Cases and Codes by alicejenny

VIEWS: 3 PAGES: 19

									Filed 11/30/99
                                    CERTIFIED FOR PARTIAL PUBLICATION*

         IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                        SECOND APPELLATE DISTRICT

                                DIVISION THREE


In re IVAN T., a Person Coming Under the            B121155
Juvenile Court Law.
                                                    (Super. Ct. No. KJ11693)

THE PEOPLE,

        Plaintiff and Respondent,

        v.

IVAN T.,

        Defendant and Appellant.




       APPEAL from an order of the Superior Court of Los Angeles County.
Robert Thompson, Judge. Affirmed.
       Joseph T. Tavano, under appointment by the Court of Appeal, for
Defendant and Appellant.
       Daniel E. Lungren and Bill Lockyer, Attorneys General, Robert R.
Anderson, Acting Chief Assistant Attorney General, Carol Wendelin Pollack,
Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy
Attorney General, and David A. Voet, Deputy Attorney General, for Plaintiff and
Respondent.




*Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is
certified for publication with the exception of part III B and C.
                                          I

       The issue in this case is whether a juvenile court may retain jurisdiction

over a minor with regard to an earlier offense when it then determines the minor is

unfit to be dealt with under the juvenile court law for purposes of a subsequent

offense. We find that pursuant to Welfare and Institutions Code section 707.01,

subdivision (a)(1), a juvenile court may retain such jurisdiction.1

       Ivan T. was 14 years old when the juvenile court declared him a ward of the

court and placed him at home on probation by reason of his having committed

voluntary manslaughter. Approximately two years later, the People filed

additional petitions alleging Ivan T. committed assault, robbery and burglary. The

People further alleged Ivan T. was unfit to be dealt with under the juvenile court

law. The juvenile court found Ivan T. an unfit subject for the juvenile court and

ordered the matter transferred to adult criminal court. There, a jury found Ivan T.

guilty of robbery and burglary and the trial court sentenced him to state prison.

Based on Ivan T.’s criminal convictions, the People filed a supplemental petition

alleging he had violated the terms of probation granted in the voluntary

manslaughter case. The juvenile court sustained the allegations, found Ivan T. in
violation of probation and ordered him committed to California Youth Authority

(CYA). Ivan T. appeals from the juvenile court’s order.

       In the published portion of this opinion we rely on section 707.01 to
conclude the juvenile court properly retained jurisdiction over this matter after

having declared Ivan T. unfit to be dealt with under the juvenile court law for

purposes of a later petition. Subdivision (a)(1) of section 707.01 provides that

1      All further statutory references are to the Welfare and Institutions Code
unless otherwise specified.

                                          2
when a minor is found unfit to be dealt with under the juvenile court law, the

juvenile court’s jurisdiction with regard to any previous adjudications which did

not result in commitment to CYA “shall not terminate” unless a proper hearing is

held. No such hearing was held here. We further conclude that, to the extent In re

Dennis J. (1977) 72 Cal.App.3d 755 and In Re Richard C. (1994) 24 Cal.App.4th

966 are inconsistent with section 707.01, the statute supersedes them.

       In the unpublished portion of the opinion, we determine the juvenile court

properly issued a nunc pro tunc order revising a previous order in which it had

terminated its jurisdiction. Since the original order was contrary to law, the

juvenile court could properly correct it. We also conclude the juvenile court’s

determination Ivan T. would benefit from commitment to CYA and that less

restrictive alternatives would be ineffective or inappropriate is supported by the

evidence. We affirm the order of wardship.

                                         II

               FACTUAL AND PROCEDURAL BACKGROUND

       A. The Original Juvenile Court Proceedings.

       In June of 1994, Ivan T. and a fellow member of the Citron Street Gang
were walking down an Orange County Street. They approached the victim and

asked him where he was from. When the victim replied he was from

“ ‘F.O.L.K.S.,’ ” Ivan T., his companion, and the victim began to argue. As the
argument progressed, Ivan T.’s companion pulled out a gun and fatally shot the

victim. The People filed a petition in Orange County juvenile court alleging Ivan

T. committed voluntary manslaughter, during the commission of which a principal

was armed with a firearm (Pen. Code, §§ 192, subd. (a), 12022, subd. (d)). The



                                          3
juvenile court sustained the petition, declared Ivan T. a ward of the court (§ 602),

and ordered him placed at “home on probation.” The matter was transferred from

Orange County to Los Angeles County on November 8, 1996.

       B. The Criminal Court Proceedings.

       During the early morning hours of December 6, 1996, Ivan T. and two

companions were in a car in Los Angeles County. At approximately 5 a.m., they

got out of the car, ran toward Winston Kaya and began to hit and kick Kaya,

knocking him to the ground. When Kaya managed to stand up, Ivan T. and one of

his companions pointed a knife and a gun at him. While holding the weapons close

to Kaya’s body, Ivan T. and his companion removed Kaya’s wallet from his pants

pocket. Ivan T. and his companions then got back into the car and drove off. As a

result of this incident, the People filed a section 602 petition in Los Angeles

County on December 9, 1996. The petition alleged Ivan T. committed second

degree robbery (Pen. Code, § 211) and assault by means of force likely to produce

great bodily injury (Pen. Code, § 245, subd. (a)(1)). On December 27, 1996, the

People filed a second section 602 petition in Los Angeles County. This petition

alleged Ivan T. had committed second degree burglary of a vehicle on
November 6, 1996. (Pen. Code, § 459.) It was further alleged Ivan T. was “not a

fit and proper subject to be dealt with under the juvenile court law, and [that] the

People [would] move the court to so order.”
       On January 2, 1997, the juvenile court found Ivan T. to be not a fit and

proper subject to be dealt with under the juvenile court law. (§ 707.) The court

dismissed the Los Angeles County petitions “without prejudice” and referred the

matter to the district attorney for prosecution. A jury found Ivan T. guilty of



                                          4
robbery and burglary in criminal court on March 4, 1997. The trial court

sentenced Ivan T. to a term in state prison.

       C. The Supplemental Petition.

       On May 1, 1997, the People filed a supplemental petition in the juvenile

court pursuant to section 777. The petition alleged Ivan T. had violated conditions

of probation which had been imposed following the juvenile court’s finding he

committed voluntary manslaughter. In suffering criminal court convictions of

robbery and burglary, Ivan T. had violated the condition that he “obey all laws.”

In the supplemental petition the People requested that the previous disposition of

“home on probation” be vacated and a new order entered placing Ivan T. at CYA.

       On May 5, 1997, Ivan T. admitted having suffered the alleged robbery and

burglary convictions. The juvenile court found true the supplemental petition and

ordered Ivan T. committed to CYA for a period not to exceed 14 years. After he

completed his state prison term, Ivan T. was delivered to CYA. Ivan T. filed a

timely notice of appeal from the juvenile court’s order.

                                         III

                                   DISCUSSION
       A. The Juvenile Court Properly Retained Jurisdiction Over Ivan T.’s Prior

Juvenile Court Adjudication After Finding Ivan T. Unfit to Be Dealt with Under

the Juvenile Court Law.
       Ivan T. contends the juvenile court erred in retaining jurisdiction over his

earlier matter after he was found unfit to be dealt with under the juvenile court

law. The contention is without merit.




                                          5
              1. The Clear Language of Section 707.01 Governs Ivan T.’s Case.

       Under certain circumstances, a minor alleged to have committed a crime

may be found unfit to be dealt with under the juvenile court law. (§ 707.) Once a

minor has been found unfit, the question whether and under what circumstances

the juvenile court may retain jurisdiction over previously adjudicated, pending,

and future petitions is governed by section 707.01. With regard to previous

adjudications, subdivision (a)(1) of that section provides in relevant part: “If a

minor is found an unfit subject to be dealt with under the juvenile court law

pursuant to Section 707, then the following shall apply: [¶] (1) The jurisdiction of

the juvenile court with respect to any previous adjudication resulting in the minor

being made a ward of the juvenile court that did not result in the minor’s

commitment to the Youth Authority shall not terminate, unless a hearing is held

pursuant to Section 785 and the jurisdiction of the juvenile court over the minor is

terminated.” (Italics added.)

       In interpreting section 707.01, subdivision (a)(1), our task is to “ascertain

and effectuate [the] legislative intent. [Citations.] We turn first to the words of

the statute themselves, recognizing that ‘they generally provide the most reliable
indicator of legislative intent.’ [Citations.] When the language of a statute is

‘clear and unambiguous’ and thus not reasonably susceptible of more than one

meaning, ‘ “ ‘ “there is no need for construction, and courts should not indulge in
it.” ’ ” ’ [Citations.]” (People v. Gardeley (1996) 14 Cal.4th 605, 621.)

       Here, the relevant statutory language is clear. Subdivision (a)(1) of section

707.01 states that once a juvenile has been found unfit, the juvenile court’s

jurisdiction with respect to any previous adjudication which did not result in a



                                          6
Youth Authority commitment “shall not terminate, unless a hearing is held

pursuant to Section 785 . . . .” (§ 707.01, subd. (a)(1), italics added.)2 Ivan T.’s

case fits squarely within the terms of section 707.01, subdivision (a)(1). At

proceedings held in 1994, the juvenile court declared Ivan T. a ward of the court

by reason of his having committed voluntary manslaughter. Rather than commit

Ivan T. to CYA, the juvenile court placed him at home on probation. When the

juvenile court later found Ivan T. unfit to be dealt with under the juvenile court

law, it nevertheless retained jurisdiction over the prior adjudication pursuant to the

provisions of subdivision (a)(1). The juvenile court could not terminate its

jurisdiction without first holding a section 785 hearing. No such hearing was held

in Ivan T.’s case.

              2. Section 707.01 Supersedes Prior Inconsistent Case Law.

       Ivan T. asserts the juvenile court violated long standing principles of

juvenile court law in retaining jurisdiction over his voluntary manslaughter case.

He directs us to the court’s opinion in In re Dennis J. (1977) 72 CalApp.3d 755,

In that matter, the People filed a number of petitions in the juvenile court alleging


2       Section 785 provides in relevant part: “(a) Where a minor is a ward of the
juvenile court, the wardship did not result in the minor’s commitment to the Youth
Authority, and the minor is found not to be a fit and proper subject to be dealt with
under the juvenile court law with respect to a subsequent allegation of criminal
conduct, any parent or other person having an interest in the minor, or the minor,
through a properly appointed guardian, the prosecuting attorney, or probation
officer, may petition the court in the same action in which the minor was found to
be a ward of the juvenile court for a hearing for an order to terminate or modify
the jurisdiction of the juvenile court. The court shall order that a hearing be held
and shall give prior notice . . . . [¶] (b) The petition shall be verified and shall
state why jurisdiction should be terminated or modified in concise language. [¶]
(c) In determining whether or not the wardship shall terminate or be modified, the
court shall be guided by the policies set forth in Section 202.”

                                          7
Dennis J. had committed various crimes. With regard to one of those petitions, the

juvenile court found Dennis J. unfit to be dealt with under the juvenile court law.

The People then charged Dennis J. in adult criminal court, where he pleaded guilty

to one charge and was granted probation. The juvenile court disposed of the

previously filed petitions by committing Dennis J. to the Youth Authority. The

appellate court determined the juvenile court had improperly exercised continued

jurisdiction over Dennis J. once the court determined Dennis J. was unfit. In

concluding the adult court and the juvenile court could not exercise concurrent

jurisdiction, the court stated that “[i]n exercising its jurisdiction the juvenile court

[could] not treat and rehabilitate a part of the minor while leaving another part to

the rehabilitation processes of the regular criminal justice system. Either the

juvenile court or the adult criminal court must deal with the whole individual.” (In

re Dennis J., supra, 72 Cal.App.3d at p. 760.)

       More recently, the court in In re Richard C. (1994) 24 Cal.App.4th 966,

noted that since In re Dennis J., “the Courts of Appeal have been required to

define the extent to which the juvenile court may exercise jurisdiction over a

minor . . . at or following a point when the minor is declared unfit for treatment by
the juvenile court as to one of several sets of charges.” (24 Cal.App.4th at p. 969.)

The Richard C. court recognized that, although most prior cases “suggest[ed] that

a minor treated as an adult for some purposes must be treated as an adult for all”
(ibid.), “[a]nother line of cases ha[d] limited the implications of Dennis J. and its

progeny.” (Id. at p. 970.) From this “melange of decisions,” the Richard C. court

inferred that the Dennis J. line of cases stood for “at least two propositions. First,

a finding of unfitness followed by a criminal conviction in adult court will deprive



                                            8
the juvenile court of jurisdiction to adjudicate pending and future petitions at least

for as long as the adult court continues to exercise jurisdiction. . . . Second, a

finding of unfitness in a pending case deprives the juvenile court of jurisdiction to

adjudicate other pending cases.” (24 Cal.App.4th at p. 971, fn. omitted.)

       The Richard C. court then determined that neither proposition controlled

the case before it. Richard C. had been declared a ward of the court and was on

probation when he was charged with rape and found unfit to be dealt with under

the juvenile court law. When Richard C. was tried on the rape charge in adult

court, the jury deadlocked and the matter was dismissed. Shortly thereafter, the

People filed a petition in the juvenile court alleging Richard C. had violated the

terms of his probation in his juvenile court case. Richard C. argued that since he

had been found unfit, the juvenile court could no longer exercise jurisdiction over

him. The appellate court disagreed. The court concluded that “where a finding of

unfitness is based on and assumes the truth of the charges against the minor, an

acquittal or other dismissal of the charges terminates the jurisdiction of the adult

court and reestablishes jurisdiction in the juvenile court to the same extent it

existed before the finding of unfitness. Under such circumstances the prior
finding of unfitness is no longer inconsistent with juvenile court jurisdiction.” (In

re Richard C., supra, 24 Cal.App.4th at p. 971.)

       A reading of the legislative history for section 707.01 indicates the
Legislature was well aware of In re Dennis J. and In re Richard C. when they

enacted the statute. One analyst noted that “[u]nder current law, when a minor is

found to be an unfit subject for juvenile court and then is convicted in a court of

criminal jurisdiction . . . , he or she will continue to be considered unfit for



                                           9
juvenile court as to any subsequent criminal charges, without further hearing on

the matter. [Citation.] [¶] This bill would revise and recast these [laws] . . . .”

(Sen. Rules Com., analysis of Assem. Bill No. 1948 (1994 Reg. Sess.) Aug. 19,

1994.) In a letter to the governor, the author of the legislation referred to the

court’s opinion in In re Richard C., supra, 24 Cal.App.4th 966, then stated: “[This

bill] provides jurisdictional rules for a variety of circumstances not covered by

current law relating to minors found unfit for juvenile court. The purpose of this

bill is to clarify which court has jurisdiction over a minor who has been found

unfit for juvenile court in accordance with what is generally thought to be existing

case law. . . . [¶] The measure is designed to deal with the thorny issue of the

effect of a finding of unfitness. Case law is all over the lot as to what happens to

subsequent and pending petitions when a minor has been found unfit. There are

also questions as to the status of a pre-existing wardship when a minor is

subsequently found unfit.” (Letter to Hon. Pete Wilson regarding Assem. Bill

No. 1948, from Tom Connolly, Assemblyman, Seventy-Seventh District, Sept. 7,

1994.)

         A reading of the statute and its legislative history indicates the Legislature
intended the provisions of section 707.01 to supersede In re Dennis J. and In re

Richard C. to the extent its provisions are inconsistent with those opinions. It is

apparent the Legislature wished to provide clear, succinct rules regarding when
and under what circumstances a juvenile court must, may, or may not retain

jurisdiction over a minor’s prior, pending, or new matters.




                                            10
              3. The Juvenile Court Properly Retained Jurisdiction in Ivan T.’s

Case--No Section 785 Hearing Was Held.

       Finally, Ivan T. asserts, although the juvenile court may have had the

authority to retain jurisdiction, it erred in doing so. He argues concurrent

jurisdiction is neither practical nor just. Within the first month of his parole after

serving 15 months in custody, Ivan T. found a job and had regularly reported to

his parole officer. He argues the juvenile court’s retention of jurisdiction under

these circumstances was inconsistent with its prior orders and worked to Ivan T.’s

detriment.

       Section 707.01, subdivision (a)(1) specifically requires that before the

juvenile court may terminate its jurisdiction in a case such as Ivan T.’s, it must

hold a hearing pursuant to section 785. Section 785 provides that a minor’s

parent, guardian, the prosecuting attorney, or the probation officer may petition the

juvenile court for a hearing for an order to terminate jurisdiction. The “petition

[must] be verified and . . . state why jurisdiction should be terminated.” (§ 785,

subd. (b).) The court must then order a hearing after giving proper notice to all

interested parties. Further, in determining whether to terminate jurisdiction, the
juvenile court must “be guided by the policies set forth in Section 202.” (§ 785,




                                          11
subd. (c).)3 In the present case, at proceedings held on March 27, 1998, counsel

for Ivan T. orally requested the juvenile court to terminate its jurisdiction.

However, our review of the record reveals no written or “verified” petition.

(§ 785, subd. (b).) Since it does not appear the parties complied with the

provisions of section 785, the trial court could not properly terminate its

jurisdiction at those proceedings.

              4. Conclusion.

       In enacting section 707.01, the Legislature clearly indicated that in certain

well-defined circumstances a juvenile court shall retain jurisdiction over a minor

although the minor has for purposes of another matter been found unfit to be dealt

with under the juvenile court law. Since Ivan T. fits squarely within the

circumstances delineated in subdivision (a)(1) of that section, the juvenile court

properly retained jurisdiction in this matter.




3       Section 202 provides in relevant 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 . . . . When removal of a minor is determined by the
juvenile court to be necessary, reunification of the minor with his or her family
shall be a primary objective. 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. [¶] . . . [¶] (d) 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, the importance of redressing injuries to
victims, and the best interests of the minor in all deliberations pursuant to this
chapter. They shall act in conformity with a comprehensive set of objectives
established to improve system performance in a vigorous and ongoing manner.”

                                          12
       B. The Juvenile Court Properly Corrected Its July 28, 1997 Order

Terminating Its Jurisdiction.

       After finding true the supplemental petition alleging that by reason of his

convictions of burglary and robbery in the criminal court Ivan T. had violated his

juvenile court probation, the juvenile court committed Ivan T. to CYA for a period

not to exceed 14 years. However, the court noted that Ivan T. could not be

delivered to CYA because he was at that time serving a term in state prison.

Approximately three months later, on July 28, 1997, the juvenile court issued a

minute order indicating the CYA commitment had been “terminated” and that

“jurisdiction [was] terminated.” Approximately seven months later, the juvenile

court issued another minute order indicating it was “vacat[ing] [its] previous order

recalling and terminating [the] CYA [commitment] and order[ing] that [Ivan T.]

be brought to [the juvenile] court forthwith for further hearing and reinstatement

of [the] CYA order.” At later proceedings, the juvenile court reinstated the

“previous disposition of commitment to the California Youth Authority.”

       Ivan T. contends the juvenile court’s order reinstating jurisdiction and

committing him to the CYA is invalid because the court had previously issued an
order terminating its jurisdiction and it could not simply vacate that order nunc pro

tunc. While a juvenile court may correct clerical errors in this manner, it may not

correct errors which are “judicial” in nature. Ivan T. asserts the error presented
here, the issuance of an order terminating jurisdiction, was “judicial.”

       “A court has inherent power to correct clerical errors to make court records

reflect the true facts. This power exists independent of statute and may be

exercised in criminal cases. The court may correct such errors on its own motion



                                         13
. . . .” (People v. Jack (1989) 213 Cal.App.3d 913, 915, citing In re Candelario

(1970) 3 Cal.3d 702, 705.) “However, cases distinguish between clerical error

which can be corrected by amendment and judicial error which can only be

corrected by appropriate statutory procedure. [Citations.] Generally, a clerical

error is one inadvertently made, while a judicial error is one made advertently in

the exercise of judgment or discretion.” (People v. Jack, supra, at p. 915.)

       In People v. Jack, supra, the court determined the trial court could properly

correct its original erroneous calculation of Jack’s presentence custody credits. In

part because “the trial court exercises no discretion when determining the days of

presentence custody, authorizing it to correct any erroneous determination brought

to its attention does not risk any untoward judicial action. This procedure merely

permits the trial court to correct a simple error, thus allowing the court to fulfill its

statutory duty to grant the correct number of presentence credits. . . .” (213

Cal.App.3d at p. 917.) In reaching this conclusion, the court noted that “[i]n most

cases in which the trial court has jurisdiction to resentence a criminal defendant--

in which clerical error occurs--the sentence originally imposed was not authorized

by law. The sentence is void because it is based on an erroneous interpretation of
[the] law. Such an error of law may be corrected at any time, even if the

correction results in a sentence greater than that originally imposed.” (Id. at

p. 916.)
       In People v. Ramirez (1992) 6 Cal.App.4th 1583, the court erroneously

applied an incorrect legal standard when ruling on a motion to suppress evidence.

The trial court, realizing its error, reconsidered the motion and changed its ruling.

The appellate court concluded “a trial court should be allowed to reconsider a



                                           14
motion to suppress evidence before the commencement of trial when it has applied

an incorrect legal standard in making its ruling. Such a holding is consistent with

the notions of judicial economy . . . as well as a trial court’s statutory powers to

modify its orders . . . .” (Id. at pp. 1592-1593, fn. omitted.) In making its

decision, the court “acknowledge[d] a line of authority holding errors in the

exercise of judicial discretion, or judicial errors, ‘noncorrectible.’ [Citation.]” (Id.

at p. 1593, fn. 6.) However, the court stated that “this doctrine has been largely

applied to prohibit the correction of errors postjudgment. [Citations.]

Furthermore, most cases relying on the doctrine have prevented reconsideration of

the factual bases for rulings greatly affecting the rights or status of a party.

[Citation.]” (Ibid., italics in original.)

       In the present case, the juvenile court relied on section 707.01, subdivision

(a)(1) in determining it had maintained jurisdiction in Ivan T.’s case. Subdivision

(a) provides that if a minor is found unfit to be dealt with under the juvenile court

law, the juvenile court’s jurisdiction “with respect to any previous adjudication

resulting in the minor being made a ward of the juvenile court that did not result in

the minor’s commitment to the Youth Authority shall not terminate, unless a
hearing is held pursuant to Section 785 and the jurisdiction of the juvenile court

over the minor is terminated.” (Italics added.) As we stated above, section 785

requires the filing of a verified petition which specifically states why jurisdiction
must be terminated. The court must then hold a hearing after giving proper notice

to all interested parties. Finally, in determining whether to terminate jurisdiction,

the juvenile court must consider the policies set forth in the juvenile court law.

Since no such hearing was held, the juvenile court’s July 28, 1997 order



                                             15
terminating its jurisdiction in Ivan T.’s case was contrary to law and the juvenile

court could properly correct it.

       We note the trial court’s order correcting its error required no exercise of

discretion and did not risk any untoward judicial action. The correction did not

occur after a final judgment in the matter; Ivan T. was still on probation at the

time. Further, the correction of the order required no reconsideration of any

factual bases underlying the original ruling. It simply nullified the trial court’s

invalid order and effectively reinstated the earlier order.

       Ivan T. asserts that in People v. Ramirez, supra, 6 Cal.App.4th 1583, the

trial court corrected its error immediately while in the present case the juvenile

court did not attempt to correct its error for several months. While the passage of

time may be of the utmost importance in some cases, in others it is not a defining

factor. Here, the juvenile court corrected its order before any further action was

taken in the matter and the passage of time did not in any way prejudice Ivan T.

       C. Substantial Evidence Supports Ivan T.’s Youth Authority Commitment.

       Ivan T. contends the juvenile court erred in committing him to the CYA

because there is no evidence indicating it is probable he will be “benefited by the
reformatory educational discipline or other treatment provided by the Youth

Authority.” (§ 734.)

       Commitment of a minor to the CYA must be supported by evidence
demonstrating that commitment will result in “probable benefit to the minor . . .

and that less restrictive alternatives would be ineffective or inappropriate.” (In re

George M. (1993) 14 Cal.App.4th 376, 379.) We note, however, that

“amendments to the juvenile court law [also] reflect[] an increased emphasis on



                                          16
punishment as a tool of rehabilitation, and a concern for the safety of the public.”

(In re Asean D. (1993) 14 Cal.App.4th 467, 473, citing In re Michael D. (1987)

188 Cal.App.3d 1392, 1396.) In addition, “it is clear that a commitment to the

Youth Authority may be made in the first instance, without previous resort to less

restrictive placements.” (In re Asean D., supra, 14 Cal.App.4th at p. 473.) “The

juvenile court’s decision to commit a minor to the CYA will be reversed only

when an abuse of discretion has been shown.” (In re George M., supra, 14

Cal.App.4th at p. 379.) “If a commitment conforms to the general purpose of the

Juvenile Court Law, the disposition will be deemed to fall within the sound

discretion of the juvenile court.” (In re James H. (1981) 121 Cal.App.3d 268, 273,

fn. omitted.)

       At juvenile court proceedings held on May 5, 1997, Ivan T. admitted

having been convicted of robbery and burglary in the criminal court. As a result

of those convictions, the juvenile court found Ivan T. in violation of his probation.

After stating it had “read and considered the probation report in [the] matter,” the

juvenile court stated it was “fully satisfied that the mental condition of [Ivan T.]

[was] such as to render it probable that he [would] be benefited by the
reformatory, educational, discipline or other treatment provided by the Youth

Authority.” The juvenile court then ordered Ivan T. to be confined for a period

not to exceed 14 years.
       The probation report, dated December 27, 1996, indicates Ivan T.’s

performance on probation was “far less than satisfactory.” Ivan T. had violated

terms of his probation by associating with known gang members, committing

serious crimes, possessing a firearm, and consuming alcoholic beverages. Ivan T.,



                                          17
whose moniker was “Sneaky,” had been a member of the Citron Street Gang.

When he was taken into custody after having committed robbery, he “was in the

company of known and admitted gang members for El Monte Flores.” Although

Ivan T. had only three “police contacts,” each of them was of a serious nature.

The first incident resulted in the victim’s death. The circumstances surrounding

the robbery “indicate[d] a complete disregard for the physical well-being of

another person.” In general, the probation officer was of the opinion Ivan T. had

“demonstrated a propensity for violence” and was a “clear and present danger to

the community.” At proceedings held on March 27, 1998, without ordering or

considering an updated probation report, the juvenile court “reinstated” its

disposition of commitment to the CYA.

       Our review of the record indicates there is substantial evidence to support

the CYA commitment. At the time of the original commitment order, the juvenile

court expressly found Ivan T. would probably benefit from the education,

discipline or other treatment provided by the Youth Authority. Although since

that time Ivan T. has served a term in state prison, the serious and violent nature of

his criminal history nevertheless supports the juvenile court’s finding a CYA
commitment is warranted. Ivan T. began his criminal career at the age of 14,

when he committed voluntary manslaughter. Since that time, he has been found to

have committed robbery and burglary. He has strong ties to gangs and his
performance on probation was abysmal. Under these circumstances, the CYA

commitment was justified by concern for both Ivan T.’s welfare and the safety of

the public.




                                         18
                                     IV

                               DISPOSITION

     The order of wardship is affirmed.

     CERTIFIED FOR PARTIAL PUBLICATION



                                          KITCHING, J.

We concur:


             CROSKEY, Acting P.J.



             ALDRICH, J.




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