In re Don. W.

Filed 11/30/05 In re Don. W. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

In re DON W., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. DON W., Defendant and Appellant.	A111155 (Mendocino County Super. Ct. No. 3117470502)

Don W. appeals the August 15, 2005, dispositional order committing him to the California Youth Authority (CYA). He was found to have violated the probation imposed following his convictions for theft of a firearm (Pen. Code, § 487, subd. (d)) and for sexually molesting a child under the age of 14 (Pen. Code, § 288, subd. (a).) Defendant’s court-appointed counsel has briefed no issues and asks this court to review the record pursuant to People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738.

BACKGROUND

Defendant was born in June 1987. In October 2002, he was declared a ward of the juvenile court after he admitted grand theft of a firearm. (Pen. Code. § 487, subd. (d).) He was placed on probation, with the advisory that if he did not follow the terms of probation, including obeying all laws, he could be confined in juvenile hall or CYA for a period up to three years.

In March 2003, an amended petition alleged violation of probation (count one), two counts of lewd or lascivious acts on a child under 14, one by force (counts two & three), and one count of sodomy by force (count four), all committed on the same victim on a single day. An April 2003, second amended petition alleged two additional counts of lewd or lascivious acts on the same victim but on two earlier dates (counts five & six). Following a contested hearing, the court found true counts one through four, and dismissed counts five and six. It subsequently struck the findings of force pertinent to counts three and four.

In November 2003, the court denied the People’s request to commit defendant to CYA and ordered him instead to a residential treatment program for juvenile sex offenders. It set the maximum term as eight years, eight months: the maximum statutory term for the sex offense and one-third the statutory midterm for the firearm theft. In April 2004, defendant admitted violating probation by failing to abide by all rules of his placement site. He was continued as a ward of the court and ordered to serve 90 days in juvenile hall.

In August 2004, defendant was returned to the residential treatment program. On September 27, 2004, he was terminated from the program following refusal to complete an assignment, cursing the staff, leaving the placement without permission, and being under the influence of alcohol and marijuana when he was returned.

In December 2004 the court, without explanation, committed defendant to CYA for a maximum commitment of eight years, eight months, with credit for 552 days served. It ordered him to pay restitution, pay a restitution fine, and register as a sex offender.

Defendant appealed the December 2004 commitment order solely on the ground the court erred in failing to exercise its statutory discretion in setting his maximum term of physical confinement pursuant to the newly-enacted Welfare and Institutions Code, section 731, subdivision (b). (In re Don W. (Aug. 23, 2005, A108669 [nonpub. opn.].)

In May 2005, while defendant’s appeal was pending, he moved to modify his commitment based on In re Sean W. (2005) 127 Cal.App.4th 1177 and In re Carlos E. (2005) 127 Cal.App.4th 1529. These opinions held that the new statute grants the juvenile court discretion to impose a maximum term of commitment less than the statutory upper term for an adult offender.

On August 15, 2005, following a hearing at which the court received evidence, heard argument, and reviewed defendant’s juvenile court file, the court affirmed defendant’s eight year, eight month CYA commitment, based on the facts and circumstances of the his firearm theft and sex offenses, the extreme harm he caused the nine-year-old victim and victim’s family, his lack of remorse and victim empathy, his need for rehabilitation, education, and treatment, the danger he presented to society until rehabilitated, his lack of honesty with law enforcement personnel, his poor performance in his initial grant of probation, and his dysfunctional family history and unmet mental health and educational needs. On August 16, 2005, defendant appealed this order.

A week later, August 23, 2005, this division issued its opinion in defendant’s appeal. We affirmed the disposition but remanded to allow the court to exercise its discretion pursuant to Welfare and Institutions Code section 731, subdivision (b). (A108669 [nonpub. opn.].)

The record supports the length of defendant’s recommitment to CYA. Defendant was represented by counsel throughout the modification of commitment proceedings. He received a fair hearing that comported with due process. There are no errors in the disposition order. We find no errors or other issues requiring further briefing.

The disposition order of August 15, 2005, is affirmed.

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Jones, P. J.

We concur:

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Stevens, J.

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Simons, J.

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