In the Matter of the Welfare of: L.F.G.-L.

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In the Matter of the Welfare of: L.F.G.-L. A07-366, Court of Appeals Unpublished Decision, November 6, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA
 IN COURT OF APPEALS
A07-366

 
In the Matter of the Welfare of:
L.F.G.-L.

 

 

Filed November 6, 2007

Affirmed

Dietzen, Judge

 

Hennepin County District Court

File No. 27-JV-06-17921

 

Leonardo Castro, Fourth District Public Defender, Barbara S. Isaacman, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant L.F.G.-L.)

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

            Considered and decided by Dietzen, Presiding Judge; Halbrooks, Judge; and Harten, Judge.*


 

U N P U B L I S H E D   O P I N I O N

DIETZEN, Judge

Appellant L.F.G.-L. challenges the district court's order certifying him to stand trial as an adult on six counts of second-degree attempted murder and one count of crime committed for the benefit of a gang.  Because the district court properly applied the law and did not abuse its discretion, we affirm.

FACTS

In November 2006, Minneapolis police were dispatched to Hennepin County Medical Center (HCMC) on a report that two gunshot-wound victims had arrived at the hospital for treatment.  The victims reported to the officers that they had been shot near the intersection of Lake Street and Bloomington Avenue in south Minneapolis. 

Driver E.C. told police that he drove a pickup truck, which carried five passengers, to a club at Lake Street and Bloomington Avenue that evening.  When they entered the club parking lot, an individual known as "Too Short," who was later identified as appellant, approached the truck and flashed gang signs.  E.C. continued driving around the parking lot, and on his way out he saw appellant and an accomplice fire multiple shots at the truck.  E.C. was shot in the arm, and passengers S.C. and R.P. were also shot.  E.C. later identified appellant from a photo lineup as one of the individuals who fired shots at the truck.

Passenger C.A. stated that he saw appellant "pushing up" gang signs at them in the parking lot, heard appellant whistle, and saw about 20 of appellant's friends come out into the parking lot.  C.A. then saw two people shoot at the truck.  When shown a photo lineup, C.A. identified appellant as an individual in the parking lot that evening.  Passenger S.C. told police that two members of the Surenos 13 gang shot at the truck, one of whom was appellant.  In a photo lineup, S.C. identified appellant as the shooter.

Appellant is a listed member of the Surenos 13 gang.  At the time of this incident, appellant was on extended jurisdiction juvenile (EJJ) probation arising out of two second-degree assault convictions in September 2005 involving shooting a handgun into a moving vehicle.  Following the conviction, appellant was committed to the Hennepin County Home School program for 13 months.  Appellant was then released into the community and was on furlough status at the time of this incident. 

In December 2006, appellant was charged with six counts of attempted second-degree murder and one count of crime committed for the benefit of a gang.  The state moved to certify the proceedings to adult court.

At a pretrial hearing, the district court ordered a psychological evaluation and a certification study.  Joan Nelson, a licensed psychologist, conducted the psychological evaluation, and after analyzing the public safety factors, recommended certification of appellant to adult court.  Kate Linden, a probation officer, prepared the certification study and recommended that appellant be certified to adult court. 

The district court conducted an evidentiary hearing in January 2007.  The court received Nelson's psychological evaluation and Linden's certification study without objection.  Appellant formally waived his right to call witnesses, stated that he was not involved in the shooting, and promised to change his life.  Following the hearing, the district court found that appellant had failed to rebut the presumption of certification and concluded that appellant should be certified to adult court.  This appeal follows. 

D E C I S I O N

Appellant argues that the district court erred in certifying him for proceedings in adult court.  We review an order granting certification for an abuse of discretion.  In re Welfare of L.M., 719 N.W.2d 708, 710 (Minn. App. 2006).  Clearly erroneous findings by the district court constitute an abuse of discretion.  In re Welfare of H.S.H., 609 N.W.2d 259, 261 (Minn. App. 2000).

Minn. Stat. § 260B.125 provides that certification is presumed when a defendant is 16 or 17 at the time of the offense and the delinquency petition alleges an offense that would result in a presumptive prison sentence or an offense involving the use of a firearm.  Minn. Stat. § 260B.125, subd. 3(1)-(2) (2006).   Here, certification was presumed because appellant was 16 years of age at the time of the offense, the offense carries a presumptive prison sentence under the Minnesota Sentencing Guidelines, and the offense involved the use of a firearm.  Minn. Stat. § 260B.125, subd. 3 (2006); Minn. R. Juv. Delinq. P. 18.06, subd. 1.  The burden then shifted to appellant to rebut the presumption of certification by "demonstrating by clear and convincing evidence that retaining the proceeding in the juvenile court serves public safety."  Minn. Stat. § 260B.125, subd. 3.

            In determining whether retaining the proceeding in juvenile court would serve public safety, the district court must consider six factors.  Minn. Stat. § 260B.125, subd. 4 (2006).  In considering these factors, the court must give greater weight to the seriousness of the alleged offense and the child's prior record of delinquency than to other factors.  Id.  After evaluating the factors, "[i]f the court finds that the child has not rebutted the presumption by clear and convincing evidence, the court shall certify the proceeding."  Minn. Stat. § 260B.125, subd. 3(2).  We now turn to a review of the factors.

            A.        Seriousness of the Offense

Appellant asserts that the district court overemphasized and exaggerated the seriousness of the offense. The first factor requires the district court to consider "the seriousness of the alleged offense in terms of community protection, including the existence of any aggravating factors recognized by the Sentencing Guidelines, the use of a firearm, and the impact on any victim."  Minn. Stat. § 260B.125, subd. 4(1). 

The district court concluded that "[t]he alleged offense is extremely serious in terms of public safety . . . .  It is reported that . . . [appellant] discharged a firearm attempting to cause the death of six people.  Three people were actually shot.  The Court views this as extremely grave and serious."

Here, appellant fired shots into an occupied vehicle.  It is reasonable to conclude he intended to kill or seriously injure the occupants.  On this record, the district court's finding that the seriousness of the offense weighed in favor of certification is amply supported by the record.

            B.        Culpability

Appellant argues that the district court erred in its findings regarding culpability.  The second factor requires that the district court consider the "culpability of the child in committing the alleged offense, including the level of the child's participation in planning and carrying out the offense and the existence of any mitigating factors recognized by the Sentencing Guidelines."  Minn. Stat. § 260B.125, subd. 4(2).

            The district court found that "[appellant] appears to be highly culpable for the offense.  He was observed by witnesses to have participated [in] the offense as the person discharging the firearm from a vehicle."   The court also found that appellant "fled from police after the incident and was apprehended with the weapon on his person."  At the certification hearing, the court stated it was "somewhat shocking" that appellant was back in court for charges nearly identical with his previous assault conviction.        

            Initially, appellant argues that he is not culpable by denying that he committed the offense.  But for purposes of certification, "courts presume that factual allegations in a delinquency petition are true."  In re Welfare of D.W., 731 N.W.2d 828, 834 (Minn. App. 2007).  Thus, we presume appellant fired multiple shots into an occupied vehicle and disregard his professed innocence.

Appellant next argues that the district court erred in finding that he fled from police and was then apprehended with a weapon, and that he discharged a firearm "from a vehicle."  Respondent concedes that the district court erred in those findings, but argues that they are largely irrelevant.  We agree.  For purposes of the statutory factors we presume that the factual allegations of the petition are true and analyze whether those facts establish that appellant is culpable "in committing the alleged offense."  See D.W., 731 N.W.2d at 834.  In the petition, two victims identified appellant as the shooter who planned and carried out the alleged offense.  Those factual assertions clearly support the district court's finding of culpability.  

            Appellant argues that the district court failed to recognize that juveniles "have developmental limitations and deficiencies" that render them less culpable and, therefore, erred in not considering his youth as a mitigating factor.  He suggests that his diagnosis of conduct disorder and antisocial personality traits supports his contention that he lacks culpability.  Initially, we observe that since appellant failed to present this argument to the district court we need not consider it on appeal.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  But even if we do consider appellant's argument, we conclude that it lacks merit.

            Under the statute the "culpability of the child in committing the alleged offense" includes the "existence of any mitigating factors recognized by the Sentencing Guidelines."  Minn. Stat. § 260B.125, subd. 4(2).  Mitigating factors include whether the "offender, because of physical or mental impairment, lacked substantial capacity for judgment when the offense was committed."  Minn. Sent. Guidelines II.D.2.a.(3).  To constitute a mitigating factor, "a defendant's impairment must be ‘extreme' to the point that it deprives the defendant of control over his actions."  State v. McLaughlin, 725 N.W.2d 703, 716 (Minn. 2007).

Here, Nelson concluded that "[appellant] presents without any significant mental health issues or cognitive limitations."  We observe that neither the certification study nor the psychological evaluation concluded appellant's youth affected his decision-making abilities.  On this record, the district court's finding that appellant's culpability favored certification is not clearly erroneous.            

Appellant, nonetheless, argues that all juveniles whose frontal lobes are not fully developed are "more likely to involve themselves in risk-taking behavior and lack the capacity for impulse control."  He suggests that Roper v. Simmons, 543 U.S. 551, 569-70, 125 S. Ct. 1183, 1195 (2005) and long-standing studies of the American Psychological Association (APA) support his argument.  We disagree.  First, Roper is easily distinguishable.  In Roper, the United States Supreme Court addressed the narrow issue of whether capital punishment for offenders under 18 years of age violates the Eighth Amendment's prohibition against cruel and unusual punishment. Id. at 568, 125 S. Ct. at 1194.  Roper did not discuss the issue of certification and did not extend its holding beyond the death-penalty context.  Second, appellant's references to studies of the APA are not part of this record and, more importantly, fail to establish that appellant's youth in this case was a mitigating factor.

            C.        Prior Record

Appellant argues that the district court erred in exaggerating his prior record of delinquency.  Along with the seriousness of the offense, this factor is to be given greater weight when evaluating the public safety factors.  Minn. Stat. § 260B.125, subd. 4.  The court may consider whether the prior record evidences "deeply ingrained, escalating criminal behavior that presents a threat to public safety."  H.S.H., 609 N.W.2d at 263.

            The district court found that appellant "has a considerable delinquency history":

[Appellant] is on Extended Jurisdiction Juvenile probation.  In October 2005 [appellant] was adjudicated delinquent for two counts of Assault in the Second Degree after he was found guilty at trial by a jury.  That offense involved [appellant] flashing gang signs at a passing car and then shooting at the passengers, hitting the passenger window and the interior of the car by the driver's seat.  He has a misdemeanor adjudication for disorderly conduct . . .

 

The psychologist's evaluation noted that appellant "presents with an escalating pattern of dangerousness."  Based on appellant's prior record, especially his previous second-degree assault, which was nearly identical with the current charges, the court could have reasonably concluded that appellant exhibits "escalating criminal behavior that presents a threat to public safety."  H.S.H., 609 N.W.2d at 263.   The district court's conclusion that appellant's prior record favored adult certification is not clearly erroneous.

            D.        Programming History

Next, the district court must consider "the child's programming history, including

the child's past willingness to participate meaningfully in available programming."  Minn. Stat. § 260B.125, subd. 4(4).  Neither appellant nor respondent challenges the district court's finding that appellant "successfully completed the Hennepin County Home School Adolescent Male Treatment Program (CHS-AMTP)," "attended counseling . . . with his mother" and "completed all Sentence to Service . . . in a timely manner," after which "[p]robation observed a marked improvement in [appellant's] behavior."  The district court's conclusion that this factor weighs in favor of EJJ certification is not clearly erroneous.  

            E.        Punishment or Programming Available

Appellant argues that that the district court erred in concluding that the juvenile system did not provide adequate punishment or programming.  The statute requires the district court to consider "the adequacy of the punishment or programming available in the juvenile justice system."  Minn. Stat. § 260B.125, subd. 4(5). 

The district court found that when appellant is away from a structured setting he "poses a threat to public safety by his continued gang involvement."  Furthermore, the district court noted that "[g]iven [appellant's] age it is very doubtful that [appellant] could be restored to law abiding behavior within the time provided with EJJ."

Appellant asserts that there is no evidence in the record to support the district court's finding.  We disagree.  Linden's certification report states that the potential 49 months on EJJ supervision "is not sufficient in addressing the issue of public safety" and "does not adequately compare to the 153+ months in prison [appellant] could receive in adult court."  Likewise, Nelson's report states that despite appellant's success in certain programming, he "persists in the same behaviors, with increasing dangerousness" and that "[f]urther programming under EJJ Designation would not provide the accountability necessary to alter [appellant's] pattern of behavior."  Based on this evidence, the district court's conclusion is not clearly erroneous.

            F.        Dispositional Options Available

            Appellant contends that the district court erred in determining there were few dispositional options available to him.  The statute requires that the district court consider "the dispositional options available for the child."  Minn. Stat. § 260B.125, subd. 4(6).  The district court concluded that appellant "has already completed the CHS-AMPT" and "therefore there are very few other dispositional options available to [appellant]."

            Appellant contends that the district court's conclusion is not supported by evidence in the record.  We disagree.  Linden's certification report states, "There are no placements that would be appropriate in the juvenile system that would adequately meet the needs for public safety."  Although appellant mentioned the Red Wing treatment facility as a possible placement at the certification hearing and in his brief, he did not present clear-and-convincing evidence that this was a viable alternative.  See, e.g., L.M., 719 N.W.2d at 714 ("The mere possibility that a more extensive search would reveal that adequate programming was available . . . is a far cry from clear and convincing evidence that an adequate program was available.").  Thus, the district court's conclusion is not clearly erroneous.

            In summary, we conclude that the district court did not abuse its discretion in determining that appellant failed to meet his burden of proving public safety would be served by retaining the matter in juvenile court as an EJJ proceeding.

            Affirmed.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.