Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. 09CEJ600904-1 Alvin M. Harrell III, Judge.
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J.; Gomes, J.; and Dawson, J.
INTRODUCTION
Appellant J.R. was committed to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ). He challenges this decision as an abuse of discretion. We are not convinced and will affirm.
FACTS
Appellant’s mother operated a home day care. The victim, a nine-year-old boy, was one of the children who attended the day care. In summer 2008, appellant, aged 13, began sexually assaulting the victim. During these assaults, appellant forced the victim to orally copulate him and then appellant sodomized the victim. The victim stated that appellant sexually assaulted him about three times per week.
The victim disclosed the abuse to his mother on July 8, 2009, and she called the police. Appellant was interviewed by police detectives the next day. Appellant admitted that on approximately 15 occasions during the previous year, he would have the victim orally copulate him, masturbate him and then he would sodomize the victim.
On August 5, 2009, a five-count amended juvenile criminal petition was filed alleging that on or about May 1, 2008, until July 8, 2009, appellant committed the following crimes on a victim who was under the age of 14: continuous sexual abuse, forcible oral copulation, sodomy by force, forcible oral copulation and forcible lewd act on a child. (Pen. Code, §§ 288.5; 286, subd. (c)(2); 288a, subd. (c)(2); and 288, subd. (b)(1).)
A negotiated plea agreement was reached. On August 20, 2009, appellant admitted two counts of committing a forcible lewd act on a child under the age of 14 (Pen. Code, § 288, subd. (b)(1).) In exchange, the rest of the counts were dismissed. The People reserved the right to comment and restitution.
On August 31, 2009, the People filed a dispositional statement with the court requesting appellant be committed to the DJJ.
A probation report was filed on September 3, 2009. Appellant admitted engaging in sexual acts with the victim, but minimized his responsibility by stating the victim was never forced to participate and he tried to stop the incidents. The probation officer recommended that appellant undergo a psychological evaluation through Alliant International University (AIU).
Attached to the probation report were letters from the boy’s mother, appellant’s parents, a letter from the victim’s advocate and a letter from a mental health clinician at the Juvenile Justice Campus (JJC). Appellant’s parents rationalized appellant’s behavior by stating the victim misbehaved, initiated contact with appellant and sodomized him. The health clinician recommended placement in a group home for sexual offenders.
The juvenile court ordered an AIU evaluation. A report was produced by an AIU clinician. The clinician concluded appellant was at low to moderate risk for reoffending based on factors such as the absence of prior offenses, lack of education problems, a strong support system and his expression of desire to change. However, the AIU report also stated that risk factors for reoffending were present and must be considered. These factors include appellant’s absence of empathy and remorse for the victim. Appellant blamed the victim for the sexual conduct and said the victim was a willing participant. Appellant said he felt bad about the offense but only because of the negative impact it had on his own family. Other risk factors for reoffending included the absence of appellant’s biological father and past exposure to physical violence in the home. The clinician recommended that appellant be referred to a sex offender treatment program.
On September 23, 2009, an addendum to the probation report was filed. It reported that appellant’s case was screened by two probation services managers for out-of-home placement with probation services and for commitment to the JJC. Appellant was rejected for out-of-home placement through probation services and rejected for a JJC commitment due to the duration and gravity of the sexual abuse. It was determined that appellant’s conduct rendered him an unsuitable candidate for any local custodial program.
Appellant’s case was screened by a DJJ intake officer, who concluded appellant would be a category two offender with parole consideration after four years. Appellant would be placed in a sex offender treatment program for approximately two years.
The probation officer recommended that appellant be committed to the DJJ. The probation officer believed that appellant is in need of long-term custodial commitment. Local custodial sanctions would be inadequate to hold appellant responsible for his actions and local programs could not rehabilitate appellant due to the egregiousness of his offenses. Without strong sanctions and long-term treatment and counseling provided by the DJJ, the community would remain at risk. The counseling and treatment recommended in the AIU report could be accomplished at the DJJ and appellant could continue with his education.
Appellant’s counsel filed a dispositional statement which included a report prepared by a private psychologist hired by the defense. During an interview with this psychologist, appellant once again minimized his responsibility for the sexual assaults by alleging the boy was a willing participant who sometimes initiated sexual activity. The psychologist agreed with defense counsel’s suspicion that an eight- or nine-year-old boy could initiate and seek out inappropriate sexual contact with an older boy. She recommended appellant remain in a secure and monitored environment while attending a comprehensive sexual offender’s treatment program for no less than one year. She suggested the court consider returning appellant to his home with monitoring during the treatment period.
The dispositional hearing was held on September 24, 2009. Appellant was 15 years and two months old at that time. After the arguments of counsel, the victim’s mother and appellant’s stepfather commented.
The victim’s mother spoke of the terrible fear and anxiety the victim suffers on a daily basis. The victim’s world has been shattered. “He feels people will think he is dirty and he is gay.” !(RT 146)! The victim is so traumatized that he cannot even discuss the assaults with his therapist. He does not sleep at night and has terrible nightmares. He misses school. “He truly believes that [appellant] or his family are going to come [and] kill him in his sleep for telling the truth.” !(RT 146-147)!
Appellant’s stepfather stated the victim was already a “troubled” boy when he started attending their day care and “the way he is now, was the way he was then.” !(RT 148)! He discussed the financial losses they have suffered.
The court stated it had reviewed all the documents, reports and recommendations and considered the comments of counsel and other parties. Although the statutory minimum period of confinement was 10 years, the court exercised its discretion to select eight years as the maximum period of confinement (MPC). The court committed appellant to the DJJ for the MPC with credit for 78 days’ confinement.
In explaining the reasons for this decision, the court stated it did not believe the AIU treatment program would be appropriate under the circumstances of this case. Also, it disagreed with the recommendation for home monitoring that was made by defense counsel’s privately retained therapist. The court was concerned by appellant’s absence of empathy for the victim and his lack of remorse. Also, appellant failed to take responsibility for his actions by minimizing the crimes and blaming the victim. The court was deeply disturbed by the fact that the sexual assaults occurred for a full year. The court agreed with the probation officer’s conclusion that all less restrictive local programs and forms of custody were inappropriate and that appellant could benefit from the programs offered at the DJJ.
DISCUSSION
Appellant acknowledges that he was legally eligible for a DJJ commitment because his crimes qualified as Welfare and Institutions Code section 707, subdivision (b) offenses. (Welf. & Inst. Code, § 731, subd. (a).) He challenges the DJJ commitment as an abuse of judicial discretion, arguing there was no evidence of probable benefit to him and that less restrictive alternatives were available and should have been attempted first. We are not persuaded and will affirm.
A DJJ commitment “can only be reversed for abuse of discretion, and in evaluating the evidence and making that determination we must apply the substantial evidence test.” (In re Teofilio A. (1989) 210 Cal.App.3d 571, 579.) We indulge all reasonable inferences in support of the juvenile court’s decision. (In re Asean D. (1992) 14 Cal.App.4th 467, 473.)
“A DJJ commitment is not an abuse of discretion where the evidence demonstrates a probable benefit to the minor from the commitment and less restrictive alternatives would be ineffective or inappropriate. [Citation.]” (In re M.S. (2009) 174 Cal.App.4th 1241, 1250.) “[J]uvenile placements need not follow any particular order … from the least to the most restrictive.” (In re Eddie M. (2003) 31 Cal.4th 480, 507.) The juvenile court is not required to attempt less restrictive alternatives before ordering a DJJ commitment. (In re Asean D., supra, 14 Cal.App.4th at p. 473.) Punishment is a permissible tool of rehabilitation. The juvenile court may consider public safety and protection. (In re Michael D. (1987) 188 Cal.App.3d 1392, 1396.)
The 2007 amendment to Welfare and Institutions Code section 733 did not restrict the juvenile court’s ability to commit an eligible ward the DJJ in the first instance, where the gravity of his offenses are such that less restrictive alternatives would be inappropriate and there is evidence of probable benefit. It only limited the type of minor who was eligible for a DJJ commitment. When, as here, a juvenile is statutorily eligible for a DJJ commitment, the court is not required to first attempt less restrictive placements. Rather, the court is to take into account numerous factors including the minor’s age, the circumstances and gravity of the offense committed by the minor and the minor’s previous criminal history. (Welf. & Inst. Code, § 725.5.) Based on these factors, it is to select the appropriate disposition; a DJJ commitment is one of the options available to the court.
In this case, the record affirmatively demonstrates that the juvenile court considered all of the applicable circumstances, including the nature and duration of the sexual abuse, appellant’s attitude toward his crimes and lack of empathy for the victim, and the observations and recommendations made by the probation department and the psychological experts.
There is substantial evidence supporting the juvenile court’s conclusion that appellant was not suitable for any local custodial program. Given the severity and continued nature of the sexual abuse, appellant’s lack of empathy for the victim, his minimizing of the offense and his parent’s similar attitudes, we agree with the juvenile court that home placement or placement in his grandmother’s home with outpatient sexual offender treatment offered by a program such as AIU would have been inappropriate. Such placement would not have adequately protected the community or held appellant accountable for his crimes. Also, appellant’s case was screened by two probation services managers for out-of-home placement with probation services and for a JJC commitment. Due to the duration and gravity of the sexual abuse, the probation services managers rejected him for out-of-home placement in a group home and also rejected him for JJC commitment. Thus, less restrictive local placements were either unavailable or inappropriate in light of all the circumstances.
There is also evidence of probable benefit to the minor. Appellant’s case was screened by a DJJ intake officer, who concluded appellant would be placed in a sex offender treatment program for approximately two years. Thus, the counseling and treatment recommended by the psychological experts could be accomplished at the DJJ. Also, appellant could continue with his education.
Based on the totality of the circumstances, we hold there is substantial evidence supporting the juvenile court’s determinations of probable benefit to appellant and the inappropriateness of less restrictive alternatives. Under the facts of this case, it was not an abuse of discretion for the juvenile court to commit appellant to the DJJ without first attempting less restrictive alternative placements. Thus, appellant’s challenge to the DJJ commitment fails.
DISPOSITION
The judgment is affirmed.