People v. Tony R. (In re Tony R.)

1

In re TONY R., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent, v. TONY R., Defendant and Appellant.

A165072

California Court of Appeals, First District, Second Division

December 28, 2023

NOT TO BE PUBLISHED

Order Filed Date 1/26/24

Solano County Super. Ct. No. J45405

ORDER MODIFYING OPINION AND DENYING REQUEST FOR REHEARING

THE COURT:

The opinion filed on December 28, 2023, is modified as follows:

On page 13, replace last sentence of first paragraph ("Tony's score for recidivism risk was high when she wrote the first report and remained high.") with the following:

"Both disposition reports relied on the high score for recidivism found in the assessment performed shortly after Tony's arrest."

On page 43, add new second paragraph to disposition:

"The disposition order shall also be corrected to state in Finding 5 on page 2 that the minor is awarded 149 days of credit."

The petition for rehearing is denied.

This modification changes the judgment.

STEWART, P.J.

Tony R appeals from juvenile court orders following a contested disposition hearing. He challenges the court's decision to commit him to a secure youth facility program that was not yet fully operational. In addition, he argues that two enhancements must be stricken, his baseline term of confinement must be clarified and potentially reduced, his maximum term of confinement must be clarified; his predisposition credits must be corrected and applied to the baseline term rather than the maximum term of confinement the probation order requiring him to stay away from El Sobrante is vague and overbroad; a termination date must be specified for the stay-away order and a no contact order; and an unauthorized probation fine must be stricken. We find most of these arguments to be without merit.

We agree, however, that the juvenile court must reconsider its determination of the maximum term of confinement in light of a statutory amendment subsequent to the disposition hearing, and that the disposition order must be corrected with respect to the maximum term of confinement and the number of precommitment credits awarded.^[1]

BACKGROUND

I. Factual Background

A. The El Sobrante Offenses^[2]

At approximately 6:22 p.m. on October 3, 2021, Paraminder Soomal (age 59) and his father, Swarn Singh (age 84), were mowing the lawn at their home in El Sobrante when a BMW pulled up. A witness saw three black youths get out of the BMW, all brandishing handguns, and begin beating Soomal and Singh. On video from the home's Ring camera, a voice can be heard saying" 'Hey everybody, give me your shit n---a.'" Singh backs up as Tony^[3] shouts," 'take that watch off n---a, shut the fuck up and take that watch off n---a,'" and Singh falls backwards onto the porch. Tony appears to "forcefully take property off" Singh, who attempts to defend himself while lying on his back and swinging an electrical cord at Tony. During this struggle, Tony points the gun at Singh, throws a chair at Singh's head, and strikes Singh several times with the handgun. Soomal then strikes Tony's head with an empty plastic bucket and Tony falls to the ground briefly. Tony stands up and fires a round at Soomal, who falls and appears to lose all bodily function. Suspect 2 fires several rounds. The video shows only suspect 3's pants and shoes. When the police arrived at about 6:25 p.m., they found Soomal lying on his back, bleeding from several gunshot wounds to his upper body. Singh was sitting on the stairs bleeding from a gunshot wound to his head, with a witness providing aid.

Singh's skull was fractured from a gunshot wound just above his left eyebrow. Interviewed at the hospital with the assistance of a Punjabi translator, Singh said that when the youths confronted them, he could not understand what they wanted because he speaks only Punjabi. He did not know the youths and had never seen them before. Soomal was paralyzed from the waist down and suffered severe internal bleeding due to a gunshot wound to his chest that exited his back and also had gunshot wounds to his right biceps and hip. Soomal remained in the hospital until December 2. When interviewed on December 7, he told the police he would be in a wheelchair for the rest of his life and continued to have nightmares about the incident. He was confused about why he and his father were attacked and said that if Singh had understood what the youths wanted, he would have complied. He said Singh was suffering from nerve damage and memory loss.

Subsequent police investigation determined that then 14-year-old Tony was one of the three youths involved in the incident and he was arrested on November 18, 2021. The other two youths involved were 16-year-old A.E. and 15-year-old C.E.

B. The Alleged Solano County Offenses^[4]

On September 27, 2021, police officers responded to Vallejo High School regarding an assault involving a firearm. The vice principal told the officers that a parent had informed her on September 22, 2021, that her son W.B. was assaulted and pistol whipped on September 20, 2021, during school hours, at First Presbyterian Church. W.B., who was on FaceTime while his mother spoke with the vice principal, said he was lured to the church by his childhood friend G.H. Once there, they were contacted by A.E. (the 16 year old involved in the El Sobrante offenses), R.L, C.L. and Tony. At the direction of A.E., Tony held a gun to W.B.'s head while C.L. searched his person and backpack. During the incident, W.B. was pistol whipped in the head and suffered an unknown injury; a photo of the injury was requested but not received. The vice principal told the officers that she confirmed from attendance records that W.B., Tony, G.H., C.L. and R.L. were absent at the time of the incident. She called the police after the mother contacted her about threats to W.B. on social media by the suspects. The officers noted that screenshots from Instagram stories containing intimidating language that W.B. and his mother believed were threats against him did not clearly state specific threats of bodily harm and used "heavy slang terms and grammar." The vice principal later told officers she had received information from an anonymous student that a person believed to be Tony was seen armed with a gun on school property.^[5]

II. Legal Proceedings

On November 10, 2021, the Contra Costa County District Attorney filed a Welfare and Institutions Code^[6] section 602 petition alleging that Tony committed one count of attempted murder (Pen. Code, § 187, subd. (a)/664) and one count of second degree robbery (id., § 211/212.5, subd. (c)). Special allegations of personal use and discharge of a firearm causing great bodily injury (§ 12022.53, subds. (b), (c) &(d)) were alleged as to both counts. Count 2 also alleged infliction of great bodily injury on an elderly victim (id., § 12022.7, subd. (c)). Tony denied the allegations and remained detained in juvenile hall.

On November 23, 2021, the People filed an amended petition adding allegations that Tony personally used a firearm in violation of Penal Code section "12022.5(a)(1)" in the commission of both counts and, in the commission of count 1, inflicted great bodily injury that "caused the victim to become comatose due to brain injury and to suffer paralysis of a permanent nature" (Pen. Code, § 12022.7, subd. (b)).

On the same date, Tony entered a plea of no contest to the charged offenses and admitted the enhancements. The case was transferred to Solano County, Tony's county of residence.

On December 13, 2021, the Solano County District Attorney filed a section 602 petition alleging that on September 20, 2021, Tony committed one count of assault with a firearm (Pen. Code, § 245, subd. (a)(2)), and one count of assault by means likely to produce great bodily injury (id., § 245, subd. (a)(4)). Tony denied the allegations.

At the February 15, 2022 hearing scheduled for disposition on the Contra Costa County petition, the Solano County petition was dismissed pursuant to the parties' agreement that the court could consider the facts underlying the two dismissed counts in ordering restitution and considering the appropriate disposition in the Contra Costa case. The disposition hearing was continued and ultimately took place on April 5, 2022.

At the conclusion of the disposition hearing, the court adjudged Tony a ward of the court and committed him to juvenile hall for 148 days, with credit for 148 days, and to the Reaching into Successful Endeavors Program (RISE) for a maximum term of 11 years or until age 25. The court ordered Tony to pay a $100 restitution fine and any ordered victim restitution. The court imposed probation orders including that Tony not have contact with the victims and co-responsibles and that he stay away from El Sobrante unless with a responsible adult.

Tony filed a timely notice of appeal on April 15, 2022.

DISCUSSION

I.

The Commitment to RISE Was Not an Abuse of Discretion.

Tony argues there was insufficient evidence to support the commitment to RISE because the program was "nonoperational" at the time he was committed. He maintains the juvenile court should have committed him to the less restrictive Challenge Academy (Challenge), which in his view would provide similar services and be sufficient for his rehabilitative needs. The probation department had initially recommended commitment to Challenge but changed its recommendation to the more restrictive RISE when directed to consider the facts underlying the Solano County petition as well as the Contra Costa County offenses.

A. The Programs

1. Challenge Academy

As described in the probation report and at the disposition hearing, Challenge is a three-phase program that...