Filed 9/4/14 In re Wyatt V. 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 WYATT V., a Person Coming Under the
Juvenile Court Law.

THE PEOPLE,                                                                                F067743

         Plaintiff and Respondent,                                            (Super. Ct. No. JJD065772)

                   v.
                                                                                         OPINION
WYATT V.,

         Defendant and Appellant.


                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tulare County. Juliet L.
Boccone, 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, Julie A. Hokans and John W.
Powell, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-


*        Before Cornell, Acting P.J., Gomes, J. and Kane, J.
                                    INTRODUCTION
       It was found true that appellant Wyatt V. had attempted willfully and deliberately
to commit murder, conspiracy to commit murder, kidnapping to commit robbery, and
criminal threats. Wyatt contends the juvenile court failed to exercise its discretion
properly when he was committed to the Department of Corrections and Rehabilitation,
Division of Juvenile Facilities (DJF), for a maximum period of 40 years to life for these
offenses. We disagree and will affirm the commitment order.
                    FACTUAL AND PROCEDURAL SUMMARY
       In April 2013 Wyatt was a ward of the juvenile court. A Welfare and Institutions
Code section 6021 petition was filed against him in 2011 alleging multiple counts,
including first degree burglary, vandalism, second degree burglary, and misdemeanor
attempted petty theft. Wyatt admitted some of the counts and several of the others were
found true by the juvenile court. As a result, Wyatt was declared a ward of the court,
placed on probation, and placed in the physical custody of his father.
       In October 2012 a probation violation was alleged, which Wyatt admitted. In
November 2012 the juvenile court continued Wyatt as a ward, again placing him in the
custody of his father and under the supervision of the probation officer.
       On April 4, 2013, Amy K. was working as a pizza delivery person. Around 4:00
p.m. that day she received an order for a pizza delivery. When she arrived, Ronald J.
answered the door and told her to bring the pizza around to the back. Once in the back,
Pete S. appeared and pointed a rifle at Amy. Pete told Amy to “drop everything” and to
“get down,” and she complied. At this point, Wyatt came outside and Pete handed the
rifle to Wyatt.



       1All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.



                                             2.
          Amy’s wrists, arms, and feet were bound and she was blindfolded. She could hear
the boys talking about the bag of money she had dropped. Even though blindfolded,
Amy could see Pete, who told her he and the others made money by going after delivery
drivers. Wyatt, Pete, Ronald, and a fourth juvenile, Logan H., discussed what to do with
Amy. At one point Logan tried to break Amy’s neck by grabbing her neck and twisting
it.
          Logan indicated Amy had to die. Wyatt stated that one of the guys “wants a go at
her” and that they were going to rape Amy with a knife. Logan and Wyatt proceeded to
discuss various ways to kill Amy. At some point they took the keys to Amy’s car from
the pocket of her pants. Amy could hear the sounds of the boys loading items into the
car.
          Amy was told they had to kill her to prevent her from telling the police and
testifying against them. Logan told Wyatt to “[t]ake care” of Amy. Wyatt asked Amy if
she wanted “a machete to the heart” or instead have him “break [her] neck.” Amy asked
for “something not painful,” like “pills for [an] overdose.” Wyatt agreed and fed Amy 12
pills. Afterwards, Wyatt stated, “I knew we should have fucking slit her throat” and
walked out of the house.
          As soon as Amy heard the juveniles drive away in her car, she untied herself and
then tried to vomit up the pills she had swallowed. Amy then ran next door to call the
police.
          Wyatt and the other three juveniles eventually were apprehended in Nevada.
Wyatt was interviewed at a juvenile detention facility in Las Vegas on April 5, 2012.
Wyatt admitted he had committed a burglary with Logan, Ronald, and Pete. The
juveniles had planned to leave California to avoid being arrested and decided to rob a
pizza delivery driver to obtain cash and a vehicle.




                                               3.
       During the interview, Wyatt also admitted that the group of boys had planned to
kill Amy. When he was interviewed, Ronald said he gave a bottle of pills to Wyatt and
that Wyatt made Amy swallow all the pills. Ronald stated, “she should be dead by now.”
       In his interview, Logan admitted all four boys had been involved in a burglary and
they eventually decided to rob and kill a pizza delivery driver. He also acknowledged
trying to break Amy’s neck. He claimed Wyatt and Pete were the leaders of the group.
       On April 15, 2013, a section 602 petition was filed alleging Wyatt committed
willful, deliberate, and premeditated attempted murder, kidnapping to commit robbery,
second degree robbery, criminal threats, unlawful driving or taking of a vehicle, and
conspiracy to commit murder. Wyatt denied each of the allegations in the petition. At
the contested jurisdictional hearing, the juvenile court found all six counts to be true
beyond a reasonable doubt.
       The dispositional hearing was held on August 1, 2013. The juvenile court
continued Wyatt as a ward of the court, removed him from the custody of his father, and
committed him to DJF for the maximum term of 40 years to life, with the possibility of
parole for the offenses sustained in the 2013 petition. A commitment term of 12 years 6
months was ordered for the offenses sustained in the 2012 petition.
                                       DISCUSSION
       Wyatt’s sole contention on appeal is that the juvenile court failed to “expressly
exercise statutory discretion” when it committed him to DJF for the maximum term of
confinement and, consequently, the matter must be remanded. We disagree.
       As an appellate court, we review 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.) “[T]here must be evidence in the record
demonstrating both a probable benefit to the minor by a [DJF] commitment and the
inappropriateness or ineffectiveness of less restrictive alternatives.” (Ibid.) While the
juvenile court law contemplates a progressively restrictive series of dispositions, there is

                                              4.
no absolute rule that the court may not impose a particular commitment until less
restrictive placements actually have been attempted. (In re Eddie M. (2003) 31 Cal.4th
480, 507, citing Welf. & Inst. Code, § 202.) Moreover, while DJF generally is a
treatment of last resort, the circumstances in a particular case may well suggest the need
for a DJF commitment, despite the availability of lesser alternative dispositions. (In re
Tyrone O. (1989) 209 Cal.App.3d 145, 151.) A juvenile’s commitment will not be
overturned unless it exceeds the bounds of reason. (In re Travis W. (2003) 107
Cal.App.4th 368, 379-380.)
       Here, there was an exercise of discretion by the juvenile court and no abuse of that
discretion. At the dispositional hearing, the juvenile court reviewed Wyatt’s lengthy
juvenile record and his history of violating terms of probation. The juvenile court noted
that after he was declared a ward of the court in October 2011 and placed in his father’s
custody, Wyatt frequently was truant from school, was found to be under the influence of
alcohol, despite efforts of the juvenile court to have Wyatt participate in treatment
programs, continued to participate in criminal activity, and committed his most recent
offenses while on probation. The juvenile court also noted Wyatt’s tendency to lie about
or minimize his involvement in criminal activity.
       The juvenile court noted that local programs, including custodial programs and
probation, had been tried in the past with Wyatt, without success. The juvenile court
opined that Wyatt had refused to address his alcohol abuse and controlled substance
issues, was not taking full responsibility for his actions, and the current offenses were
“very serious” and potentially “life ending.” In selecting an appropriate commitment, the
juvenile court stated it was concerned about what was best for Wyatt as well as the
community.
       After articulating this reasoning, the juvenile court ordered Wyatt committed to
DJF and fixed the maximum term of commitment.



                                             5.
       When a juvenile is removed from the physical custody of a parent, as Wyatt was
here, the juvenile court must specify the maximum term of confinement that can be
imposed. (§ 726, subd. (d); In re Jovan B. (1993) 6 Cal.4th 801, 818.) Once a juvenile is
committed to DJF, a discretionary determination as to the maximum term of confinement
must be made by the juvenile court, based upon the facts and circumstances that brought
the minor before the juvenile court. (In re Carlos E. (2005) 127 Cal.App.4th 1529,
1533.) The maximum period of confinement cannot exceed the maximum period
prescribed by adult sentencing law. (Ibid.)
       Wyatt seems to believe the juvenile court has to use specific language and
expressly utter a phrase or phrases that it is considering all the facts and circumstances
and is aware of its discretion in setting a term of commitment. There is nothing in the
record to indicate the juvenile court was unaware of its discretion to impose a term of
commitment less than the maximum. A silent record, which is at best what Wyatt relies
upon, is not sufficient to rebut the presumption that the juvenile court was aware of its
discretion to impose less than the maximum term of confinement. (In re Julian R. (2009)
47 Cal.4th 487, 499 (Julian R.).)
       The probation report before the juvenile court listed no mitigating factors and 10
aggravating factors for the most recent offenses. The current offenses involved a
sophisticated plan and terrorizing the victim, who suffered from posttraumatic stress
disorder as a result, which impacted her ability to care for her autistic son.
       The juvenile court noted Wyatt’s lengthy history of offenses and the increasing
seriousness. Additionally, the juvenile court noted that Wyatt needed a long commitment
period because attempts to resolve his delinquency issues in shorter periods of time had
been unsuccessful, and that Wyatt had to cooperate in his rehabilitation. If not, Wyatt’s
behavior could warrant “commitment to a life-long program.” A lengthy term of
confinement is recognized as a rehabilitative tool in juvenile cases. (In re Luisa Z. (2000)
78 Cal.App.4th 978, 987-988.)

                                              6.
        The juvenile court’s lengthy explanation of how it arrived at the terms of
commitment clearly demonstrates the juvenile court weighed all the facts and
circumstances and balanced those facts and circumstances against what was best for
Wyatt’s rehabilitation and the protection of the community in setting a term of
commitment. The silent record and speculation relied upon by Wyatt to assert the
juvenile court was unaware of its discretion simply does not establish affirmatively that
the juvenile court was unaware of, and failed to exercise, its discretion. (Julian R., supra,
147 Cal.4th at p. 499.)
                                      DISPOSITION

       The commitment order is affirmed.




                                             7.
