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Filed 7/22/22 In re S.O. CA3 NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

----

In re S.O., a Person Coming Under the Juvenile Court Law. C093904

THE PEOPLE,

Plaintiff and Respondent,

v. S.O.,
Defendant and Appellant. (Super. Ct. No. SCRDJDSQ20311310305)

Minor S.O. was adjudged a ward of the Shasta County Juvenile Court and
committed to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ). On appeal, the minor contends the juvenile court erred in committing him to DJJ and in setting the maximum term of confinement

. The Attorney General concedes
the maximum te rm of confinement should be reduced. We shall reduce the maximum

term of confinement to seven years eight months and otherwise affirm.2 FACTUAL AND PROCE D URAL BACKGROUND
Th is minor is the subject of five separate petitions. On November 30, 2017, the District Attorney of Shasta County filed the first petition pursuant to Welfare and Institutions Code section 602, subdivision (a)

. 1 The petition alleged one count of
vandalism (Pen. Code, § 594, subd. (b)(1)); three counts of resisting, obstructing , or delaying a peace officer in the performance of his or her duties (Pen. Code, § 148,
subd. (a)(1)); and one count of petty theft (Pen. Code, §§ 484, subd. (a), 488).
In the firs t i ncident , the minor kicked the inside of the patrol car and spit all over
it . In a second unrelated incident, the minor tried to steal a n MP 4 player from a store

. The minor admitted the vandalism as a misdemeanor and one count of resisting, obstructing , or delaying a peace officer in the performance of his or her duties. The juvenile court declared the minor a ward of the court and placed him on probation with three days ’ custody in juvenile hall with three days ’ credit for time served. On April 26, 2018, the d istrict a ttorney filed a second petition. This petition alleged one count of vandalism (Pen. Code, § 594, subd. (b)(1)) ; and three counts of resisting, obstructing , or delaying a peace officer in the perfor mance of his or her duties (Pen. Code, § 148, subd. (a)(1)). The petition also alleged the minor should be placed in a more restrictive placement pursuant to section 777, subdivision (a). This time, a fter attending a counseling appointment, the minor star ted punching the dashboard of his mother’s car and damag ing it

. The mother brought him to the probation department. When he got out of the car under the control of one probation officer, he tried to punch a nother probation officer.
The minor admitted one count of vandalism as a misdemeanor and one count of resisting, obstructing , or delaying a peace officer in the performance of his or her duties,

1 Further undesignated statutory references are to the Welfare and Institutions Code. The remaining petitions were similarly filed under section 602, subdivision (a).3

and admitted he should be placed in a more restrictive placement. The court continued

t he minor as a ward of the court and ordered him to serve 21 days in juvenile hall with credit for 21 days served. On September 28, 2018, the d istrict a ttorney filed a third petition. T his petition alleged one count of assault with a deadly weapon on a peace officer (Pen. Code , § 245, subd. (c)) ; one count of making a criminal threat (Pen. Code, § 422) ; and one count of resisting, obstructing , or delaying a peace officer in the performance of his or her duties (Pen. Code, § 148, subd. (a)(1)). The p etition also alleged the minor should be placed in a more restrictive placement pursuant to section 777, subdivision (a).
In this third case, the minor reported to the probation office to turn in h is monthly
repo rt . The report was filled with profanity and his probation officer r ejected it

. When he sat down with the probation officer to discuss th e report , t he minor threatened to

“ ‘ beat some ass ’ ” and “ ‘ do stuff [ he ] shouldn’t do

. ’ ” The minor then said, “ ‘ I’m gonna fuck you up , ’ ” reached into his pocket, pulled out a foldi ng knife, and flung it open. Officers disarm ed him.
T he minor admitted the charge of assault with a deadly weapon on a probation
officer and the probation violation

. The juvenile court resolved the disposition of this petition c oncurrently with the disposition of the fifth petition, discussed post , with an
order of confinement to the DJJ

. On February 5, 2019, the d istrict a ttorney filed the fourth petition. This petition alleged one count of criminal threats (Pen. Code, § 422 ) ; and one count of vandalism (Pen. Code, § 594, subd. (b)( 2 )). The p etition also alleged the minor should be placed in a more restrictive placement pursuant to section 777, subdivision (a). The petition was amended to allege assault with force likely to cause great bodily injury (Pen. Code, § 245,
subd

. (a)(4)).
Here , the minor armed himself with a pickaxe and attempted to break into a group
home to stab another minor . He was accompani ed by an accomplice armed with a4

sharpened two

- foot wooden rake handle

. When refused entry by staff, the minor hit the
front door with his pickaxe penetrat ing the door. Staff disarm ed the minor but he continued to walk around the group home with his acco mplice banging on the windows , trying to get in , and frightening the residents

. The minor admitted the assault, the vandalism, the probation violation, and that he should be placed in a more restrictive placement. The juvenile court dismissed the remaining charg e

. The court continued the minor as a ward of the court and granted him probation with a suitable group home placement . He was placed in a residential therapeutic program , in which he was enrolled when he comm itted his next criminal act.
The fifth petition was filed in Stanislaus County on August 1 1 , 2020, a nd
transferred to Shasta County . This petition alleged one count of robbery (Pen. Code, § 211) and was amended to add a count of assault with force likely to cause bodily injury (Pen. Cod e , § 245, subd. (a)(4) )

. T he minor and an accomplice absconded from t he ir residential treatment home

. T hey saw a man and asked him if he had any drugs for sale. When the victim said,

“ ‘ N o, ’ ” the minor’s accomplice responded , “ ‘ Ok, I’m go nna rob you. ’ ” While the accomplice f ou ght with the victim, the minor kicked the victim , grabbed his cellular phone, wallet, and bag and ran off.
T he minor admitted the assault. Over the time covered by the se cases, th e juvenile court received reports from the probation officer concerning the behavior of the minor while he was in the Shasta County Juvenile Rehabilitation Facility (JRF) and in his group home

. The early not e s were positive with reports the minor was resp ectful to staff and peers. As time went on , the minor’s behavior became increasingly poor. The minor had issues getting along with
other residents , sexually harassed female residents , threatened other residents , and disrespected staff. He fought with an d threatened other residents, threw food, was disrespectful to staff, and w as found with metal, a shank, and other contraband. He also5

repeatedly c al led his father and left hateful and threatening messages. In the few weeks prior to his final disposition hearing, t he minor engaged in much better behavior. In 2021, t he Shasta County J uvenile C ourt held a contested dispositional hearing on the third and fifth petitions. T he prosecution presented testimony and documentary
evidence of the programs and services available at DJJ. These programs included high school and college courses of study ; intake processes to determine the minor’s mental health, education , and programming needs ; anger management and career and technical
education programs ; substance abuse programs ; and mental health placement and
intensive mental health treatment. The minor presented evidence about a program c al led Jordan Cr o ssing

. Th is is a
faith

- based facility that requires its residents to commit for one year and is primarily
foc used on substance abuse treatment . It also has a component of anger management (through teleclasses with another provider), job skill training , and communications skill training. Unlike DJJ, Jordan Crossing is not a lockdown facility, d oes not have in

- house
mental health treatment programs , nor d oes i t have any way to enforce its one

- year confinement protocol

. More than 50 percent of the residents who start the program never complete it. The minor also presented documentary evidence questioning th e efficacy of
DJJ. The minor presented the testimony of a clinical psychologist who interviewed the minor for the disposition hearing. The psychologist agreed the minor needed anger management therapy. He believed the minor’s behavior al issues were secon darily , not primarily, influenced by his substance abuse problems . The psychologist was generally aware of DJJ’s mental health services and believed they were appropriate for what they provide

. He also believed there was a problem in placing the minor at Jordan Crossing because they did not have in

- house mental health services. At the same time, h e expressed concern DJJ may not be the best option for the minor and believed Jordan Crossing would be more beneficial than incarceration

.6

T he prosecution argue d the juvenile court should commit the minor to the DJJ and
the minor argued for confinement to th e Jordan’s Crossing program. Probation originally recommended the DJJ confinement , but after the disposition hearing, it changed its recommendation to state i t was not opposed to a grant of probation
with a confinement of two years six months to the JRF and discretionary release to a residential treatment facility. In making its decision, the juvenile court sta ted it had observed the minor for the three years p rior to the disposition hearing and found the minor had demonstrated an “explosive temper

. ” T

he juvenile court stated when the minor was in the JRF , his behavior was “just atrocious, months of violent and threatening behaviors, hiding materials to make weapons and things of that nature , and then in the last month or so his behavior has improved markably [ sic ] , but I can’t ignore the prior three years.” W hile

t he juvenile court was impressed with the program ing at Jordan Crossing, the juvenile
court found its focus was on substance abuse, not on the minor’s primary problems of impulse control, anger issues , and violence. Further, the Jordan Crossing progr am had
the additional drawbacks of not hav ing any way to keep the minor there and more than
50 percent of its residents quit. Th us, the juvenile court concluded the Jordan’s Crossing program did not have adequate services to help the minor. The juvenile court also
considered further detention in the JRF, but found the JRF did not have the resources DJJ
ha s and the potential time of confinement was not long enough. As a result, t he juvenile

court committed the minor to the DJJ and set the maximum term of confinement for the sustained petitions at nine years. The juvenile court c al culated th e maximum term of confinement by taking the upper term of the assault on a peace officer count of five years, and adding one

- year consecutive terms ( one

- third the middle term ) for the two other assault counts, eight
months (one

- third the middle term) for a “felony” vandalism count (which the minor admitted as a misdemeanor), and four months each ( one

- third the maximum term ) for the7

remaining two misdemeanor vandalis m counts and the two misdemeanor resisting, obstructing , or delaying a peace officer in the performance of his or her duties counts. The minor timely appeal ed

. DISCUSSION
The minor contends the trial court erred in committing him to DJJ and err ed in
setti ng the maximum term of confinement. The Attorney General concedes the maximum term of confinement is wrongly c al culated.
A. Confinement to DJJ The minor argues the trial court abused its discretion in committing him to DJJ because there was no substantial evidence a less restrictive option would be ineffective or inappropriate. We disagree. Minors under the juvenile court ’ s jurisdiction must rec eive “care, treatment, and guidance consistent with their best interest and the best interest of the public.” (§ 202, subd. (b).) “ Under section 202, juvenile proceedings are primarily ‘ rehabilitative ’ ( id. , subd. (b)), and punishment in the form of ‘ ret ribution ’ is disallowed ( id. , subd. (e)). Within 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

. ( I d. , su bd. (e)

. ) ” (

In re Eddie M. (2003) 31 Cal.4th 480, 507.) “We review the [juvenile] court ’ s placement decision for an abuse of discretion. [Citation.] We review the court ’ s findings for substantial evidence, and ‘ “[a] trial court
abuses its discretion wh en the factual findings critical to its decision find no support in the evidence.” ’ ” (

In re Nicole H. (2016) 244 Cal .App.4th 1150, 1154.) In making this determination, we indulg e in “ all reasonable inferences to support the juvenile court ’ s decision. [Citations.] Nonetheless, 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 Ange la M. (2003)
111 Cal .App.4th 1392, 1396.) A juvenile court does not “ necessarily abuse its discretion8

by ordering the most restrictive placement before other options have been tried. [Citations.]” (

In re Eddie M. , supra , 31 Cal .4th at p. 507.)
Substanti al evidence supports the juvenile court’s finding the DJJ commitment offered the minor a probable benefit. Consistent with In re Carlos J. ( 2018)
22 Cal .App. 5 th 1, 10, the juvenile court received evidence of the programs and services
available to this min or before ordering his placement in that facility. Further, the juvenile
court understood the needs of this minor based on the evidence and the five petitions it had adjudicated over the prior three years. The evidence demonstrated the DJJ
commitment off ered in

- house mental health placement and services that addressed his
needs

. The DJJ placement further offered a broad range of in

- house services and programs for the minor: high school and college education, career and technical
education programs, anger management, and substance abuse programs. Contrasted with
th e DJJ commitment , the Jordan Crossing program only offered mental health therapy through its community and county partners. Its focus on substance abuse recovery did

not address the minor’s major issue s centered on anger and violence

. Further, the record demonstrates the juvenile court considered less restrictive
alternatives and found them ineffective or inappropriate. S ubstantial evidence support s th i s determination. T

he Jorda n Crossing program was inappropriate because it was not a
lockdown facility n or did the program have the ability to enforce its one

- year commitment to keep its residents. Th e minor demonstrated a penchant to leave his placement and commit crimes . In the fourth petition, h e was in a group home when he
tried to attack a nother resident of the group home with a pickaxe. In the fifth petition, t he
minor was in a group home and left that placement to commit the assault. Jordan Crossing did not have in

- house m ental care facilities which was a problem as admitted by the minor’s own witness. The anger management courses were only available by teleclasses through another outside provider.9

Further, the record supports the finding the se less restrictive alternatives, particularly his JRF placements, were ineffective as evidenced by the reports of the minor’s repeated rules violations, bouts of anger , violence , and lack of impulse control

. The record inc luded repeated reports the minor violated the rules on contraband and
weapons , and engaged in repeated instances of disrespectful, violent , and harassing
interactions with staff and other residents , while at the JRF

. Further, any commitment to
JRF lacked the length of the term of confinement the court believed was appropriate for this minor. As conceded by the minor, at the time of his disposition the juvenile hall commitment was limited to three years. (§ 607, subd. (a).) Based on this record , the juve nile court did not abuse its discretion to find th e se less restrictive alternative s w ere not appropriate

. S ubstantial evidence also supports the trial court’s finding the less restrictive
alternatives were not effective for this minor due to his extended p attern of misbehavior while in these placements

. T he minor ’s criminal record stretche s through five petitions

over a period of three years while he was placed in less restrictive alternatives

. Every
time the court granted him probation, he violated it. While he was in these less restrictive alternatives, his offenses escalated, from stealing , and kicking and spitting in the interior
of a police car, to pulling a knife on a probation officer , to pounding a door with a pickaxe as part of his attempt to hurt a resident , and ultimately to an assault as part of a robbery

. Th is progression of violence demonstrate s the juvenile court ’s repeated attempt s to use less restrictive alternatives were ineffective

. The minor argues the impr ovement of his behavior in the several weeks prior to his final disposition hearing is material and further argues no substantial evidence shows this change in behavior was illusory, unsustainable, or false . We conclude the juvenile
court did not abuse it s discretion in finding the recent six

- week turnaround of his misbehavior was insufficient to overcome the persuasive weight of his prior years of
misbehavior chronicled by this case

.10

The minor argues I

n re Miguel C . (2021) 69 Cal .App.5th 899 compels us to

revers e his commitment to DJJ. We disagree. In that case, the minor presented evidence of his prior unblemished record and the single violent crime brought about by his
substance abuse that was before the juvenile court . ( Id. at p. 90 4 .) He also presented evidence that commitment to a higher level security environment like the DJJ might put his rehabilitative chances at risk by exposing him to a culture filled with drugs, violence , and a social structure revolving around gang affiliation. ( Id at p. 905

. ) In contrast, t he prosecution presented no witnesses and relied solely on the probation report concluding

t he minor was at high risk for recidivism . ( Ibid. ) In reversing this commitment, t he appellate court concluded , “ where a minor pres ents evidence suggesting that a DJJ placement would be harmful for reasons specific to the minor, the [prosecution] must provide some contrary evidence that would enable the juvenile court to make a comparative analysis of the placement options before it c oncludes the minor will probably benefit from DJJ, and that less restrictive options would be ineffective or inappropriate. ” (

Id. at p. 902 , italics omitted .) Here, this minor did not come to th e juvenile court as a minor with a single
incident on an otherwise un t arnished record. This disposition hearing was on his fifth petition in three years of increasing ly violent behavior with three years of documented
bad behavior while he was in detention. He did not present evidence the DJJ placement would be harmful for any reasons specific to him. And t he prosecution presented evidence of the programs and services available to him at DJJ. The minor’s final argument is the juvenile court failed to con sider the Legislative intent underlying Senate Bill No. 823 (2019

- 2020 Reg. Sess. ) (Stats

. 2020 , ch. 337) , which will ultimately close DJJ and transfer minors back to local facilities. At the disposition hearing, t he trial court heard testimony DJJ would stop taking new wards as of July 1, 2021 , under this law. At the time of this hearing in March 2021, however, DJJ
was not closed. For those wards properly admitted, the court heard evidence that DJJ11

would provide ongoing treatment and mental health servi ces for wards for the full term of
their commitment

. We conclude t he juvenile court’s determination the DJJ placement was appropriate
for this minor was not an abuse of discretion.
B. Maximum Term of Confinement The minor argues the trial court improperly use d the upper term of five years on the assault on a peace officer to set the maximum term of confinement instead of four
years and mistakenly treated one of the vandalism counts as a felony

. T he Attorney
General properly concedes both points. We agree. Section 731, subd ivision ( b ) provide s the juvenile court “ shall not commit a ward to the Division of Juvenile Justice for a period that exceeds the middle term of imprisonment that could be imposed upon an adult convicted of the same offense. ” Here, the juvenile court selected the upper term of five years for the assault on a peace officer instead of the middle term of four years in setting the maximum term of confinement. That provision carries with it the sentencing triad of three, four, or f ive years. (Pen. Code, § 245, subd. (c)

. ) W e will order the maximum term of co nfine ment reduced by one year to four years

. Further, when determining the total time of confinement , the juvenile court must add one

- third of the one

- year term for subordinate misdemeanor counts to the principal

term . ( In re Deborah C

. (1981) 30 Cal .3d 125, 140.) T he juvenile court mistakenly
found the defendant’s admission to one of the misdemeanor vandalism counts was as a felony and added eight months instead of four. T his was error and we will order it
corrected

. DISPOSITION The judgment is modified to reflect a maximum confinement time of seven years eight months . A s modified, the judgment is affirmed. The juvenile court is directed to prepare an amended DJJ commitment order consistent with the modified judgment, to12

forward the amended order to the appropriate authorities, and to amend other court
records as necessa ry to reflect the modified judgment.

/s/ HOCH , J.

We concur:

/s/ MAURO, Acting P. J.

/s/ RENNER , J.