IN RE: LAWNELE J.

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

IN RE: LAWNELE J., a Person Coming Under the Juvenile Court Law. The PEOPLE of the State of California, Plaintiff and Respondent, v. LAWNELE J., Defendant and Appellant.

AO26587.

Decided: January 21, 1986

Linda F. Robertson, Atty. at Law, Burlingame, for defendant and appellant. John K. Van De Kamp, Atty. Gen., Robert R. Granucci, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

Petitioner Lawnele J., a minor (appellant), appeals from an order committing him to the California Youth Authority (CYA).

On the evening of January 11, 1984, Mrs. Misao Inokuma, an 85-year-old woman, was the victim of a robbery as she, together with her daughter, tried to gain entry into her apartment at 25 Western Shore Lane in San Francisco.   The door lock had been tampered with which prevented Mrs. Inokuma and her daughter, Ms. Bokura, from entering the building.   Her assailant, a 15-year-old boy (later identified as appellant), cruelly attacked the elderly woman.   First, he took away her cane, punched her in the face and then yanked her purse with great force and violence causing her to fall onto the ground.   Two police officers, who had been alerted to the crime by Mrs. Inokuma's daughter, pursued appellant, captured him and retrieved her purse from the bushes where appellant had thrown it just prior to his capture.   Appellant was positively identified as the perpetrator of the crime at the scene by Ms. Bokura, the victim's daughter.

Mrs. Inokuma, a slightly built elderly woman (five feet tall and weighing approximately 100 pounds) incurred serious bodily injuries as a consequence of this unprovoked attack.   Her left shoulder was severly fractured causing permanent partial immobility in her arm.   Moreover, her cheekbone was crushed, resulting in permanent disfiguration of her face.

Based upon the above facts a petition was filed in the superior (juvenile) court alleging that appellant was a person described in Welfare and Institutions Code 1 section 602 because he had violated Penal Code section 211 (robbery).   The petition also alleged that appellant had inflicted great bodily injury upon Misao Inokuma, a victim 60 years or older, within the meaning of Penal Code section 1203.09 and that he had intentionally inflicted great bodily injury upon the victim within the meaning of Penal Code section 12022.7.

At the jurisdictional hearing appellant admitted the robbery charge and the elderly victim enhancement allegation;  the great bodily injury allegation was stricken by the court.   Thereafter, at two dispositional hearings extensive testimonial and documentary evidence was introduced.  (See discussion, infra.)   After carefully weighing and evaluating this evidence, the trial court found that the circumstances attending the crime (especially the cruelty and the viciousness of the act) and the best interest of the minor dictated commitment to the CYA 2 for a period not exceeding five years.

Appellant's sole contention on appeal is that by ordering commitment to the CYA the trial court has abused its discretion because its order is not supported by substantial evidence.   In particular, appellant claims that the trial court erred in basing the CYA commitment upon the seriousness of the offense alone and in failing to consider less restrictive alternatives before resorting to the most severe sanction.  (§ 726;  In re Aline D. (1975) 14 Cal.3d 557, 564, 121 Cal.Rptr. 817, 536 P.2d 65.)   We disagree with appellant and affirm the order.

I. AMPLE EVIDENCE SUPPORTS THE CYA DISPOSITION

 It is well settled in California that when a public offense has been committed by a juvenile, certification of the minor to the CYA is within the sound discretion of the committing court.  (§§ 731, 1736;  In re Clarence B. (1974) 37 Cal.App.3d 676, 682, 112 Cal.Rptr. 474.)   The decision of the juvenile court may be reversed on appeal only if the court abused its discretion in committing the minor to the CYA.  (In re Dale S. (1970) 10 Cal.App.3d 952, 957, 89 Cal.Rptr. 499.)   The reviewing court must indulge in all reasonable inferences to support the findings of the juvenile court and such findings will not be disturbed on appeal when there is substantial evidence to support them.  (In re Michael R. (1977) 73 Cal.App.3d 327, 333, 140 Cal.Rptr. 716.)   Finally, in determining whether there was substantial evidence to support the commitment, we must examine the record presented at the disposition hearing in light of the purposes of the Juvenile Court Law.  (§ 200 et seq.;  In re Todd W. (1979) 96 Cal.App.3d 408, 416–417, 157 Cal.Rptr. 802;  In re Carrie W. (1979) 89 Cal.App.3d 642, 152 Cal.Rptr. 690.)

Herein the totality of evidence adduced at the disposition hearings abundantly supports the findings of the trial court and its commitment order.   The record clearly reveals that appellant committed a vicious, unprovoked attack on a vulnerable, elderly lady causing her serious and permanent injuries.   The cruelty of the act was further accentuated by application of violence unnecessary to the commission of the crime—taking away her cane, hitting her in the face, fracturing her cheekbone and ruining her denture and glasses.   Further, there was evidence supporting the conclusion that the crime had been premeditated.   For prior to its commission appellant, together with his companion, had been lurking around the apartment building;  the door lock of the building had been tampered with, denying the victim a speedy access to her apartment.   Moreover, appellant had a prior history of problem behavior (including petty theft and being unruly) evidenced within the short period from November 11 to December 14, 1983.   Appellant's unruly behavior continued after he was taken into custody for the present crime.   During the first 13 days of his custody, he received four write-ups for misbehaving and for violating the internal rules of the youth guidance center where he was held pending disposition.   Based upon the severity of the crime and other important considerations (including the fact that appellant had been expelled from McAteer High School in the Fall of 1983 for possessing alcohol in school;  that he missed classes at Mission High School where he was transferred;  that his grades at school were straight F's;  that he was under the influence of his separated father who was a drug user, etc.), both the screening committee and the probation officer recommended that appellant should be committed to the CYA and that any lesser measure would be inadequate.3  Although the trial court also received and considered evidence recommending less severe sanctions (letter from a retired judge;  letter from the pastor of the church which appellant's grandparents attended;  evaluation and recommendation of the vice-principal of a junior high school, etc.), the record as a whole provides sufficient ground to justify appellant's commitment to CYA.   The court's exercise of discretion in doing so demonstrates no abuse.

II. CYA NEED NOT BE THE “LAST RESORT”

A. Less Restrictive Sanctions Need not First be Considered.

 Appellant's contention that the superior court in committing a 15 year old to CYA on his first appearance ever in juvenile court erred because it should have first considered other less restrictive sanctions, i.e., placement in juvenile hall or ranch school (In re Aline D., supra, 14 Cal.3d 557, 564, 121 Cal.Rptr. 817, 536 P.2d 65;  In re Darryl T. (1978) 81 Cal.App.3d 874, 878, 146 Cal.Rptr. 771;  In re Michael R., supra, 73 Cal.App.3d 327, 333–334, 140 Cal.Rptr. 716), fails for two elementary reasons.   First, the absence of inquiry does not established that the superior court failed to consider other placement.  (In re Ricky H. (1981) 30 Cal.3d 176, 184, 178 Cal.Rptr. 324, 636 P.2d 13.)   And second, despite Aline D. and its progeny contemplating progressively restrictive and punitive series of disposition orders, recent case law repeatedly emphasizes that there is no absolute rule that a Youth Authority commitment should not be ordered unless less restrictive placements have been previously attempted;  the ultimate test of the validity of the commitment order is whether in light of the totality of the circumstances the order is justified.  (In re Ricky H., supra, at p. 183, 178 Cal.Rptr. 324, 636 P.2d 13;  In re John H. (1978) 21 Cal.3d 18, 27, 145 Cal.Rptr. 357, 577 P.2d 177;  In re Robert V. (1982) 132 Cal.App.3d 815, 823, 183 Cal.Rptr. 698;  In re Gregory S. (1978) 85 Cal.App.3d 206, 212, 149 Cal.Rptr. 216;  In re Willy L. (1976) 56 Cal.App.3d 256, 265, 128 Cal.Rptr. 592.)

Appellant's reliance upon Aline D.4 for the proposition that a minor may be committed to CYA “only in the most serious case and only after all else has failed” is very questionable when recent legislative activity is scrutinized.   For since Aline D. was decided in mid-1975, the Legislature has dramatically shifted the focus and purpose of the Arnold-Kennick Juvenile Court Law to inject punishment as a real possibility for those minors who transgress California's penal laws.5  In 1977 the Legislature moved to enact a heretofore overlooked concept concerning the juvenile court law's purposes:  “to protect the public from criminal conduct by minors;  to impose on the minor a sense of responsibility for his or her own acts.”  (See § 202;  Stats.1977, ch. 910, § 1, p. 2782.)   And, seven years later the entire section 6 on the purpose of the Juvenile Court Law was rewritten to further shift its emphasis and to move “to provide for the protection and safety of the public” to the top of the list.  (See Stats.1984, ch. 756, § 2.)   And that same reform also replaced the former purpose of section 202 “to impose on the minor a sense of responsibility for his or her own acts” (Stats.1977, ch. 910, § 1, p. 2782) with the command that delinquent minors “shall, in conformity with the interests of public safety and protection, receive ․ guidance ․, which holds them accountable for their behavior․”  (Stats.1984, ch. 756, § 2, subd. (b).)  And to insure that those involved in juvenile justice correctly decipher the message from Sacramento that it's time to get tough with juvenile criminals, the Legislature spelled out in unequivocal English that “[s]uch guidance may include punishment․”  (Stats.1984, ch. 756, § 2, subd. (e)(5).)   And for those who still might doubt our Legislature's intent, “punishment” was specifically defined as “Commitment of the Minor to the Department of the Youth Authority.”  (Ibid. )  Since Aline D. was decided upon the premise that “Juvenile commitment proceedings are designed for the purposes of rehabilitation and treatment, not punishment” (In re Aline D., supra, 14 Cal.3d at p. 567, 121 Cal.Rptr. 817, 536 P.2d 65), and since the Legislature has just redesigned those purposes to now include punishment, the authority of Aline D. for appellant's position has been effectively vitiated.

B. A CYA Disposition May be Based Solely Upon the Crime.

 Appellant's alternative claim that Youth Authority commitment cannot rest on the seriousness of the offense alone, is also ill-founded.   First, the propriety of a commitment order must be evaluated in light of the juvenile law which considers not only the welfare of the minor, but also the safety and protection of the public.  (§ 202;  In re Todd W., supra, 96 Cal.App.3d at pp. 416–417, 157 Cal.Rptr. 802;  In re Michael R., supra, 73 Cal.App.3d at p. 333, 140 Cal.Rptr. 716.)   It follows that where, as in the instant case, the acts of the minor display a high degree of cruelty and callousness which demonstrate that the juvenile poses a danger to the public, the court is authorized to resort to Youth Authority commitment based upon the nature of the act alone.  (In re John H., supra, 21 Cal.3d 18, 145 Cal.Rptr. 357, 577 P.2d 177;  In re Ricky H., supra, 30 Cal.3d 176, 178 Cal.Rptr. 324, 636 P.2d 13;  In re Jonathan S. (1979) 88 Cal.App.3d 468, 472, 151 Cal.Rptr. 810;  In re Clarence B., supra, 37 Cal.App.3d 676, 112 Cal.Rptr. 474.)

The judgment is affirmed.

FOOTNOTES

FN1. Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code..  FN1. Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.

2.   The court's elocution of disposition reads as follows:  “I have weighed all the factors in this case in trying to reach a just decision, and I do feel that the behavior that was described here involved such great violence and great bodily harm, it frankly discloses a high degree of cruelty and viciousness and callousness, including leaving the lady bleeding on the sidewalk, that it does not appear to me that this is the kind of a case that can be best coped with by a commitment to either the home or our Youth Guidance Center detention facility or Log Cabin.  [¶] It does appear to me that, given all the factors and the utter lack of any circumstantial explanation, either great financial need or immediate precipitating psychological or emotional upset or anything else that I can put my finger on, that this goes to something much deeper and requires counseling of a far more extensive and personal nature than can be given at either of those facilities.  [¶] For this reason, having read the social report and all the documents to which I referred and having listened twice now to the testimony of the victim with a critical ear, and finding her to be credible, I am going to declare wardship in this matter and find that an award of custody to the parents and/or the grandparents, as fine people as they may be and the best that they have tried in this case, would be detrimental to the minor and an award of custody to a non-parent is required to serve his best interests.  [¶] I am fully satisfied, to the extent one can be, that the mental and physical condition of this young man and his qualifications are such as to render it probable that he will be benefited by the reformatory, educational, discipline and other treatment provided by the Youth Authority.”

3.   The probation officer's description of the injuries and her reasons for recommending CYA commitment are especially illuminating:  “On January 11, 1984, Lawnele [J.] decided to snatch a purse from an old woman.   As a result of Lawnele's taking her purse and hitting her in the eye, 85 year old Misao Inokuma sustained a severly fractured left shoulder, a fractured left cheekbone, two blackened eyes, broken glasses and cut inner cheek.   She needs her dentures replaced because they no longer fit her permanently malaligned cheek.   Her face was permanently disfigured as her left cheek is sunken and cannot be repaired without her risking her life under general anesthesia.   She has to live on soft foods and liquids, not only because her dentures don't fit, but also because the inside of her mouth was cut when she fell and because she has pain in her fractured and not repaired cheekbone when she chews.   Mrs. Inokuma has permanently lost the ability to raise her left arm above her shoulder and is in almost constant pain as she has to move around to prevent her lungs from developing pneumonia.  [¶] All this discomfort and agony a diminutive 85 year old woman has to bear because a 15 year old boy thought he would be clever and steal her purse.   Lawnele claims he had no intention of hurting the woman.   That is probably true.   However, the reality is that he has ruined the health of another person, a stranger, in an episode of unprovoked street violence.   This woman will live the rest of her days permanently disfigured.   Each time she looks in the mirror, each time she chews, each time she raises her arm, she will remember this incident.   And, needlessly, an 85 year old woman will live out her life in pain.   If Mrs. Inokuma's life is shortened as a result of her injuries, Lawnele is responsible.  [¶] Had Lawnele merely succeeded in taking another's purse, this Probation Officer would recommend a commitment to Juvenile Hall.   However, as stated above, Lawnele has wantonly ruined the last years of an 85 year old stranger's life, merely because he wanted her money.   Any person who displays such base anti-social behavior should not be allowed to remain on the streets.   Therefore, it is felt that 90 days in Juvenile Hall is far too small a price to pay for his acts and that a commitment to the California Youth Authority is a more appropriate recommendation. ”   (Emphasis added.)

4.   We note further that even were Aline D. controlling, it could not control the disposition here.   For unlike the referee who reluctantly committed Aline to CYA solely because there appeared to be no other suitable placement for her (In re Aline D., supra, 14 Cal.3d at p. 562, 121 Cal.Rptr. 817, 536 P.2d 65) and without any finding as required by section 734, that the court was “fully satisfied” that a CYA commitment probably would benefit the minor, the juvenile court judge herein was fully satisfied that CYA probably would benefit Lawnele.  (See fn. 2, supra.)

5.   Or in the vernacular of those affected by the change:  “if you do the crime, you do the time.”

6.   Section 202 now provides in part:  “(a) The purpose of this chapter is to provide for the protection and safety of the public and each minor under the jurisdiction of the juvenile court and to preserve and strengthen the minor's family ties whenever possible, removing the minor from the custody of his or her parents only when necessary for his or her welfare or for the safety and protection of the public.   When the minor is removed from his or her own family, it is the purpose of this chapter to secure for the minor custody, care, and discipline as nearly as possible equivalent to that which should have been given by his or her parents.   This chapter shall be liberally construed to carry out these purposes.   [¶] (b) Minors under the jurisdiction of the juvenile court who are in need of protective services shall receive care, treatment and guidance consistent with their best interest and the best interest of the public.   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 which is consistent with their best interest, which holds them accountable for their behavior, and which is appropriate for their circumstances.   Such guidance may include punishment that is consistent with the rehabilitative objectives of this chapter.   Juvenile courts and other public agencies charged with enforcing, interpreting and administering the Juvenile Court Law shall consider the safety and protection of the public and the best interest of the minor in all deliberations pursuant to this chapter.”  (Emphasis added.)

ANDERSON, Presiding Justice.

CHANNELL and SABRAW, JJ., concur.

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