Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. J04-01635
Swager, J.
This appeal comes before us following defendant’s admission of two counts of sexual battery (Pen. Code, § 243.4, subd. (a)), as alleged in an amended petition filed pursuant to Welfare and Institutions Code section 602. Following a contested dispositional hearing, the juvenile court committed defendant to the California Youth Authority (CYA) for a maximum term of five years. In this appeal defendant complains that the CYA commitment is not supported by evidence of benefit to him. We conclude that the dispositional order was not an abuse of the trial court’s discretion, and affirm the judgment.
In accordance with a negotiated disposition, two counts of commission of a lewd and lascivious act upon a child (Pen. Code, § 288, subd. (a)) were dismissed.
The CYA is now referred to as the Division of Juvenile Justice (DJJ). (Gov. Code, §§ 12838, 12838.5.) In this opinion we will use the acronyms DJJ and CYA interchangeably.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
The Underlying Sexual Assault Offenses Admitted by Defendant.
In light of the plea, the facts related to the underlying sexual battery offenses are taken from the probation report, which in turn are taken from the Richmond Police Department report.
On the evening of December 31, 2003, while defendant “was playing tag with his two 8 year old cousins” he “grabbed” their “private areas.” He was asked “to stop” by the two girls, but “continued to do so,” and told one of the victims, “I am going to rape you.” Later the same night, while the two girls were “lying in adjacent beds,” defendant held their arms and “orally copulated them” through their clothing. The girls cried and screamed, but the acts continued until they managed to push defendant out of the bedroom. The girls reported the incident to one of their mothers the next day, and she contacted the police. When defendant was finally detained and interviewed in August of 2004, he initially “denied any inappropriate behavior” with the two girls. He subsequently acknowledged, “I did it,” meaning “everything that the victims said he did.”
Defendant’s History of Other Criminal Acts and Commitments .
Defendant’s history of criminal misconduct and prior juvenile commitments began on May 8, 2001, when he was adjudged a ward of the juvenile court and committed to the Orin Allen Youth Rehabilitation facility for misdemeanor battery and possession of stolen property.
On May 21, 2002, defendant absconded while placed on juvenile electronic monitoring (JEM) following “a sustained violation for truancy.” He was subsequently arrested and detained for 45 days in juvenile hall.
Defendant’s wardship was continued on March 12, 2003, due to his possession of a firearm, and he was placed on JEM for an additional 60 days. He violated the placement twice by testing positive for marijuana use, which resulted in a weekend commitment to juvenile hall.
Defendant was again committed to the Orin Allen Youth Rehabilitation facility for six months on August 8, 2003. During his commitment, he obtained his GED Certificate. After his release, however, he failed to appear for appointments with his probation officer, attend school, or participate in substance abuse counseling.
On February 2, 2004, a warrant was issued after defendant failed to appear for a Welfare and Institutions Code section 777 hearing. On July 10 of 2004, he failed to appear as ordered before a home supervision officer. His petition was vacated and dismissed five days later.
Defendant was convicted as an adult of an attempted robbery committed after the underlying offenses in the present case. The victim reported that on October 17, 2004, as he left his vehicle and walked into a park in Richmond, defendant approached him along with two other “Black males” and held a gun to his face. While defendant continued to point the gun at the victim, the other two assailants “surrounded” him, forced him to the ground, struck him in the face, and attempted to remove a wallet from his pants’ pocket. The victim managed to regain control of his wallet, whereupon defendant and his two companions ran away. Shortly thereafter, defendant was detained on an “unrelated robbery” while the victim was being interviewed by the police. The victim was then transported to the scene of the detention, where immediately upon observation of defendant he said, “That’s the guy with the gun.” The dispositional report indicates that defendant was convicted of second degree attempted robbery on March 7, 2005, and placed on three years’ probation, with one year in county jail. He was scheduled for release about June 6, 2005.
Defendant admitted chronic marijuana use to his probation officer, beginning at age nine, but denied abuse of any other drugs or alcohol. He professed that he “could quit if he wanted to.” No other “medical or psychological issues” were identified. The dispositional report also recited the extensive criminal history of both of defendant’s parents; neither they nor any other relatives visited defendant during his incarceration in county jail.
The Recommendations in the Dispositional Report .
The dispositional report stated that defendant “can be salvaged,” but only in an “appropriate setting” that addressed “his victimization of others as well as his chronic substance abuse.” The report noted that the probation department had “exhausted” all of its resources in repeated efforts to rehabilitate defendant, without success. Screening of defendant for placement indicated that due to his age, chronic substance abuse, criminal history, need for therapeutic intervention, and the nature his commitment offenses, he was not eligible for a licensed group home, not suitable for out-of-home placement, and no longer an appropriate candidate for placement in an unsecured facility. Defendant was described as a risk to himself, his family and the community. He denied to the probation officer that he “did anything wrong” or posed a danger to his family or the community, and claimed that he “was a victim of false identification.” To promote “the public’s safety” and facilitate defendant’s need for “services and treatment beyond that which the probation department has or can provide,” the report recommended commitment “to the California Youth Authority.” The report also indicated that at a DJJ facility defendant “would have to participate in school, victim impact programs, and weekly small group counseling to address any social issues.”
The Dispositional Hearing Evidence .
The evidence offered at the dispositional hearing focused on defendant’s therapeutic needs and the services available to him at the DJJ. The deputy probation officer who prepared the dispositional report, Clifford Richard, repeated in his testimony at the hearing the recommendation in his dispositional report that defendant needed placement in a facility that would address his “victimization of others” and “chronic substance abuse.” According to Richard, the probation department had “a concern that [defendant] receive sexual-offender counseling” as a component of his commitment.
Richard briefly reiterated defendant’s “prior history” in the juvenile court system: he had been placed at “the Ranch” on at least “two occasions,” where he committed disciplinary violations and was guilty of “frequent AWOLs” after release on parole; he violated probation “numerous” times; he had been unsuccessfully placed in “drug counseling;” he failed to appear as ordered at the home supervision office; and had “been on JEM on numerous occasions” with accompanying violations. Despite the services provided to defendant, his “delinquent activities” nevertheless “increased as he grew older.”
In light of defendant’s history, Richard was concerned for him and “the public at large.” Richard testified that defendant’s “past behaviors have shown that he commits offenses when he is not in custody and that those offenses are against the public.” He offered the opinion that the “public safety” would be compromised if defendant was placed in an unlocked facility, even if he received appropriate therapeutic services there. Further, none of the unlicensed facilities consulted by Richard maintain programs that would meet defendant’s therapeutic needs beyond his 19th birthday.
If defendant was committed to the DJJ, Richard did not know to which facility he would be assigned or which specific programs and services would be available to him. Intake officers at the DJJ did not indicate to Richard that defendant “would definitively receive treatment there in the sexual offender program.” The program is available to a “limited number of persons” and has “a waiting list,” so treatment preference is given to “more serious offenders.” Defendant was also 19 years old, and would be discharged from the DJJ by “his 21st birthday,” so his completion of any sex offender program there was doubtful. Even if defendant was not admitted to a sex offender program, however, Richard indicated that in the DJJ he would be required to participate in school, receive individual and group counseling from youth correctional counselors “dealing with inappropriate sexual behavior,” along with victim impact programs and small group counseling to “address any social issues.” Richard realized that defendant had also received a sentence of one year in county jail followed by three years of formal, supervised probation for a felony grand theft conviction sustained in an adult proceeding on March 7, 2005.
The dispositional report listed the conviction as a second degree attempted robbery offense.
The defense offered testimony from Sandra Tellers, the founder and director of the California Justice Coalition, and an expert on juvenile “fitness and disposition matters,” particularly the DJJ treatment programs. Tellers testified that the DJJ has formal sex offender treatment programs at four of its facilities in the state that accommodate a total of 207 boys. A ward is “either mandated to receive sex-offender treatment” (Welf. & Inst. Code, § 727.6), or is placed in a program following completion of a “60- to 90-day assessment process” that results in a “SORD score” and placement on a “wait list.” Due to lack of funds, the DJJ has “about 800 youth on the waiting list” for the 207 places in the sex offender program. Defendant did not commit a “707(b) offense” that mandates placement in a sexual offender program, and would not be committed beyond his “21st birthday.” The programs typically take from two to four years to complete. Defendant has “less than two years of available confinement time” in the DJJ, and thus “would likely receive a low priority for one of those programs.” Based upon her experience and conversations with the intake officers at the DJJ facilities, Tellers offered her opinion that “it’s very unlikely” defendant would be placed in a sex offender program at the DJJ, although he is qualified and “could benefit” from it. The DJJ has a substance abuse program, but it is not integrated with the sexual offender program.
SORD refers to Sexual Offender Referral Document. The SORD is based on various factors that include: the nature of the offense, number of victims, prior history of the sexual offender, and existence of any sexually abusive behavior.
The trial court agreed that based upon the evidence presented defendant may not receive to formal sex offender treatment at the DJJ, but he would at least “have the opportunity to receive some individual and group counseling.” The court found that defendant “is a danger” to himself, to society, and to his nieces “unless he is locked up.” Alternative, less restrictive placements were considered by the court, but found “inappropriate.” The court also found that defendant can “better benefit from the various programs” provided by the DJJ than other “forms of custody.” Defendant was committed to the DJJ for the maximum period of time of five years, with a recommendation of “giving sexual-offender treatment” to him.
DISCUSSION
The sole claim made in this appeal is that the commitment of defendant to the DJJ was error. Defendant argues that based “on this record . . . there is no competent evidence of probable benefit to [him] from a DJJ commitment.” He maintains that “it was speculation at best” that he will “receive any sexual-offender treatment that the court had identified as one of his rehabilitation needs.” With “no evidence of probable benefit” to defendant from a DJJ commitment, he asserts that the “disposition order must be reversed.”
We review the commitment order in light of the purpose of the juvenile delinquency laws, which “ ‘is twofold: (1) to serve the “best interests” of the delinquent ward by providing care, treatment, and guidance to rehabilitate the ward and “enable him or her to be a law-abiding and productive member of his or her family and the community,” and (2) to “provide for the protection and safety of the public . . . .” ’ (In re Charles G. (2004) 115 Cal.App.4th 608, 614–615 [9 Cal.Rptr.3d 503] [noting also that § 202, subd. (b), authorizes punishment consistent with rehabilitative objectives]; see § 202, subds. (a), (b), (d).)” (In re Schmidt (2006) 143 Cal.App.4th 694, 716; see also In re Antoine D. (2006) 137 Cal.App.4th 1314, 1321–1322.) “To accomplish these purposes, the juvenile court has statutory authority to order delinquent wards to receive ‘care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances. This guidance may include punishment that is consistent with the rehabilitative objectives of [the juvenile court law] . . . .’ [Citation.]” (In re Charles G., supra, at p. 615.) The juvenile courts have “broad discretion to choose probation and/or various forms of custodial confinement in order to hold juveniles accountable for their behavior, and to protect the public.” (In re Eddie M. (2003) 31 Cal.4th 480, 507; see also In re Antoine D., supra, at pp. 1321–1322.)
A commitment to the CYA must be supported by substantial evidence in the record of 1) probable benefit to the minor, and 2) that less restrictive alternatives are ineffective or inappropriate. (In re Aline D. (1975) 14 Cal.3d 557, 566–567; In re George M. (1993) 14 Cal.App.4th 376, 379; In re Teofilio A. (1989) 210 Cal.App.3d 571, 576; In re Ismael A. (1989) 207 Cal.App.3d 911, 918.) The current law, while retaining the best interest of the minor as a commitment consideration, has placed a greater emphasis on punishment as a tool of rehabilitation and a means of protecting the public safety. (In re Domanic B. (1994) 23 Cal.App.4th 366, 372; In re Asean D. (1993) 14 Cal.App.4th 467, 473; In re Michael D. (1987) 188 Cal.App.3d 1392, 1396.) A CYA commitment may not be made for the sole reason that suitable alternatives are unavailable; instead, “the court must be ‘fully satisfied’ that a CYA commitment probably will benefit the minor,” and less restrictive alternatives are unavailable or inappropriate. (In re Aline D., supra, at p. 562; In re George M., supra, at p. 379; In re Tyrone O. (1989) 209 Cal.App.3d 145, 151; In re Jose R. (1983) 148 Cal.App.3d 55, 58.) “The court must find that CYA would likely benefit the ward ([Welf. & Inst. Code,] § 734), and that it otherwise serves the statutory aims.” (In re Eddie M., supra, 31 Cal.4th 480, 488.)
“The appellate court reviews a commitment decision for abuse of discretion . . . . Nonetheless, there must be evidence in the record demonstrating both a probable benefit to the minor by a CYA commitment and the inappropriateness or ineffectiveness of less restrictive alternatives. [Citations.] A CYA commitment may be considered, however, without previous resort to less restrictive placements.” (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396; see also In re Pedro M. (2000) 81 Cal.App.4th 550, 555–556; In re Asean D., supra, 14 Cal.App.4th 467, 473.) “ ‘ “We must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them.” ’ [Citation.]” (In re Robert H. (2002) 96 Cal.App.4th 1317, 1330.)
We commence our analysis by reciting a conclusion that is not earnestly disputed by defendant: the current felony findings along with his unremitting history of criminal behavior and other misconduct thoroughly justified the DJJ commitment. Defendant not only engaged in a succession of criminal acts as a juvenile beginning in May of 2001, but committed an additional serious felony offense as an adult – which involved use of a gun and physical injury to the victim – after the present petition was filed. He repeatedly absconded while placed on JEM, failed to appear for hearings or appointments with juvenile officers, and did not regularly attend school or participate in substance abuse counseling as directed. He violated prior commitments by testing positive for marijuana use, and admitted chronic abuse of marijuana. He also refused to recognize the serious criminality associated with the sexual batteries committed upon his eight-year-old cousins. As the dispositional report specifies, commitment to a licensed group home is unavailable or inappropriate, less restrictive alternatives have failed, and defendant continues to pose a serious danger to society. The DJJ commitment order is necessary for the protection of the public. (See In re Travis W. (2003) 107 Cal.App.4th 368, 379; In re Pedro M., supra, 81 Cal.App.4th 550, 556.)
Defendant’s challenge to the placement order is thus distilled to a complaint that the DJJ fails to offer the rehabilitative programs necessary to benefit him, specifically, placement in a sexual offender treatment program. Although the record before us indicates that defendant will not likely complete treatment in a sexual offender program while committed to a DJJ facility, we nevertheless find adequate evidence of benefit to the minor to sustain the commitment order. Defendant’s individual therapeutic needs are identified in the record: victim awareness therapy to address his dangerous behavior; education; treatment for chronic substance abuse; and placement in a highly structured, locked facility. The finding of benefit to the minor is supported by the statement in the probation report and the testimony of probation officer Richard that in a DJJ facility defendant will at least attend school, receive counseling in victim impact awareness, and participate in individual and small group social skills training, some of which includes “dealing with inappropriate sexual behavior.” With the failure of less restrictive placements, commitment to a locked facility is the only alternative that may serve the objective of rehabilitation. Thus, despite the unlikely availability of placement in a specialized sexual offender program at the DJJ, when the record is reviewed in the light most favorable to the judgment, as it must be, substantial evidence demonstrates that commitment there serves the dual needs of protection of the public and the best interests of the defendant. Commitment to the DJJ in this case was not an abuse of discretion. (In re Angela M., supra, 111 Cal.App.4th 1392, 1397; In re Travis W. supra, 107 Cal.App.4th 368, 379–380; In re Domanic B., supra, 23 Cal.App.4th 366, 374; In re George M., supra, 14 Cal.App.4th 376, 380.)
Accordingly, the judgment is affirmed.
We concur: Marchiano, P. J., Stein, J.