Opinion
F074338
06-27-2017
In re ANGEL R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ANGEL R., Defendant and Appellant.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer L. Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JJD065234)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Anthony Fultz, Judge. Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer L. Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Poochigian, J. and Detjen, J.
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INTRODUCTION
Appellant Angel R. is the subject of a Welfare and Institutions Code section 602 petition, wherein he admitted to four counts of lewd acts upon a child (Pen. Code, § 288, subd. (a)). After numerous local placements over the course of five years, the juvenile court ordered Angel committed to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ) and to register as a sex offender. Angel contends the juvenile court abused its discretion in committing him to DJJ and ordering him to register as a sex offender. We disagree and affirm.
References to code sections are to the Welfare and Institutions Code unless otherwise specified. --------
FACTUAL AND PROCEDURAL SUMMARY
The Tulare County District Attorney filed a juvenile wardship petition pursuant to section 602, subdivision (a), alleging Angel committed continuous sexual abuse of a child, and lewd acts upon a child. It was alleged there were two child victims; Angel's six-year-old brother J.R., and Angel's seven-year-old female cousin E.G.
Angel admitted the four counts of lewd acts with a child; the remaining count was dismissed. The juvenile court adjudged Angel a ward of the court and ordered him retained in juvenile hall pending an appropriate placement.
The probation report noted that Angel previously had been found to be in possession of marijuana on school grounds; he was counseled and released. Angel's mother reported that Angel would leave home and not return at curfew; sometimes he did not return until 12:00 a.m. Angel was having disciplinary problems at school; he would not complete his work and would walk out of classes. The probation officer reported that Angel placed blame for the sexual abuse of the young victims on the victims.
The probation officer recommended that Angel be removed from the custody of his parents and placed on probation. It also was recommended that Angel be placed in a local setting where he could be provided with sex offender treatment. An additional recommendation was that Angel's family participate in counseling.
On June 2, 2011, Angel was placed in the Progressive Group Home. His performance in the group home was "acceptable," but he was engaging in disruptive behaviors at school. By December 2011, Angel had excessive absences and tardies at school; was not completing assignments; and had a C in one class, with the other classes showing below average and failing grades.
On February 3, 2012, Angel was placed in the Success in Recovery Group Home. The 30-day report submitted on Angel's placement noted that he initially was compliant, but quickly digressed. Angel was engaging in many alarming behaviors, including sexually grooming his peers, provoking his peers toward violence, and constantly avoiding responsibility for his actions. Angel had been attending sexual offender treatment, but as of March 2012 took no responsibility for his sexual offenses; rationalized the abuse of his victims; and showed no remorse for his actions or the victims.
The 30-day assessment of Angel concluded his "major way of functioning is to exploit circumstances and others." Angel was found to be "manipulative" with "relationship skills" that were "destructive." Angel admitted he had not revealed all of his sexual behaviors and would re-offend if given the opportunity. The group home was of the opinion Angel was at high risk to re-offend.
Two years later, in March 2014, Success in Recovery reported Angel still was at a moderate to high risk to re-offend. However, on May 28, 2014, Angel was released to his grandmother with the agreement he would reside with an aunt and uncle; he was still on probation.
On August 26, 2014, the aunt contacted probation because Angel had not attended school on two days. Probation attempted to contact Angel at school on September 5 and 12, but he was absent. Angel was receiving F's in all his classes except one, frequently absent, and leaving school without permission.
On October 27, 2014, the probation department filed a notice of probation violation. Angel was not attending school on a regular basis, failed to follow his caregivers' directives, and had sent a student a picture of a gun stating he wanted to retaliate against another student. Angel eventually admitted the probation violation.
At a December 2, 2014, placement hearing, the People expressed concern about Angel being placed in another group home. The People opined that "We're shuffling him around at this point" and "essentially, there is no consequence for anything he's done and there is no change." Angel "didn't make it through the counseling" and had "terrible grades." The People suggested Angel should "just stay" at juvenile hall.
The juvenile court stated it did not "disagree" with the People; however, it wanted to see if an appropriate placement could be found that was less restrictive. The trial court notified Angel that if no appropriate local placement was found, it would "reconsider" commitment to a "custodial program." Angel was ordered to attend school regularly, not use or possess alcohol or any controlled substances, comply with curfews, not possess any weapons, and attend sex offender treatment.
On December 18, 2014, Angel was placed at Pride Ranch Group Home. His behavior at Pride Ranch was unacceptable; he left the group home without permission, twice, not returning for several hours; smoked marijuana; and engaged in inappropriate behavior with another resident. Pride Ranch refused to take Angel back the second time he left without permission.
On February 6, 2015, the probation department filed a second notice of violation against Angel, asserting he failed to comply with the terms of probation by leaving the group home for extended periods without permission. Angel admitted the probation violation.
Angel next was placed in Sweeney Group Home on April 30, 2015. At the time of this placement, the juvenile court stated the probation department wanted to continue to try and work with Angel in a noncustodial setting, but "if there isn't a suitable placement that he may be looking at custodial time."
On June 19, 2015, around 1:30 a.m., Angel ran away from Sweeney with three other residents. He was located much later that day by a sheriff's deputy. Angel had a lighter and cigar in his possession at the time. He stated he was heading to Dinuba.
Probation officers met with Angel's therapists on July 1, 2015. The therapists reported that Angel's behavior had deteriorated and he was "manipulating other residents which was negatively affecting the rest of the residents." On July 3, Angel was in a physical altercation with another resident. On July 29, the therapists reported Angel was seeking attention from female staff, manipulating other residents, engaging in inappropriate conversations, and glorifying his past criminal behavior.
In August 2015, Angel tested positive for marijuana. On August 31, he ran away from school and the group manager; he was not located until September 21, 2015. The probation department filed a third notice of probation violation on September 2, 2015.
Angel admitted the third probation violation and stated he "did not care" if he violated his probation. He admitted to using alcohol, marijuana, heroin, and methamphetamine when he ran away from Sweeney. The probation department noted that Angel was aware "he is about to exhaust" all local service options. In the opinion of the probation department, Angel continued to be at high risk for running away from placements.
The juvenile court next placed Angel at Martin's Achievement Group Home on October 29, 2015. The juvenile court told Angel that unless he wanted to "end up doing a significant amount of time in a custodial program" he needed to "make it work in the group home type of environment."
At Martin's, Angel tested positive for marijuana, received about 30 incident reports, displayed inappropriate boundaries by making sexual comments, refused to follow directives, and made gang comments toward other residents. In January 2016, Angel ran away from Martin's and the group home terminated his placement.
A fourth probation violation notice was filed on January 26, 2016. Angel's whereabouts were unknown, until it was discovered he was living with his mother in Dinuba. He was taken into custody on February 19, 2016. At this time, Angel admitted using marijuana, codeine, cocaine, and Xanax, and to being a member of a criminal street gang.
This time, the probation department recommended a commitment to DJJ, however, the juvenile court placed Angel in Tulare County's long-term program for a period of 240 to 365 days. The juvenile court warned that Angel needed to be in compliance with the rules of his placement and if not, the next step would be a commitment to DJJ.
Angel did not remain in compliance and engaged in physical altercations, possession of contraband, displaying gang behavior and disrespecting staff. On June 27, 2016, the probation department filed a fifth notice of violation of probation and again recommended placement in DJJ. Angel admitted the violation.
At the August 16, 2016 disposition hearing following the fifth probation violation, defense counsel argued for a continued local placement. The juvenile court stated that Angel had failed to complete any sex offender treatment program, absconded numerous times from local placements, engaged in physical altercations, had joined a gang, used illegal substances, and had a high risk of re-offending. The juvenile court opined that Angel needed "the structured environment that is going to present him with the tools that will be necessary to be successful in his future and be free from the triggers that will reoffend in a sexual nature." The juvenile court found DJJ to be an appropriate placement for Angel and ordered him to register pursuant to Penal Code section 290.
Angel was committed to DJJ for a maximum period of 14 years. Angel appealed.
DISCUSSION
Angel contends the juvenile court abused its discretion when it committed him to DJJ because a less restrictive and appropriate alternative placement was available, the Tulare County long-term program. He also contends it was an abuse of discretion to order him to register as a sex offender.
Standard of Review and Applicable Law
"We review a juvenile court's commitment decision for abuse of discretion, indulging all reasonable inferences to support its decision." (In re Antoine D. (2006) 137 Cal.App.4th 1314, 1320.) "When the question on appeal is whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion. An appellate tribunal is not authorized to substitute its judgment for that of the trial judge. [Citation.]" (People v. Stewart (1985) 171 Cal.App.3d 59, 65; see In re Todd W. (1979) 96 Cal.App.3d 408, 416.) Rather, the standard "asks in substance whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts [citations]." (People v. Williams (1998) 17 Cal.4th 148, 162.)
Commitment to DJJ will be upheld "where the evidence demonstrates a probable benefit to the minor from the commitment and less restrictive alternatives would be ineffective or inappropriate." (In re M.S. (2009) 174 Cal.App.4th 1241, 1250.) The juvenile court need not make explicit findings on the record, provided substantial evidence in the record supports its disposition. (In re Ricky H. (1981) 30 Cal.3d 176, 184.)
In following the statutory scheme, "the court has 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.) Thus, there is no requirement to proceed from the least restrictive to the most restrictive placement, and a court does not necessarily abuse its discretion if it orders the most restrictive placement first. (Ibid.)
Analysis
In order for a minor to be statutorily eligible for a commitment to DJJ, his or her most recent offense must be listed in subdivision (b) of section 707. (§ 733, subd. (c); see In re D.B. (2014) 58 Cal.4th 941, 944.) The most recent offense is that which was most recently sustained in a juvenile wardship petition filed under section 602, not a probation violation under section 777. (In re D.J. (2010) 185 Cal.App.4th 278, 285-286.) Angel admitted committing lewd acts on two different minors, all violations of Penal Code section 288, subdivision (a), that were the basis of the sustained section 602 petition and made him eligible for DJJ commitment. (§ 733, subd. (c).) Thus, he falls within the group of juvenile offenders deemed most serious by the Legislature and a candidate for DJJ commitment.
Angel was placed with relatives, in five different group homes, and then in the long-term program. None of the local placements were effective in addressing his behaviors or providing rehabilitation; he failed to complete sex offender treatment, absconded from all of the placements; refused to attend school regularly; began using illegal substances and joined a gang. He engaged in inappropriate behaviors with other residents of the group homes and failed to take responsibility for his criminal conduct.
At the time of his commitment to DJJ, Angel was about two months away from his 18th birthday and had been on probation in various settings for five years. If Angel continued to engage in criminal behavior, it would result in an adult criminal record and possible prison term. As the juvenile court stated, commitment in a secure facility such as DJJ would assist in Angel's rehabilitation by placing him in a location which impresses upon him the seriousness of his conduct and which prevents flight.
Although there was no specific evidence presented regarding potential benefits from programs available at DJJ, Angel will benefit from DJJ placement regardless of the programs. Angel incurred five probation violations, failed to conform to the rules of his placements, and ran away from unsecured group homes. Here, as in In re Jonathan T. (2008) 166 Cal.App.4th 474, Angel will "benefit from commitment to DJJ, in part, because it will provide him with a secure environment. In other words, it is not merely the programs at DJJ which provide a benefit to minor, but the secure setting as well." (Id. at p. 486.)
Moreover, whatever programs are available at DJJ will likely be of benefit to Angel and his confinement will be a benefit to the public. He consistently failed to complete sex offender treatment while on probation and was found to be at high risk of re-offending. The law recognizes punishment as a tool of rehabilitation, and strives to provide for the protection and safety of the public as well as each minor under the juvenile court's jurisdiction (§ 202, subds. (a) & (b); In re Michael D. (1987) 188 Cal.App.3d 1392, 1396).
In sum, it is abundantly clear the juvenile court exhausted all available local alternatives prior to committing Angel to DJJ and the secure confinement at DJJ will benefit both Angel and the public. There is no abuse of discretion. (In re Antoine D., supra, 137 Cal.App.4th at p. 1320.)
Sex Offender Registration
When a minor is committed to DJJ for committing a violation of Penal Code section 288, subdivision (a), the minor must register as a sex offender. (In re G.C. (2007) 157 Cal.App.4th 405, 409-410.) We concluded Angel's commitment to DJJ was not an abuse of discretion. Therefore, Angel must register as a sex offender pursuant to Penal Code section 290.
DISPOSITION
The August 16, 2016 commitment to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice, is affirmed.