PEOPLE v. JONES (1986)

Raymond Juan Brooks, Timothy Jones and Arnell Williams appeal their guilty plea convictions solely on grounds of sentencing errors.

I

Brooks, Jones and Williams were charged in a 25-count information arising out of separate incidents involving burglary and robbery of inhabited dwellings (Pen.Code,2 §§ 459, 211, 213.5), rape in concert (§§ 261, subd. (2) and 264.1), sodomy in concert (§ 286, subd. (d)), oral copulation in concert (§ 288a, subd. (d)), penetration by a foreign object (§§ 289, subd. (a) and 264.1), and vehicle theft (Veh.Code, § 10851).   Most of the counts also alleged arming with a firearm (§§ 12022, subd. (a) and 12022.3, subd. (b)) and the sodomy and penetration by a foreign object counts alleged great bodily injury (§ 12022.8).

Brooks, 17 years old at the time of the offenses, pleaded guilty August 20, 1984, to one count of forcible rape in concert (count four) while armed with a firearm and one count of forcible rape involving Elizabeth C. (count five), and one count of residential robbery involving Davina B. (count sixteen).   Pursuant to a plea bargain the remaining counts and allegations were dismissed.   Brooks gave a Harvey waiver as to the other dismissed Elizabeth C. and Davina B./Robin S. offenses (People v. Harvey (1979) 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396).   After a California Youth Authority (CYA) diagnostic study under Welfare and Institutions Code section 707.2, Judge Barbara T. Gamer sentenced Brooks February 1, 1985, to prison for 23 years.

Jones, also 17 years old at the time of the crimes, pleaded guilty August 29, 1984, to one residential robbery (count two) and one forcible rape in concert (count four) while armed with a firearm involving Elizabeth C.   Under his plea bargain, Jones made a Harvey waiver as to other dismissed counts involving Elizabeth C., and the People dismissed the remaining counts and allegations.   Judge Ben W. Hamrick sentenced Jones February 5, 1985, to 17 years in prison after rejecting a CYA amenability determination.

Williams, 16 years old at the time of the incidents, pleaded guilty August 30, 1984, to one count of forcible rape in concert (count four) and one count of forcible rape involving Elizabeth C. (count five), and one count of residential robbery involving Davina B. (count sixteen).   Under his plea bargain, Williams gave a Harvey waiver as to the other dismissed Elizabeth C. and Davina B./Robin S. incidents and the People dismissed the remaining counts and struck the firearm allegations.   Judge Hamrick sentenced Williams February 5, 1985, to 23 years in prison after also rejecting his CYA amenability determination.

On appeal, Brooks contends Judge Gamer failed to state appropriate reasons to justify consecutive sentencing on the Elizabeth C. rape counts and her imposing full-consecutive terms under section 667.6, subdivision (c), and failed to consider all the required factors under Welfare and Institutions Code section 707.2 before sentencing him to prison.

Jones' and Williams' appeals focus on Judge Hamrick's refusal to follow the CYA recommendations they be committed to the Youth Authority.   Jones additionally contends Judge Hamrick aggravated his terms based on improper factors and dual used facts to both aggravate and impose consecutive terms.   We affirm Brooks' and Williams' judgments and reverse Jones' judgment for sentencing error only.

II

As each conviction is based on a guilty plea, we briefly state the facts deduced from the probation reports and preliminary hearing transcripts.

A.

Brooks and Williams pleaded guilty to the residential robbery of Davina B. on January 22, 1984.   At approximately 11:45 p.m. that night, Davina B., alone in her home, responded to a knock at her door.   Thinking it was her roommate, Davina B. opened the door.   Three black men barged in.   One pointed a large black revolver at Davina B. and ordered her to lie down and cover her face.   The intruders then checked the other rooms and asked for drugs and money.   They obtained bandanas and socks from B.'s bedroom to cover their faces and hands.   The three men drank beer and other alcoholic beverages while ransacking her house.

As Davina B. was on the couch one of the men approached her, unbuttoned his pants, exposed his penis and told her to get down on her knees and “put you mouth on this.”   She refused.   He hit her in the face with the gun.   Davina B. became nervous, began to hyperventilate and vomited.

The man with the gun told her he was in control and opened the cylinder of the gun and removed the bullets.   Another man later identified as Williams told her not to relax too much as he still had a knife.   They had Davina B. telephone her roommate to come home.

Robin S. returned home around 1:00 a.m.   Robin S. was confronted by a man with a gun who ordered her to the floor before having her sit with Davina B. on the couch.   All three men had bandanas over their faces.   Robin S. was accompanied to the bathroom by one of the men.   Outside the bathroom he unbuttoned his pants, removed his penis, and forced it toward Robin S.   She told him he'd have to shoot her first.   After leaving the bathroom Robin S. was taken to a bedroom where her hands were tied behind her with a belt and her car keys were taken.   Davina B. was directed to another room where she was tied up with a handkerchief.

The men loaded the items taken from Davina B.'s residence into the 1980 Dodge pickup Robin S. had been driving.   They took a video cassette recorder (VCR), turntable, tape deck, receiver and record albums.   The vehicle was later found to belong to Sonya Shelton.

B.

Brooks, Williams and Jones each pleaded guilty to various crimes committed against the C. family two nights later, January 24, 1984.   At approximately 1:40 a.m., Ricardo and Elizabeth C. were awakened by a knock and voice saying “Don't move and don't make a sound.”   Elizabeth saw one black man with pantyhose over his face holding a long-barrelled, white-handled gun and heard other intruders.   Ricardo saw three black men with stocking masks, two with guns:  one a large black revolver with a six-inch barrel and white pistol grip.   Elizabeth and Ricardo were ordered to lie face down on the floor, Ricardo was taken to an empty bedroom, tied up and left.   A gold chain and yellow gold band were removed from Elizabeth and she was ordered into the master bedroom.   There she was forced to orally copulate one man;  covered with a pillow and held down while the five intruders forcibly raped her.   At least three of the men also sodomized her.   She could not be certain if all five committed acts of sodomy as she lost consciousness at least once during the sodomy.   One of the men inserted the barrel of a handgun into her anus during the sexual assaults which resulted in a rectal tear requiring hospital treatment.   Elizabeth was then tied up with a phone cord and belt and gagged.

The intruders then ransacked the C. residence, taking a reel to reel tape player, turntable, speakers, telephone and jewelry.   These items were placed in the C.'s 1976 Chevrolet Camaro which was also stolen.   C.'s three-year-old son was left asleep on the couch unharmed.

On February 1, 1984, an anonymous informant contacted the San Diego Police Department Special Investigations Unit to report a rape involving a 15-year-old juvenile and Brooks.   Further investigation showed the C. vehicle abandoned one block from Brooks' house.   A search warrant issued and Brooks and the juvenile were picked up.   Each admitted involvement in the C. incident and identified the other participants.   Brooks had in his shirt the gold chain taken from Elizabeth and a gold nugget medallion taken from her home.

Jones and Williams were then picked up from school and questioned.   A search of Williams' home turned up a black BB gun with a six-inch barrel and white hand grips.   Stolen property from the Cruz residence was traced to Glen Tyler who stated he had been given the property by the suspects.   Elizabeth identified Jones in a photographic lineup as the last one to have sex and sodomy with her and the one who kept telling her “spread your legs, bitch;  spread your legs, bitch!”

III

 We first address Brooks' contention Judge Gamer failed to consider four of the five “primary considerations” under Welfare and Institutions Code section 707.2 before sentencing him to prison.   That section states in pertinent part:

“No minor who was under the age of 18 years when he committed any criminal offense and who has been found not a fit and proper subject to be dealt with under the juvenile court law shall be sentenced to the state prison unless he has first been remanded to the custody of the Youth Authority for evaluation and report pursuant to this section.  [¶] The need to protect society, the nature and seriousness of the offense, the interests of justice, the suitability of the minor to the training and treatment offered by the Youth Authority, and the needs of the minor shall be the primary considerations in the court's determination of the appropriate disposition for the minor.”

Being 17 at the time of the offenses, Brooks was sent to CYA for an evaluation and returned to court with an amenability determination which found little likelihood his criminal disposition would be significantly reduced or eliminated within the available confinement and jurisdiction time.   Because Judge Gamer repeated these findings Brooks was not amenable for CYA treatment when she sentenced him to prison, he contends she failed to specifically consider his needs, the needs of society, the nature and seriousness of the offenses or the interests of justice before imposing sentence.

Before sentencing Brooks, however, Judge Gamer read the probation report, the supplemental probation report, the statements in mitigation and aggravation, a report submitted by Dr. Philip Solomon, the materials sent to the court under Welfare and Institutions Code section 707.2, and heard argument on all five factors under section 707.2.   She then stated she considered all documents and arguments in reaching her decision Brooks should be sentenced to prison.   Further specificity is not required where the record, as here, shows the judge properly considered all factors and nothing in the record reflects any differing result on remand.  (Cal. Rules of Court, rule 409;  People v. Dozier (1979) 90 Cal.App.3d 174, 179, 153 Cal.Rptr. 53.)

IV 3

V

We next address Jones' and Williams' common contention Judge Hamrick abused his discretion in denying CYA commitment.   Jones and Williams argue the judge placed inadequate emphasis on the recommendation of the amenability determination and undue emphasis on the need to protect society, the nature and seriousness of the offense, and the interests of justice.   Both rely on cases involving crimes committed before the amendment of section 707.2 ⁴ which held CYA's recommendation is entitled to great weight and should be followed absent substantial countervailing considerations supporting a finding the juvenile is unsuitable to the training and treatment offered by the Youth Authority.  (People v. Javier A. (1985) 38 Cal.3d 811, 215 Cal.Rptr. 242, 700 P.2d 1244;  People v. Carl B. (1979) 24 Cal.3d 212, 155 Cal.Rptr. 189, 594 P.2d 14.)   Both also refer us to our decision in People v. Fields (1984) 159 Cal.App.3d 555, 205 Cal.Rptr. 888, which purportedly dealt with a case under the 1982 amendment to section 707.2.⁵

 We agree with the result in Fields and its recognition that:

“As amended, Welfare and Institutions Code section 707.2 specifically directs the court to consider the nature and seriousness of the offense and implicitly allows the court to consider the CYA's parole policies pursuant to the protection of society or interests of justice criteria.   Moreover, the amendment also appears to alter the weight given to the CYA's recommendation of amenability since the court is no longer required to make a specific finding ‘the minor is not a suitable subject for commitment to the Youth Authority,’ but rather is to consider the amenability recommendation as one of several ‘primary considerations in the court's determination of the appropriate disposition of the minor.’ ”  (People v. Fields, supra, 159 Cal.App.3d at p. 567, 205 Cal.Rptr. 888.)

However, in light of People v. Javier A., supra, 38 Cal.3d 811 at p. 815, footnote 1, 215 Cal.Rptr. 242, 700 P.2d 1244, we go one step further.   Fields, while recognizing the additional factors were also considerations, still gave the CYA recommendation primary weight over the other factors and stressed the standard derived from People v. Carl B., supra, 24 Cal.3d 212, 156 Cal.Rptr. 189, 594 P.2d 14, concerning a defendant's ability to benefit from CYA treatment programs.  (People v. Fields, supra, 159 Cal.App.3d at pp. 568–569, 205 Cal.Rptr. 888.)   We find the amendment to section 707.2 altered the weight given to a CYA recommendation so that it is only one of five factors to be weighed when considering commitment of minor offenders.  “[T]he apparent purpose of the amendment is to avoid any implication derived from People v. Carl B. [supra] 24 Cal.3d 212, 156 Cal.Rptr. 189, 594 P.2d 14 ․ that defendant's ability to benefit from the treatment programs of the Youth Authority is the only relevant consideration in determining disposition.”  (People v. Javier A., supra, 38 Cal.3d 811 at p. 815, fn. 1, 215 Cal.Rptr. 242, 700 P.2d 1244.)

 The issue thus becomes whether Judge Hamrick abused his discretion in reviewing and weighing all five factors.   Because section 707.2 does not assign any particular weight to each factor, absent a clear showing the weighing process was arbitrary or irrational, and not supported by the record, we do not disturb the trial court's exercise of its discretion in weighing those factors.

In sentencing Jones, Judge Hamrick noted the CYA evaluation only concerned two of the five factors necessary under section 707.2:  the suitability of the defendant to the training programs at CYA and the needs of the defendant.   He then proceeded to review the nature and seriousness of the crimes against the Cruz family, the need to protect society from such crimes, and the interests of justice.   Although acknowledging the need to give considerable weight to the CYA's recommendation, Judge Hamrick was “skeptical of the soundness of the diagnostic study recommendation, the methodology of its preparation and the reliability of information on which it was based.”  (People v. Marling (1981) 116 Cal.App.3d 284, 287, 172 Cal.Rptr. 109.)

Judge Hamrick specifically noted:

“[Jones] was found to be a seriously delinquent young man with antisocial traits in his personality.   Motive for change was assessed as superficial.   And although he exhibited remorse and accepted some responsibility, the degree of his sincerity was questionable.

“[Case work specialist Maureen Cudahy] found him not to be completely honest in discussing certain matters such as drugs․  She feels that his so-called pleasant demeanor is a facade which could be overlooked in the rehabilitative program in so far as trying to truly achieve any change in his criminal behavior.

“And her closing comments I think are significant when she says, ‘On the other hand, his statements seem somewhat superficial and at times he was less than honest during the interview.   In order for a change to take place the facade must be broken through and he must learn to really face and accept responsibility for what he's done.   This will be a long and difficult task.’

“The concluding remarks of the staff psychologist are also negative and somewhat—not somewhat, but take on, I think, significant importance in any question of the ultimate recommendation, wherein it is stated:

“ ‘It is felt that he represents an elevated potential for aggressive acting out.   It is felt that a personality disorder is evidence with antisocial tendencies.   His anxiety he is experiencing is based on his own self-centered needs and the fear of going to prison.   In essence, this ward demonstrated superficial motivation for change and I see him as self-serving.’

“As I stated before, I think that if you pull out some of those remarks from the people that met with Mr. Jones at C.Y.A. and you compare them side by side to the recommendation, you should have a reasonable question in your mind as to whether the recommendation is well founded.”

The court then found the “factors involving protecting society, punishing serious criminal behavior and the interests of justice far outweigh the factors involving [Jones'] suitability for training programs at C.Y.A. and [his] particular needs.”

When later sentencing Williams, Judge Hamrick reiterated the same misgivings with the CYA evaluation for Williams as for Jones.   He noted Williams' involvement in the crimes was even greater than Jones' and his prognosis to amenability to CYA treatment more guarded.

Judge Hamrick stated:

“In the evaluation which was prepared [Williams] is found to be seriously delinquent and to minimize and deny his delinquent behavior and to lack remorse or empathy for his victims.

“The case work specialist found him to be a very angry young man who is not in touch with his anger.   He's remorseless, lacking in empathy, only exhibiting negative feelings regarding the incident ․ and the disastrous consequences that he foresees for himself.   For this reason her evaluation of his prognosis is guarded.

“The psychologist found the defendant to be antisocially oriented.   Strong anger and deep depression was noted.   And he states on the third page motivation for change in face of the subject's massive denial was seen as superficial and little remorse or empathy was exhibited for the victims;  therefore, his prognosis for rehabilitation was guarded.

“The psychiatric evaluation found the subject to be superficial and depressed secondary to incarceration.   In summary he was found unremorseful and superficial in his motivation for change.

“And after all of those negative comments comes up with a conclusion:  ‘Therefore, despite the denial it is quite possible, if not probable, that with intensive intervention the subject could be worked with.   It is recommended that, should the subject be returned to the Youth Authority and not respond to treatment, that he be returned to the court for resentencing under section 1737.1 of the Welfare and Institutions Code.’

“․

“ ‘In summary, this is a depressed and angry young man.   Unfortunately these feelings are related to his incarceration and resulting loss of self-esteem rather than to any feelings about what he did to the victims.   This self-centered attitude is the strongest inhibitor of his rehabilitation.’ ”

After considering all the relevant factors he again found the crimes so serious and the need for society to be protected so great that the interests of justice required a prison sentence and outweighed Williams' need or suitability for training at CYA.

Jones and Williams, however, strongly contend Fields requires more than the court's disbelief of credibility of CYA experts' opinions to disregard the amenability recommendations.   They construe Fields as requiring the probation department in every case to present independent “clinical or psychiatric foundation” evidence to negate a CYA finding of suitability for treatment before the court can properly sentence a defendant to prison.   (People v. Fields, supra, 159 Cal.App.3d 555 at p. 569, 205 Cal.Rptr. 888.)   Jones and Williams read Fields too broadly.   As discussed below, Fields should be limited to its facts.

 In reviewing the amenability recommendation under Welfare and Institutions Code section 707.2, “whenever the trial court rejects the recommendation of the Youth Authority that a defendant be placed in its facilities, we must examine the record to determine if there is in fact substantial evidence of countervailing considerations of sufficient weight to overcome the recommendation.”  (People v. Javier A., supra, 38 Cal.3d 811 at p. 819, 215 Cal.Rptr. 242, 700 P.2d 1244, emphasis added.)   Just what sufficient countervailing considerations are will be determined by the circumstances in each case.

 In Fields, “clinical or psychiatric foundation” evidence was necessary to sufficiently counter the four psychological evaluations of Fields finding him amenable to treatment and recommending CYA commitment.   Here, only one psychological evaluation was done for each defendant.   Because of the inconsistencies within each amenability recommendation, other individualized considerations in the record appropriate under Carl B., i.e., circumstances of the crime and history of each defendant, were sufficient to overcome the CYA amenability placement recommendation.  (See People v. Javier A., supra, 38 Cal.3d 811 at pp. 818–819, 215 Cal.Rptr. 242, 700 P.2d 1244.)

As noted earlier, contrary to Fields, the crimes here were committed after the effective date of the amendment of Welfare and Institutions Code section 707.2.   The CYA amenability recommendation was thus only one of several factors in the court's determination of the appropriate disposition of Jones and Williams.   Based on the entire record, the evidence fully supports Judge Hamrick's conclusions the CYA recommendations were outweighed by the other factors.   There was no abuse of discretion.⁶

VI 7

VII

Brooks' and Williams' judgments are affirmed.   Jones' judgment is reversed for sentencing error only in accordance with the principles expressed herein.⁸

FOOTNOTES

FN2. All statutory references are to the Penal Code unless otherwise specified..  FN2. All statutory references are to the Penal Code unless otherwise specified.

3.   See footnote *, ante.

4.   Section 707.2 then read in pertinent part:“No minor who was under the age of 18 years when he committed any criminal offense and who has been found not a fit and proper subject to be dealt with under the juvenile court law shall be sentenced to the state prison unless he has first been remanded to the custody of the California Youth Authority for evaluation and report pursuant to this section and the court finds after having read and considered the report submitted by the Youth Authority that the minor is not a suitable subject for commitment to the Youth Authority.”

5.   Fields concerned a crime committed in August 1982, four months before the effective date of the amended section 707.2.

6.   The court recommended both Jones and Williams be housed at CYA under section 1731.5, subdivision (c), so the Youth Authority, if it accepted them, could work with them during their initial period of incarceration to try to motivate rehabilitation and change.  (See People v. Crenshaw and Oryall (1986) 177 Cal.App.3d 259, 222 Cal.Rptr. 824 [86 L.A.Daily J.D.A.R. 500].)

7.   See footnote *, ante.

8.   We decline Jones' invitation to order sentencing before a different judge.  (People v. Swanson (1983) 140 Cal.App.3d 571, 574.)   We are confident Judge Hamrick will resentence Jones based solely on the proper criteria.

BUTLER, Associate Justice.

WORK, Acting P.J., and LEWIS, J., concur.