IN RE: CARLOS M.

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Court of Appeal, Second District, Division 4, California.

IN RE: CARLOS M., A Person Coming Under the Juvenile Court Law. The PEOPLE of the State of California, Plaintiff and Respondent, v. CARLOS M., Defendant and Appellant.

44328.

Decided: November 18, 1983

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Monica Knox, Deputy State Public Defender, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Norman H. Sokolow and Gregory W. Alarcon, Deputy Attys. Gen., for plaintiff and respondent.

Carlos M., a minor, appeals the court's orders continuing him as a ward of the juvenile court (Welf. & Inst.Code, § 602) and committing him to Youth Authority after finding he committed an assault by means of force likely to produce great bodily injury (Pen.Code, § 245, subd. (a)).  He contends:  “The court abused its discretion in committing appellant to the California Youth Authority.”

The evidence at the adjudication hearing, viewed in the light most favorable to the court's order (In re Dennis B. (1976) 18 Cal.3d 687, 697, 135 Cal.Rptr. 82, 557 P.2d 514), established that on January 15, 1982, at approximately 3:45 a.m., Joe Avalos was driving home alone in Whittier when his Chevrolet vehicle was hit from behind and forced to the right curb by a Ford LTD vehicle.   Avalos' vehicle stalled.   He stepped from the Chevrolet in an attempt to restart it and was confronted by appellant and the Ford LTD's three youthful occupants, who, without any provocation, beat, kicked and hit Avalos with fists, feet, and a tire iron until Avalos lost consciousness.   When Avalos awoke, appellant had disappeared, but another of the youths was wielding the tire iron, smashing his vehicle's windows.   The remaining three youths then left the area in the Ford LTD.   Avalos suffered extensive head injuries and a permanent injury to his eye.

At the disposition hearing, the court read and considered the probation report which indicated the January 15, 1983 incident was gang-related.   As recently as November of 1982, the 17-year-old appellant had been placed home on probation following findings in two petitions that he was involved in an altercation with police (Pen.Code, § 415.1) and committed a $1,000 market burglary in the company of several gang companions (Pen.Code, § 459).1  At that time, the appellant's probation officer had told the appellant and his parents that any further law violation would, in all probability, result in a probation recommendation for a commitment to Youth Authority.   The probation officer further noted the appellant was now in violation of the earlier probationary grants in that he had sustained a new criminal offense, had associated with a gang companion specified in the probation order, and had been absent from his parents' home without their permission.

In her report and at the disposition hearing, the appellant's probation officer, Nancy Douglas, recommended a Youth Authority commitment since the Youth Authority offered the appellant the opportunity to complete his education and to obtain vocational training and the appellant was too sophisticated to benefit from the other available less restrictive commitments, had demonstrated his inability to function properly under the direction of the probation department, and had committed an offense of a serious nature.   She described the Youth Authority's parole supervision as superior to the after-care program following a camp commitment.

After a full hearing the court continued the appellant as a court ward, and ordered the Youth Authority commitment.   The court expressly rejected the appellant's assertion the more appropriate disposition was a long-term camp commitment because the appellant would become an adult before the date of his camp release.   The only hesitation the court voiced in making the commitment was that it found the appellant was not so “heavily” gang-involved as the police and probation department believed and by making such a commitment the court ran the risk the appellant would be further “contaminated” by exposure to the hard-core gang element found in the Youth Authority.   While the court emphasized it was influenced by the seriousness of the appellant's participation in an unprovoked vicious retaliatory-type attack upon the victim, it expressly stated it was making its order based on the totality of the factors properly before it at disposition:  “But in balancing everything, taking everything into consideration, it balances towards Youth Authority and that's—that's my feeling.”

Appellant's contention that the court abused its discretion in ordering a Youth Authority commitment is correct.   While the court expressly stated it ordered the commitment based upon all the factors presented to it by the parties at the hearing and upon the information contained within the probation report, factors other than a mere desire to punish the appellant for the seriousness of his offense, (In re Abdul Y. (1982) 130 Cal.App.3d 847, 870, 182 Cal.Rptr. 146;  cf. In re Ricky H. (1981) 30 Cal.3d 176, 183, 178 Cal.Rptr. 324, 636 P.2d 13) it failed to state for the record why it rejected camp placement or any less restrictive placement.   This the court was required to do in order to afford a meaningful appellate review of the dispositional order.  (Cf. In re Ricky H., supra, 30 Cal.3d 176, 184, 178 Cal.Rptr. 324, 636 P.2d 13.)

The order continuing the plaintiff as a ward is affirmed.   The dispositional order is reversed.

FOOTNOTES

1.   The probation report also reflected the appellant's criminal history, consisting of three criminal offenses contacts in which he was counselled and released for a vehicular theft (Pen.Code, § 487, subd. 3) and two offenses of alcohol abuse (Pen.Code, § 647, subd. (f)).

McCLOSKY, Associate Justice.

WOODS, P.J., and KINGSLEY, J., concur.

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