the
probation officer‟s observation that appellant exhibited no remorse. (See In re Asean D.
(1993) 14 Cal.App.4th 467, 473 [minor‟s commitment to California Youth Authority
(CYA) upheld where his “continuing refusal … to take responsibility for the crimes[]
clearly signalled that he constituted a serious danger to the public unless securely
confined”]; In re Michael D. (1987) 188 Cal.App.3d 1392, 1397 [minor‟s “unrepentant
and cavalier attitude” regarding his offense supported CYA commitment].) On this
record, under the principles summarized above and given the purposes of the juvenile
court law, requiring that appellant serve 30 days in juvenile hall was well within the
court‟s discretion.
                                      DISPOSITION
       The judgment is affirmed.




                                             8.
