Opinion
A119661
9-3-2008
In re T.H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. T.H., Defendant and Appellant.
Not to be Published
T.H. appeals from a dispositional order entered after a Welfare and Institutions Code section 602 petition was sustained alleging that he committed felony acts of lewd conduct upon a child. Appellant contends the order must be reversed because (1) there was insufficient evidence that he appreciated the wrongfulness of the charged acts or had the requisite criminal intent, (2) his counsel provided ineffective assistance at trial, and (3) the juvenile court abused its discretion in ordering him placed outside of his home. We find no merit in appellants contentions and affirm the juvenile courts order.
I. BACKGROUND
A Welfare and Institutions Code section 602 petition alleged that appellant committed two felony counts of a lewd act upon a child (Pen. Code, § 288, subd. (a)). After a contested hearing in October 2007, the juvenile court sustained the petition on both counts.
A. Prosecution Case
R.M., a second-grader, testified that she had lived with her grandmother, since she was about two years old. R. testified that sometime during that time, while she was at her grandmothers house, her cousin T. touched her. He no longer lived there. When R. was asked to identify T. in court she initially denied knowing him. Later, on cross-examination, she said that she did know T.
R. testified that appellant touched her "[u]nder [her] undies," with his hand on her "[p]rivate." When she was six and in the first grade appellant stuck his middle finger inside her "private" on two separate days. The penetrations hurt her. R. told appellant to stop each time he penetrated her and both times he stopped right away. R. said that her 10-year-old cousin, C., was there when appellant touched her.
For reasons not explained in the record, C. was not called to testify by either side.
R. first told her adult neighbor, Melinda S., about appellants touching because Melinda was her "best friend." She told Melinda because she knew what appellant did to her was wrong and she was "mad" that he touched her.
On cross-examination, R. first stated that no one else was in the room during the touching, but then repeated that C. was in the room at the time. She said the touching occurred at her grandmothers house in the bedroom "outside of the shop." She testified that the events occurred about two days prior to the hearing, but not on the same day. On redirect she testified that the events happened "a way last year," and later said they happened before she was in second grade.
Detective Fleshman interviewed R. on the night of August 31, 2007. R. was very communicative and not crying, but Fleshman was unable to pin down the timing of events with her. When Fleshman asked her if it happened around the Fourth of July, she said, "Yes." After interviewing R., Fleshman went immediately to Melindas residence and interviewed appellant, who was spending the night with Melindas son. Fleshman woke appellant and took him outside to talk. Fleshman told appellant that R. had accused him of placing his fingers inside her vagina and asked him whether he did it. He initially denied it, saying "he wouldnt do that because that would be wrong." After some further discussion, appellant acknowledged that "a few years ago he had been curious about the female body so he had [R.] get up on a bed and placed his fingers in her vagina." Appellant said this occurred in the part of the garage that had been converted into his bedroom. Appellant eventually told Fleshman it happened "four or five times . . . one year ago." When Fleshman handcuffed appellant, he started to cry and said he was sorry and did not want to hurt anyone.
Melinda testified that R. and appellant often came over to her house to play with her children. Melinda said they were spending the night at her house in late August 2007, when R. told her that appellant was touching her. R. was crying, shaking, and upset when she spoke to Melinda. She told Melinda, "[T.] has been touching me under my underwear and I tell him to stop and he wont." R. said it had happened three or four times in the bunk beds in appellants room. She told Melinda that she had bumps all over her legs, he gave her bumps, and all the kids in the neighborhood were teasing her because of it. Melinda saw that R. had red bumps on the inner thighs of both legs. She knew that R. had seen a doctor about the bumps. She immediately took R. to the police station.
Melindas testimony was admitted subject to a motion to strike. (See discussion, post.)
R.s mother testified that appellant had a rash on both of his hands in August 2007. He had had the rash for about a year prior to August 2007. At some point during that period, R. developed a rash on her inner thighs that resembled appellants rash. R.s grandmother took her to a doctor in March or April 2007. The doctor said R.s rash was warts.
B. Defense Case
Appellant testified that he turned 13 years old in June 2007. On August 31, 2007, he was sleeping on the couch at the Melindas house when Detective Fleshman woke him and started questioning him about touching R. He told Fleshman he did not touch R. or do anything sexual with her. Fleshman accused him of lying because everyone else was saying he did it. Fleshman would not believe him and kept accusing him so appellant just started agreeing with him. He admitted touching R. only because of Fleshmans threats that he would "throw me away for a long time."
What actually happened was that two or three years ago, when he was 9 or 10 years old, he had looked at R.s private part; he did not touch her. He asked her if he could look, she said yes, and pulled down her own clothing. This happened once or twice at the most. He wanted to learn about the female body.
He did not tell Fleshman about this because Fleshman only asked him if he touched R., not if he looked, and Fleshman kept on accusing him. At that time, he did not know that it was wrong. His grandmother walks around the house without any clothes on and has been doing it since he was about 11 years old.
Appellant testified that he does not like R. or her siblings so he beats them up. He picks on them, pokes them, and slugs them. R. had a reason to lie to get even with him for beating up on her. When appellant told Fleshman he was sorry, he meant that he was sorry that he had looked at R. and sorry he was going to juvenile hall. When he was 9 or 10, he did not know that it was bad to look at her "private area."
Appellant did not have warts on his hands. The rash he had on his hands from time to time was caused by an allergic reaction to bleach or certain soaps. When he spoke to Detective Fleshman, appellant did not have a rash on his hands and had not had a rash since approximately the middle of the 2006-2007 school year.
C. Disposition and Appeal
The juvenile court ordered appellant removed from his guardians custody and placed in a group home for sex offenders, with review of the order in six months. This timely appeal followed.
II. DISCUSSION
Appellant maintains that the adjudication and order declaring him a ward of the court and placing him in a group home must be reversed because (1) the evidence was insufficient to permit a finding that he appreciated the wrongfulness of the charged acts or had the requisite criminal intent; (2) his counsel provided ineffective assistance by failing to object to irrelevant and inflammatory evidence, to hearsay evidence regarding R.s statements to Melinda, or to the prosecutors arguments based on such evidence; and (3) the juvenile court abused its discretion in ordering him placed outside of his home.
A. Sufficiency of the Evidence
1. Wrongfulness
Penal Code section 26 provides in relevant part: "All persons are capable of committing crimes except those belonging to the following classes: [¶] One—Children under the age of 14, in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness."
Penal Code section 26 is applicable to proceedings under Welfare and Institutions Code section 602. (In re Manuel L. (1994) 7 Cal.4th 229, 232.) "Penal Code section 26 articulates a presumption that a minor under the age of 14 is incapable of committing a crime. [Citation.] To defeat the presumption, the People must show by `clear proof that at the time the minor committed the charged act, he or she knew of its wrongfulness." (Id. at pp. 231-232, fn. omitted.) "Clear proof" under Penal Code section 26 means clear and convincing evidence that the minor appreciated the wrongfulness of the charged conduct when it was committed. (In re Manuel L., at p. 232.)
On appeal from an adjudication that a minor is a ward of the court under Welfare and Institutions Code section 602, the issue presented is whether substantial evidence supports the juvenile courts determination that the minor appreciated the wrongfulness of his conduct: "On appeal, we must review the whole record in the light most favorable to the judgment and affirm the trial courts finding[] that the minor understood the wrongfulness of his conduct if [it is] supported by `substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof. " (In re James B. (2003) 109 Cal.App.4th 862, 872.) In determining whether the minor appreciates the wrongfulness of his conduct, the court may rely on circumstantial evidence such as the minors age, experience, and understanding, as well as the circumstances of the offense. (Ibid.)
In this case, the record does contain substantial evidence from which a reasonable trier of fact could have found "clear proof" that appellant appreciated the wrongfulness of the charged conduct at the time he committed it. Detective Fleshman testified that when appellant initially denied to him that he had touched R., appellant said words to the effect that he "wouldnt do that because that would be wrong." Later, when Fleshman handcuffed him, appellant said he was "very sorry for what hed done" and that he "didnt want to hurt anybody." On direct examination, appellant testified that, looking back on it now (having just turned 13), he knew that it had been wrong to look at R.s "private parts" when he was 9 or 10, even though he did not know it then. It may be reasonably inferred from this admission that appellant would have also known—throughout the year preceding his testimony—that it was wrong to touch R.s "private parts." On cross-examination, when he was asked about his statement to Fleshman that he had been "looking" at his cousin, appellant testified as follows: "Yeah, [Fleshman] said, `Penetrating the vagina area, which is not allowed, have sex. I didnt do that. I looked." This reinforces the inference that appellant understood there was a clear dividing line between looking and touching, and that touching was not allowed and was tantamount to having sex.
Further, during the interview with Fleshman, appellant first denied any touching occurred, then admitted the touching but tried to minimize it by claiming he had not forced R., and that it had occurred years ago. Appellants false and conflicting statements to police about what occurred also support the inference that he knew touching R. was wrong. (People v. Lewis (2001) 26 Cal.4th 334, 379 [conflicting statements to detectives support an inference that defendant knew the wrongfulness of his act].)
Appellant stresses that there was no evidence as to his age at the time of the charged acts. However, R. told Fleshman the touching happened around the Fourth of July holiday. Also, R. was crying and upset when she reported to Melinda on August 31, 2007, that appellant had been touching her. Given her young age and poor sense of time, it seems reasonable to infer that R. either would not have remembered or would not have still been emotional about appellant touching her if that conduct had ceased two or three years earlier. The evidence supports a reasonable inference that one or more of the incidents occurred within a few months of appellants arrest and that he was old enough at that point in time to appreciate the wrongfulness of his conduct.
2. Intent
Penal Code section 288, subdivision (a) provides in relevant part: "Any person who willfully and lewdly commits any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony . . . ." (Italics added.) The violation of section 288, subdivision (a) thus requires the specific intent to arouse the sexual desires of either the perpetrator or the victim. (People v. Martinez (1995) 11 Cal.4th 434, 444, 452.) Appellant claims there was no evidence that he had such specific intent. We are not persuaded.
In our view, appellants admission to Fleshman that he penetrated R. four or five times negates his claim that he was motivated by his curiosity about female anatomy and supports an inference that he acted for his own sexual gratification. This inference is strengthened by the fact that appellant was old enough when the acts occurred, 12 or 13 years old, that he was capable of sexual arousal. (See In re Jerry M. (1997) 59 Cal.App.4th 289, 299-300 [minors age is a factor in deciding whether he has the specific intent required by Pen. Code § 288, subd. (a)].) Further, as noted earlier, appellant had an understanding that penetrating the vagina was a sex act, as shown by his earlier-cited testimony when he was asked on cross-examination about his statement to Fleshman that he had only looked at R.s vagina.
The juvenile courts finding that appellant had the requisite special intent is supported by substantial evidence.
B. Ineffective Assistance
Appellant argues that he was deprived of his right to effective assistance of counsel because his trial attorney did not (1) object to testimony and prosecutorial argument regarding the skin conditions Melinda and R.s mother assertedly observed on R. and appellant, or (2) move to strike Melindas testimony that R. told her the touching had happened three or four times over an undetermined time.
1. Legal Standard
The right to effective assistance of counsel is guaranteed by both the federal and California constitutions. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) Defendant has the burden of rebutting, by a preponderance of the evidence, a presumption that he received effective assistance. (People v. Garrison (1989) 47 Cal.3d 746, 788.) "The claim of ineffective assistance of counsel involves two components, a showing the counsels performance was deficient and proof of actual prejudice." (Id. at p. 786; People v. Ledesma, at pp. 216-217.)
To be deficient, counsels performance must have fallen " `below an objective standard of reasonableness . . . under prevailing professional norms. [Citations.]" (People v. Ledesma, supra, 43 Cal.3d at p. 216.) In applying this prong of the test, courts must exercise deferential scrutiny so as to avoid the dangers of "second-guessing." (Ibid.) Further, prejudice must be affirmatively proved. " `The defendant must show that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. " (Id. at pp. 217-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (In re Sixto (1989) 48 Cal.3d 1247, 1257.)
2. Skin Condition Testimony
In appellants view, there was no reasonable tactical reason for counsel to fail to object when (1) Melinda testified that R. told her the kids in the neighborhood were teasing her about bumps on her legs and saying appellant had given them to her; (2) R.s mother testified that R. had a rash or bumps on her inner thighs around March or April, that she noticed the same kinds of bumps or rash on appellants hands a year before August 2007, and that the doctor had told R.s grandmother that the bumps were warts; and (3) the prosecutor argued that R. and appellant had the same skin rash, supporting an inference bolstering R.s testimony and showing that appellant committed the acts during the time he had the rash.
In our view, an objection to Melindas testimony regarding R.s comment about the bumps on her legs would have been futile or counterproductive. Melinda herself observed red bumps all up and down R.s inner thighs (and so testified under questioning by the court). Had appellants counsel objected to allowing Melinda to testify to R.s statement about what the neighborhood kids allegedly were saying, the prosecution would have simply argued, correctly, that the testimony was admissible not for its truth but as foundational evidence to explain the circumstances of Melindas own observations. (See People v. Carpenter (1999) 21 Cal.4th 1016, 1049; People v. Mitchell (2005) 131 Cal.App.4th 1210, 1224.) There is no reason to believe that the court accepted R.s or the neighborhood kids statements about the bumps for their truth or gave them any probative weight whatsoever on that basis. In any event, for the reasons discussed below, appellant failed to meet his burden of proving that but for defense counsels failure to object to this or other evidence concerning his and R.s skin rashes, the result of the proceeding would have been different.
The testimony of R.s mother that she observed bumps on R.s legs and these bumps were "[b]asically the same kind of bumps that [she observed] on [appellants] hands" was also not objectionable. Evidence Code section 800 allows such lay opinion testimony when based on the witnesss direct observations. (See People v. Maglaya (2003) 112 Cal.App.4th 1604, 1608-1609 [shoeprint comparison is proper subject of lay opinion testimony]; House v. Pacific Greyhound Lines (1939) 35 Cal.App.2d 336, 338, disapproved on other grounds by Fuentes v. Tucker (1947) 31 Cal.2d 1 [same regarding fabric comparison].) The court could give such testimony the weight to which it was entitled or reject it outright. (See CALJIC No. 2.81.)
Evidence Code section 800 provides: "If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: [¶] (a) Rationally based on the perception of the witness; and [¶] (b) Helpful to a clear understanding of his testimony."
In addition, the court inadvertently elicited a double-hearsay response when it asked R.s mother whether she knew what the rash was. She responded: "The . . . United Indian Health Services told my mom that . . . they were warts." Appellant complains that his trial counsel made no objection to or motion to strike this testimony. Assuming there was no reasonable tactical reason for counsel to fail to object, we would find the omission to be harmless in this case. The trial court did not mention or refer to any of the evidence regarding R.s or appellants skin conditions in explaining why it was sustaining the petition. There is certainly no reason to believe that the decision was affected by double-hearsay testimony about what a doctor allegedly told R.s grandmother on the subject. Instead, the record shows that the court relied on R.s testimony about what appellant did, which did not mention the skin rashes, and especially on appellants admissions to Detective Fleshman in the face of these accusations, that the incidents had in fact occurred.
As noted earlier, appellant testified that his rash was not warts but a skin allergy.
The court stated: "He told the detective it happened. . . . I think . . . theres enough reason to believe that he would not have admitted that if it were not true in the face of that accusation and his knowing that . . . the police were there and they were investigating . . . ."
The prosecutors argument regarding the skin rashes, although it had no apparent effect on the court, was proper. His comments were within the scope of the evidence presented, including reasonable inferences or deductions drawn from it. (See People v. Mendoza (2000) 24 Cal.4th 130, 172.) In any event, because the court did not rely on the evidence or argument concerning skin rashes, there is no basis to conclude that any assumed deficiency on defense counsels part in failing to object to it affected the outcome of the proceeding.
3. Failing to Move to Strike
After initially establishing that Melinda was R.s neighbor and that R. and her brothers and sisters were frequently at Melindas house, the prosecutor asked Melinda to describe the circumstances that caused her to call the police sometime in August. Melinda began to explain the events leading up to her conversation with R. on the evening she called the police. When she started to recount a conversation with her son, appellants trial counsel immediately interjected that he would "object to any hearsay statements." A lengthy colloquy followed between counsel and the court over whether Melindas anticipated testimony about R.s statements to her would be admissible under any theory. The prosecution claimed the testimony would be admissible as "a prior consistent or inconsistent statement as to [R.]," and to "describe [R.s] demeanor and composure at the disclosure time." The prosecutor explained that the statements to Melinda would contradict R.s testimony in cross-examination that the incidents occurred "a couple of days ago." The court expressed skepticism about the prosecutions prior inconsistent statement theory, but never specifically ruled on it. The prosecution also argued that the testimony would be relevant to refute a claim of recent fabrication, a theory to which the court seemed more sympathetic. Ultimately, noting that Melindas testimony had not yet been heard, defense counsel proposed that Melinda be allowed to proceed with her testimony subject to a motion to strike, and the court so ordered. Defense counsel thereafter made no motion to strike Melindas testimony about R.s statements to her.
The People argue that Melindas testimony was admissible under the "fresh complaint" doctrine and would have withstood a defense motion to strike. The Supreme Court explained the doctrine and spelled out some of its modern parameters as follows: "[P]roof of an extrajudicial complaint, made by the victim of a sexual offense, disclosing the alleged assault, may be admissible for a limited, nonhearsay purpose—namely, to establish the fact of, and the circumstances surrounding, the victims disclosure of the assault to others—whenever the fact that the disclosure was made and the circumstances under which it was made are relevant to the trier of facts determination as to whether the offense occurred. Under such generally applicable evidentiary rules, the timing of a complaint (e.g., whether it was made promptly after the incident or, rather, at a later date) and the circumstances under which it was made (e.g., whether it was volunteered spontaneously or, instead, was made only in response to the inquiry of another person) are not necessarily determinative of the admissibility of evidence of the complaint. Thus, the `freshness of a complaint, and the `volunteered nature of the complaint, should not be viewed as essential prerequisites to the admissibility of such evidence." (People v. Brown (1994) 8 Cal.4th 746, 749-750 (Brown).) The Brown court further stated, "so long as the evidence in question is admitted for the nonhearsay purpose of establishing the circumstances under which the victim reported the offense to others, such evidence ordinarily would be relevant under generally applicable rules of evidence, and therefore admissible, so long as its probative value outweighs its prejudicial effect." (Id. at pp. 759-760, italics added.)
At the same time, however, the Brown opinion places limits on the type of testimony that may be admitted under the fresh complaint doctrine: "[E]vidence of the victims report or disclosure of the alleged offense should be limited to the fact of the making of the complaint and other circumstances material to this limited purpose." (Brown, supra, 8 Cal.4th at p. 763.) This limitation is required in order to "eliminat[e] or at least minimiz[e] the risk that the jury will rely upon the evidence for an impermissible hearsay purpose"—i.e., "as tending to prove the truth of the underlying [sexual offense] charge." ( Id. at pp. 762, 763.)
Melindas testimony concerning R.s complaint was limited to R.s statements that appellant had been touching her under her underwear, that she had told him to stop and he would not, and that it happened three or four times in his room. The statement that appellant had been touching R. under her underwear clearly falls within the fresh complaint doctrine. (Cf. People v. Burton (1961) 55 Cal.2d 328, 337, 351 [testimony that the victims stepfather " `made me play with his peter " was permissible as a statement of the fact of molestation].) While R.s statements recounting that she told him to stop, and identifying the number and location of the molestations, do go beyond the scope of the fresh complaint doctrine, appellant fails to demonstrate that counsels omission to have that testimony stricken was prejudicial. Whether R. told appellant to stop was immaterial to the offenses alleged. The exact number of molestations was also not in issue. Appellant denied molesting R. outright; he was making no claim that only one molestation occurred. More importantly, there was direct evidence from R. and an admission from appellant that there had been multiple molestations. Counsels failure to have Melindas passing reference to this point stricken could not reasonably have affected the outcome.
As noted earlier, Melindas testimony about R.s rash was admissible on other grounds. Appellant implicitly concedes that Melinda could testify about her perceptions of R.s emotional state.
Appellant fails to show that he is entitled to a reversal based on his ineffective assistance of counsel claims.
C. Out of Home Placement
Appellant argues that the court abused its discretion in ordering him to be placed outside his home.
Prior to the disposition hearing, the court granted appellants unopposed request to be released to his paternal aunt and uncle in Humboldt County. This placement was maintained at the conclusion of the jurisdictional hearing on October 4, 2007.
The probation department interviewed appellant and his aunt, uncle, mother, father, and grandmother for its disposition report. Appellant had been exposed to domestic violence against his mother as well as violence by his mother, and suffered physical abuse and neglect himself. Appellants father stated that he did not have frequent contact with appellant. Appellants grandmother, who had been his legal guardian for a long period of time, had been taking appellant to counseling and reported that the counselor believed appellant was "disturbed." According to his grandmother, "all he would speak about in counseling sessions was wanting to join the army to kill people." Grandmother explained that her family had a "history of sexual abuse and incest" and she did not want to see appellant continue on this path. She also stated that appellants violent behavior caused her to make him sleep in the converted garage. Appellant and his paternal aunt and uncle concurred that he was doing well in his placement with them, was responsive to his aunt and uncles direction, and was interacting well with others at home and school. The aunt and uncle wanted appellant to stay in their household while undergoing treatment. Appellant asked to be placed with a relative instead of a group home.
The probation department recommended as follows: "It is recommended that the minor receive sex-offender treatment, anger management, and mental health counseling in order to resolve his current issues. [¶] The minor has been subject to inconsistency regarding his living situation and rules, and it would be more beneficial to the minor to remain in a structured atmosphere. It is recommended the minor complete his recommended therapies in a group home specialized for sex offender treatment prior to possible return to his current temporary guardians. Their influence on the minor has affected him positively, and re-placing the minor with his aunt and uncle will likely better rehabilitate the minor."
The juvenile court stated that its highest priority was protection of the public and that the best and most thorough program to address appellants issues would be a residential treatment program for sex offenders. The program proposed by the probation department and approved by the court was estimated to last approximately one year, depending on the minors counseling needs.
A juvenile courts commitment order is reviewed for abuse of discretion, and we must indulge all reasonable inferences to support the decision. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) We will not disturb the juvenile courts findings when there is substantial evidence to support them. (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.) To ascertain if the decision is supported by substantial evidence, we examine the record presented at the dispositional hearing in light of the purposes of the juvenile law. (Ibid.) The juvenile court law states in relevant part: "The purpose of this chapter is to provide for the protection and safety of the public and each minor under the jurisdiction of the juvenile court and to preserve and strengthen the minors family ties whenever possible, removing the minor from the custody of his or her parents only when necessary for his or her welfare or for the safety and protection of the public." (Welf. & Inst. Code, § 202, subd. (a).)
We find no abuse of discretion in the courts decision. The allegations sustained at trial did not involve only minor or isolated acts. They were indicative of a potentially serious sexual disturbance that, without intervention, was likely to pose a greater risk to the public as appellant got older. Appellants persistence in denying the molestations and the violent tendencies that he had been exhibiting multiplied the threat. It is significant that he admitted he had been hitting R. for years, although she was half his age. The evidence of abuse and neglect in appellants family history was also noteworthy. These multiple warning signs demanded a plan that involved intensive therapy and intervention, both in the interests of appellant and the public. Further, the court was fully justified in reacting cautiously to appellants uncle and aunts assurances that "they would be the first people to call the authorities if anything inappropriate was occurring." Appellants conduct had ultimately been brought to the attention of authorities by a nonfamily member and there was good reason to assume that family members would be reluctant to expose appellant to further legal jeopardy. Given all of these circumstances, and the probation departments recommendation, the juvenile court was not constrained to order a less restrictive commitment for appellant. The fact that appellant had been allowed to stay with his aunt and uncle (under close supervision) in the brief period leading up to the disposition hearing did not mandate that this arrangement continue after disposition.
We also reject appellants claim that the probation department failed to make appropriate inquiries about outpatient treatment. The department based its recommendation for residential treatment on two factors: (1) due to the "array of mental health issues" presented in his case, appellant required "intensive therapy"; and (2) after years of "inconsistency regarding his living situation and rules," appellant would benefit from a "structured atmosphere." Having reasonably concluded from its investigation that a residential treatment program (followed by re-placement in his aunt and uncles custody) would be maximally beneficial for appellant, the department was not compelled to compile information about outpatient treatment.
III. DISPOSITION
The judgment is affirmed.
We concur:
Marchiano, P.J.
Swager, J.