Filed 6/24/15 In re Andres R. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIFTH APPELLATE DISTRICT

In re ANDRES R., a Person Coming Under the 

Juvenile Court Law. 

THE PEOPLE, 

Plaintiff and Respondent, 

 v. 

ANDRES R., 

Defendant and Appellant. 

F070087 

(Super. Ct. No. 14CEJ600263-1) 

OPINION

THE COURT*

 APPEAL from a judgment of the Superior Court of Fresno County. Gregory T. 

Fain, Judge. 

 Robert F. Kane, under appointment by the Court of Appeal, and Rick Horowitz for 

Defendant and Appellant. 

 Kamala D. Harris, Attorney General, Gerald A. Engler, 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 Poochigian, Acting P.J., Franson, J. and Peña, J. 
2. 

 Andres R. appeals from his commitment to the California Department of 

Corrections and Rehabilitation, Division of Juvenile Justice (DJJ),1 after admitting 

allegations that he committed assault with a deadly weapon (a baseball bat) for benefit of, 

or in association with a criminal street gang. We affirm. 

FACTS AND PROCEDURAL HISTORY

 On April 10, 2014, the Fresno County District Attorney filed a wardship petition 

under section 602, alleging that Andres committed murder while armed with a firearm. 

(Pen. Code, §§ 187, subd. (a), 12022, subd. (a)(1); count 1.)2 Andres denied the 

allegations. On June 18, as part of a plea agreement, a first amended wardship petition 

was filed. It added count 2, which alleged Andres committed assault with a deadly 

weapon (a baseball bat) for the benefit of, at the direction of, or in association with a 

criminal street gang. (Pen. Code, §§ 186.22, subd. (b)(1), 245, subd. (a)(1); count 2.) 

Andres admitted count 2, in return for which count 1 was dismissed, and the matter was 

set for disposition. 

 In the course of Andres’s admission, the following occurred: 

 “THE COURT: Counsel, how would you wish to handle the factual 

basis? Would you like to set it forth ... at this time, Mr. Brickey 

[(prosecutor)]? 

 “MR. BRICKEY: Sure. I can make an attempt, and I would invite 

counsel if I leave anything out to go ahead and add in. 

 “THE COURT: So you need to listen, and then I’m going to ask you 

if you agree to this. Okay. [¶] ... [¶] 

 

1 In the record, the minor’s first name is variously spelled “Andres” or “Andreas.” 

We use the first spelling, as it was used by Andres and his relatives in the letters they 

wrote to the court. 

 DJJ is sometimes referred to as the Division of Juvenile Facilities. (See, e.g., 

Welf. & Inst. Code, § 1710, subd. (a); further statutory references are to the Welfare and 

Institutions Code unless otherwise stated.) 

2 All references to dates in the facts and procedural history are to 2014. 
3. 

 “MR. BRICKEY: On or about February 26th, 2014, this minor, 

along with other coparticipants, went to the home in which the victim ... 

Kevin Roy Bonton and others, including a Norteño gang member or 

Norteño dropout were staying. 

 “The minor and other coparticipants requested that the Norteño and 

Mr. Bonton exit the house. When they did not exit, the minor and his 

coparticipants, some of which were armed with bats, one of which was 

armed with a handgun, waited for Kevin Bonton and the Norteño to exit the 

house. When Mr. Bonton and the Norteño exited the house on bicycles, 

they fled. They were chased by the minor and other coparticipants. One 

other coparticipant, Jacob Abston, who was armed with a handgun, shot 

and killed Kevin Roy Bonton as he was fleeing the scene. 

 “THE COURT: That was in Fresno. 

 “MS. SANCHEZ [sic]: That was in Fresno. Mr. Abston the People 

believe and allege that he is an active participant of the Fresno Bulldogs 

along with coparticipant [P.M.]. 

 “THE COURT: Okay.... [¶] Do you so stipulate, Mr. Horowitz 

[(defense counsel)]? 

 “MR. HOROWITZ: Your Honor, the only thing I do want to say 

about that is the facts relating to the shooting are not part of count two. So 

in terms of a factual basis for count two, those particular facts are irrelevant 

to count two. They may be relevant in terms of disposition overall, but they 

are not relative to count two. 

 “THE COURT: All right. Still yet they are part of — 

 “MR. HOROWITZ: And I will otherwise stipulate. 

 “THE COURT: Okay. 

 “MR. BRICKEY: And that occurred in Fresno County. 

 “THE COURT: Fresno County. [¶] Did you hear the statement of 

facts as set forth on the record by counsel at this time, Andres? 

 “THE MINOR: Yes, sir. 

 “THE COURT: Is that what happened? 

 “THE MINOR: Yes, sir.” 
4. 

 In preparation for the disposition hearing, the probation officer reported that 

Andres, who recently turned 17 years old, was enrolled in 10th grade in an independent 

studies/IEP program, and was receiving C’s and D’s. Andres said he wished things had 

not happened as they did; he did not know what was going to take place or that anyone 

had a gun or a bat. The probation officer reported Andres did not have a prior record, but 

had engaged in some misbehavior (mostly in the form of not following rules and making 

inappropriate comments) while detained at the Juvenile Justice Campus (JJC). 

 The probation officer recommended Andres be committed to DJJ. She recognized 

this was Andres’s first adjudicated offense, but found the protection of the community 

was paramount; Andres had involved himself in gang activity; and less restrictive 

programs would not provide an adequate level of rehabilitation or accountability for him 

under all the circumstances.3 She recommended the maximum period of confinement be 

set at nine years (four years for the offense plus five years for the gang enhancement) in 

order to hold Andres accountable, afford him an opportunity to rehabilitate, and provide 

protection to the community. The probation officer related that if committed to DJJ, 

Andres would have a baseline discharge date of two years, and that after an assessment of 

his needs that would include psychological testing, a treatment program would be 

developed. Andres would participate in an academic program, and would also be 

referred to other programs including Aggression Interruption Training, Gang Awareness, 

Victim Awareness, and Counter Point. 

 

3 At the time of Andres’s admission, the prosecutor made clear that the Penal Code 

section 186.22 enhancement was not based on Andres being an active participant in a 

criminal street gang, but on the crime having been committed in association with, for the 

benefit of, or at the direction of a criminal street gang. When interviewed by police after 

the shooting, Andres denied being a Bulldog gang member, but admitted his friends were. 

He also admitted he was aware there was going to be a fight, so he went to “back up” his 

friends. 
5. 

 In a letter to the court, Andres admitted he should not have gone to the house, and 

stated he understood the wrong that was done that night. Andres said he learned from 

that night that he needed to be careful who he called his friends and with whom he 

associated, because he could easily be accused and get in trouble for someone else’s 

wrongdoing and mistakes. Andres related that his goals were to graduate from high 

school, get a degree in music engineering, and own his own studio, and that he had a job 

with his uncle in an aluminum business. A number of Andres’s relatives wrote letters on 

his behalf. 

 A disposition hearing was held July 25. Multiple family members and friends 

were present. At the outset, the court stated it had read and considered the probation 

officer’s report, the letter from Andres and its attachments showing his goals, and 

numerous letters in support of Andres. 

 Defense counsel represented, based on his discussions with Andres, that Andres 

knew there was going to be a fight on the night Bonton was killed, but did not know 

anyone was going to bring a weapon or be killed. Counsel related that Andres disavowed 

membership in the Bulldogs gang, but sometimes associated with friends who were in the 

gang. Counsel informed the court that Andres’s admission was, to a certain extent, in the 

nature of a “no contest” admission; Andres had been told by the prosecution that if he did 

not plead to second degree murder with a deadly weapon enhancement, the People would 

request a fitness hearing. Andres wanted to force the People to prove the allegations, but, 

when the new offer was made, he discussed his options with counsel and reluctantly 

concluded it was in his best interests to accept it. Counsel further noted there was no 

evidence Andres personally was armed. 

 Defense counsel pointed out that Andres had no prior record of any kind of 

criminal involvement. Counsel also related that although Andres originally was confused 

and upset and feeling unjustly accused, he immediately began working with counsel and 

others to set goals. He also started reading in order to improve his reading and writing 
6. 

skills. Counsel represented that Andres had raised the level at which he was working in 

science and math. Andres also started going to some kind of a church group and had 

stopped cussing, and was being trusted enough to be given job assignments in a high 

security pod at JJC. JJC staff had told counsel that Andres was generally a nice young 

man who tried to do what he was supposed to and who stayed out of trouble. 

 Counsel noted that DJJ’s own Web site said local commitments were preferred to 

make it easier for family to participate in rehabilitation. Counsel drew the court’s 

attention to the number of family members who were present and/or had written letters in 

support of Andres. Counsel also argued Andres had demonstrated his ability to respond 

to local rehabilitative efforts. Counsel asserted the seriousness of the offense itself was 

not dispositive; rather, the court had to look at Andres’s level of involvement. Counsel 

concluded that when all factors were considered, a local commitment was appropriate. 

 The prosecutor responded that Andres was not before the court because of what he 

did with his family, but because of what he was doing “out on the streets.” He pointed 

out that the People’s theory of the assault was not that Andres personally was armed, but 

that he aided and abetted others who obviously were armed. The prosecutor noted 

Bonton was dead and would not have a chance to achieve the kind of goals Andres had 

set for himself, and he argued Abston would not have been brazen enough to do what he 

did without the support of Andres and the others who were present. The prosecutor 

asserted that if someone was associating with gang members who said they were going to 

get in a fight, common sense suggested it was likely someone would get badly hurt. He 

argued there had to be consequences for actions. 

 The probation officer acknowledged this was Andres’s first offense and he had a 

lot of family support. She stated, however, that there were no local commitments that 

would offer him the educational services available at DJJ.4 She recognized Andres could 

 

4 Andres was determined to be an individual with exceptional needs. 
7. 

attend school at JJC, but explained the services were not as extensive, or the teacher-tostudent ratio as low, as at DJJ. She also related DJJ could provide gang awareness 

education classes and programs, as well as victim awareness education, that would not be 

available at the local level. The probation officer viewed Andres’s good response at the 

local level as proving he would excel at DJJ, where he would receive much more than 

could be offered locally. 

 Andres personally addressed the court. He related how much help he was getting 

at JJC, both in terms of setting goals and improving his educational skills, and in terms of 

how the church services helped him get through a lot of things. Andres expressed 

confidence he could come back from the mistakes he made, and he said he had learned 

there were people with whom he should not associate. 

 The court acknowledged Andres’s strong family support. It also found Andres to 

be a person who had a “good heart” and who could have a very successful life. It noted 

Andres had had to overcome family hardship and issues with his educational situation. 

The court explained: 

“But you should understand, and your family should understand, that I have 

to take all into account. Okay. I want to do what’s in your best interests. 

But I also have to take into account the seriousness of the offense, what 

happened. This isn’t a situation where it’s fortunate if the bullet just grazes 

the young man, it may be different. But somebody gets shot in the back of 

the head — and I know you didn’t do it. I mean according to the facts here, 

you didn’t do it personally, but, you know, that’s a serious thing. 

Somebody has lost their life. 

 “And remember, people do things. Mr. Brickey made an excellent 

comment. Both counsel made a lot of excellent comments, but one that I 

thought comes across a lot for me is, is the person who is doing the actions 

— in this case there’s a name, Sert, or whatever the nickname is, going to 

the house. Would he be so bold as to go to the house or do what he’s doing 

unless he had people backing him up? And that’s where these gang things 

get so serious and so problematic is that people when they have groups are 

more bold ... than when they don’t and they are just out there by 

themselves. 
8. 

 “So I have to consider those things, and I have to consider your 

involvement, and it’s serious.... You wrote me good letters. I think you 

will be a success, and I am taking everything into account. I want you to 

know that. I’m taking your strong family support into account too.... 

 “And I will tell you that, you know, I prepare these cases. I always 

read them more than once. I always read things before sentencing for 

disposition. Night before, I read them, and I read them in the morning, and 

then I hopefully can come — and then I listen to everybody’s comments. 

Sometimes I’ll change my mind from what I was thinking before. 

Sometimes I don’t. 

 “It’s a very serious decision. I want you to know I’ve thought about 

it very much.... So my comments are with encouragement, but yet there is, 

of course, accountability, and I think there’s nobody in the room who 

would think that there can’t be accountability. 

 “And again, family members, if you are sitting there, think about if 

this was ... Andres that had been killed, laying on the back of [sic] the 

street with a bullet in his head, how would you feel? How would you want 

a judge to respond to that and treat the young people involved? 

 “Okay. As I mentioned, I think Mr. Horowitz and Mr. Brickey were 

certainly fair and made extremely correct decisions in regard to this case.... 

[¶] ... [¶] 

 “... I’m going to send you to DJJ. Okay. I don’t say that lightly. I 

think you can benefit from it. I think that it’s the only program out there 

that I think that has an adequate level of rehabilitation and accountability 

under these circumstances that we’ve discussed, but I’m not going to send 

you for the maximum term.... And it’s not at all giving up on you or at all 

discounting what your family said or what the [sic] steps you’ve taken. 

You will come out of this if you take it with the right attitude in a positive 

fashion. I think you will. 

 “Okay. So I’ve went [sic] through a lot of the concerns as far as this 

matter in terms of the factors under [section] 731[, subdivision] (c). I have 

considered those facts and circumstances. I do take note that he does not 

have any prior record. I do take note also that in the report, it was 

referenced that [Andres] was not a gang member. He affiliated, backed up 

— however that may have been, but, you know, I think all the parties have 

said that he was not a validated gang member, and I did take that into 

account. 
9. 

 “I do take into account also that he did not personally use a weapon, 

but a weapon was used. As I referenced earlier, the offense did involve just 

such a great violence, a great harm to another person, in fact the death of 

another person. It was cruel, vicious, and callous. That’s a big factor. 

 “I do weigh these circumstances.... I’ve taken into account his very 

strong family support, ... his progress in the Juvenile Justice Facility, and 

his overall prospects and interests.” 

 Having weighed all the circumstances, the court elected to set the maximum 

period of confinement at five years, rather than the statutory maximum of nine years. It 

stated it had “strongly considered all less local restrictive programs and forms of 

custody” and was “fully satisfied” they were inappropriate dispositions and that Andres 

could benefit from the various programs provided by DJJ.5 

DISCUSSION

 Andres contends the juvenile court erred by committing him to DJJ. While we 

agree the court reasonably could have eschewed a DJJ commitment in favor of some less 

restrictive alternative, this does not mean the court acted unreasonably. 

 An appellate court “reviews a commitment decision for abuse of discretion, 

indulging all reasonable inferences to support the juvenile court’s decision. [Citations.]” 

(In re Angela M. (2003) 111 Cal.App.4th 1392, 1396; accord, In re Asean D. (1993) 14 

Cal.App.4th 467, 473.) “When the question on appeal is whether the trial court has 

abused its discretion, the showing is insufficient if it presents facts which merely afford 

an opportunity for a difference of opinion. An appellate tribunal is not authorized to 

substitute its judgment for that of the trial judge. [Citation.]” (People v. Stewart (1985) 

171 Cal.App.3d 59, 65; see In re Todd W. (1979) 96 Cal.App.3d 408, 416.) Rather, the 

standard “asks in substance whether the ruling in question ‘falls outside the bounds of 

 

5 The court also made other findings and orders, such as with respect to restitution 

and gang registration, that are not pertinent to the issue raised on appeal. 
10. 

reason’ under the applicable law and the relevant facts [citations].” (People v. Williams

(1998) 17 Cal.4th 148, 162.) 

 “A trial court abuses its discretion when the factual findings critical to its decision 

find no support in the evidence.” (People v. Cluff (2001) 87 Cal.App.4th 991, 998.) To 

uphold a DJJ commitment on appeal, “there must be evidence in the record 

demonstrating both a probable benefit to the minor by a [DJJ] commitment and the 

inappropriateness or ineffectiveness of less restrictive alternatives. [Citations.]” (In re 

Angela M., supra, 111 Cal.App.4th at p. 1396.) Where such evidence exists, a DJJ 

commitment is not an abuse of discretion (In re M.S. (2009) 174 Cal.App.4th 1241, 

1250), even when the minor has not previously received a less restrictive placement (In 

re Eddie M. (2003) 31 Cal.4th 480, 488; In re Asean D., supra, 14 Cal.App.4th at p. 473). 

 In determining whether the juvenile court acted arbitrarily or irrationally in 

ordering a DJJ commitment in a particular case, we assess the record, and evaluate the 

exercise of discretion, in light of the purposes of the Juvenile Court Law. (In re Michael 

D. (1987) 188 Cal.App.3d 1392, 1395; see In re Lorenza M. (1989) 212 Cal.App.3d 49, 

57-58.) “Under section 202, juvenile proceedings are primarily ‘rehabilitative’ (id., 

subd. (b)), and punishment in the form of ‘retribution’ is disallowed (id., subd. (e))” (In 

re Eddie M., supra, 31 Cal.4th at p. 507); however, the law recognizes punishment as a 

tool of rehabilitation, and strives to provide for the protection and safety of the public as 

well as each minor under the juvenile court’s jurisdiction (§ 202, subds. (a) & (b); In re 

Asean D., supra, 14 Cal.App.4th at p. 473; In re Michael D., supra, 188 Cal.App.3d at 

p. 1396). 

 In addition, in order for a minor to be statutorily eligible for a DJJ commitment, 

his or her most recent offense must be listed in subdivision (b) of section 707. (§ 733, 

subd. (c); see In re D.B. (2014) 58 Cal.4th 941, 944.) “The Legislature’s primary 

purpose in enacting [section 733, subdivision (c)] was to reduce the number of juvenile 

offenders housed in state facilities by shifting responsibility to the county level ‘“for all 
11. 

but the most serious youth offenders.”’ [Citations.]” (In re D.B., supra, at p. 948.) 

Andres admitted committing assault with a deadly weapon. Although not specifically 

enumerated, that offense has been held to be encompassed within subdivision (b)(14) of 

section 707, which lists “[a]ssault by any means of force likely to produce great bodily 

injury.” (In re Pedro C. (1989) 215 Cal.App.3d 174, 182-183.) Andres thus falls within 

the group of juvenile offenders deemed most serious by the Legislature. 

 Turning to the record before us, it is apparent the juvenile court considered, as 

required by section 725.5, Andres’s age and lack of previous delinquent history, and the 

circumstances and gravity of the offense.6 (See In re Gary B. (1998) 61 Cal.App.4th 844, 

848-849; In re Tyrone O. (1989) 209 Cal.App.3d 145, 152.) It also made the necessary 

findings with respect to the probable benefit Andres would receive from DJJ and the 

inappropriateness of less restrictive local programs. Andres says the record does not 

support the court’s findings, but we disagree, particularly in light of the probation 

officer’s explanation of the educational, gang awareness, and victim awareness classes 

and resources that would be beneficial to Andres and that were available at DJJ but not 

locally.7 Andres points out that he was making significant progress while at JJC, but this 

was argued to the court, as was the fact local commitments are preferred under the law. 

We will not assume the court failed to consider these matters. (See In re Ricky H. (1981) 

 

6 Section 725.5 provides: “In determining the judgment and order to be made in 

any case in which the minor is found to be a person described in Section 602, 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.” 

7 Andres cites to various statistics and articles that, he contends, contradict the 

juvenile court’s findings. Although available on the Internet, these matters were not 

presented to the juvenile court, and we question whether they are properly before us. In 

any event, they do not change our analysis or conclusion, as they merely afford an 

opportunity for a difference of opinion. 
12. 

30 Cal.3d 176, 183-184.) Indeed, the record shows the court carefully considered all the 

information before it. 

 Andres argues, based largely on the trial court’s statement that DJJ was “the only 

program out there that ... has an adequate level of rehabilitation and accountability under 

[the] circumstances,” and its asking Andres’s family members how they would want a 

judge to respond if Andres had been the one killed, that the court impermissibly 

considered retribution for the victim. Permissible punishment under the Juvenile Court 

Law means the imposition of sanctions, but, as previously noted, does not include 

retribution. (§ 202, subd. (e).) 

 We do not read the court’s comments or reasoning as indicating a retributive 

purpose or attitude. Holding Andres accountable for his misdeed while at the same time 

seeking to ensure he is rehabilitated is not the same as exacting a punishment in 

repayment for the victim’s life.8

 To summarize, the juvenile court considered all relevant factors prior to 

committing Andres to DJJ. The court’s decision as to each factor was supported by the 

record. Accordingly, we find no abuse of discretion. 

DISPOSITION

 The judgment is affirmed. 

 

8 Webster’s Third New International Dictionary (1986) page 1843 defines 

“punishment” as, inter alia, “the infliction of a penalty.” At page 1940, it defines 

“retribution” as, inter alia, “something given or exacted in recompense.” 

 At least one Court of Appeal has concluded that, although a DJJ commitment is 

the most restrictive of dispositions available for juvenile wards, it does not amount to 

greater punishment. (In re Edward C. (2014) 223 Cal.App.4th 813, 825.)