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In re A.A.

Court of Appeal of California
Apr 22, 2009
No. F055165 (Cal. Ct. App. Apr. 22, 2009)

Opinion

F055165.

4-22-2009

In re A.A., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.A., Defendant and Appellant.

James H. Dippery, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Virna L. DePaul, Deputy Attorneys General, for Plaintiff and Respondent.

Not to be Published in the Official Reports


OPINION

THE COURT

Before Levy, Acting P.J., Hill, J. and Kane, J.

Further statutory references are to the Penal Code unless otherwise specified.

A.A., a minor, appeals from an order of the juvenile court committing him to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ). He contends the commitment constituted an abuse of discretion by the court and that remand for a new disposition hearing is required for the court to properly consider less restrictive alternatives. We disagree and shall affirm the order of commitment.

FACTUAL AND PROCEDUAL BACKGROUND

At a pretrial hearing on October 28, 2004, the minor entered a plea bargain under which he admitted that he committed two counts of sodomy of a person under 18 (Pen. Code,1 § 286, subd. (b)(1)) and one count of oral copulation with a person under 18 (§ 288a, subd. (b)(1)) in exchange for a maximum confinement time of four years four months. The counts involved the minors four-year-old brother and a three-year-old girl. The minor was 12 years old at the time of the offenses. The probation report filed on November 15, 2004, generally summarized the underlying facts as follows:

"The circumstances of the current petition involve the minor sodomizing his four-year-old brother, and sticking a pencil in his rectum. The minor also forced his brother to orally copulate the minor. According to the victim, this occurred approximately eighteen times. The minor would play truth or dare with the victim, and not allow him to play with any games unless the victim would comply. On another occasion, the minor lured a three-year-old female victim out of her home, and sodomized her near the trash cans on the next street over. Further, after the incident the minor continuously rode his bicycle past the three-year-old victims home, would tap on the windows in an attempt to get her to open the front door. The victims parents eventually videotaped the minor attempting to gain entry to their home."

At a disposition hearing on November 30, 2004, the minor was adjudged a ward of the court based on his admissions and placed on probation. Although the probation department recommended that the minor be committed to DJJ (then the California Youth Authority or CYA), the juvenile court ordered placement into a group home. On December 10, 2004, the minor was placed with Mathiot Group Homes in Sacramento pursuant to the juvenile courts order.

The 2004 probation report expressly considered but "deemed inappropriate" placement of the minor in a group home on the grounds that such placement would put other juveniles at risk from "the minors dangerous and inappropriate sexual behavior" and a group home would not be "secure enough to ensure the protection of our community." The probation report continued that the minor needed "more intensive treatment tha[n] can be provided in a Group Home." Despite this assessment, it appears the juvenile court found, and the parties agreed at the time, that there were "special considerations and circumstances" in the case that warranted group home placement, even though the minors conduct "would arguably fall within the parameters of CYA." At the disposition hearing, the prosecutor described these circumstances as including "the age of the minor, the family relationship between the minor and one of the victims, and also the wishes of the parents of the minor and the same victim. As well as the previous recommendation expressed in the SCIU [(special case investigation unit)] report." In the SCIU report dated September 22, 2004, the psychologist that evaluated the minor recommended placement "in a sex offender group home for intensive treatment" and "due to the minors young age, it is advised that he be placed in a home with similar age peers." The record further reflects that prior to the disposition hearing, nine members of the minors family wrote letters requesting the juvenile court order group home placement instead of following the recommendation of the probation department to commit the minor to the [DJJ].

On November 7, 2007, the probation department filed a notice of violation of probation, alleging that on or about November 2, 2007, the minor violated the terms and conditions of his probation by failing to abide "by the rules and regulation of the group home by engaging in sexual activity with other residents in the group home, and repeatedly violating group home rules." One of the supporting documents was a discharge summary from Mathiot Group Homes, which summarized the minors therapeutic progress and the circumstances underlying the probation violation as follows:

"[The minor] has been in the Mathiot program for nearly 3 years. He has spent most of that time on Non Trust levels for defiant behavior and a few reported episodes of sexually acting out. In September [the minor] was moved to the Cheer facility due to his complaints of not having his needs met and being attracted to boys in his previous house so much that it was distracting him from his treatment. A new treatment plan was devised surrounding [the minors] reports of being homosexual. However, [the minor] has continued his defiant, passive-aggressive behavior and rule violations despite continued threats of termination from his probation department. On 11/02/07, after a confession from one of [the minors] peers, [the minor] admitted to having sexual activity with at least 10 other residents in the program beginning 6 months after his admission, his most recent having sex repeatedly with his current roommate soon after arriving at the Cheer facility in late August. Some of [the minors] partners are no longer in the program, but the majority of those who are have confessed their sexual activities with [the minor], which range from fondling to mutual oral copulation and sodomy. It is clear now that [the minor] has been secret keeping and not working on his urge control at all. From reports he has an ongoing plan in each residence he has been in to plot out staff activities and bed check times. He asks his peers if they want to have sex and tells them its okay because he has had it with others and hasnt been caught. His recent admission shows a calculated and cunning profile and a refusal to give up d[i]visive, secret keeping behavior. A report on his activities has been filed with the Elk Grove Police Department. He is in need of a higher level of supervision where his sexual deviance and predatory disposition can be closely monitored. He is at the highest possible risk for re-offense and danger to the community."

The discharge summary concluded with the following clinical care recommendations:

"[The minor] remains a serious danger to the community and a high risk to re-offend, due to the frequency and quality of deviant fantasies that go through his head on a daily basis. He has a profile of cunning and predatory behavior toward age mates as well as children. He has an entrenched pedophilia thought process. He needs a higher level of care and supervision that will address his deviant behavior while keeping the community safe from his stubborn refusal to give up his pathology."

Supporting documentation also included a supplemental report prepared by the director of clinical services for Mathiot Group Homes, recommending the minor be placed in a "secure holding facility with the ability to isolate him at times when he cant be supervised in the constant visual sight of treatment personnel." The director explained:

"Despite three years of intensive treatment, addressing a high interest in preying on young children for sex (pedophilia), gender identity confusion, immorality and amorality within his identified sexual orientation, abuse reactive identification with the aggressor (victim to victimizer), confusion in regard to sex vs love, Dissociative features, flat affect (affective incongruence), an alarming absence of empathy (attachment) and Narcissistic entitlement, [the minor] retains an acute insistence on remaining a predatory victimizer of children for sex and nuisance to the public in his blatant disregard for health, safety[,] and the rights of others in his relentless pursuit of sexual exploit. With a full understanding of numerous costs for his exploits, [the minor] retains his obsessions with habituated pursuit of sexual contact, victimization[,] and remains unimpressed with any legal ramifications for his sexual addictions requiring a strong warning to society regarding his emergence as a sexual predator and menace in regards to public safety.

"Several victims of [the minors] sexual pursuits (mostly roommates) describe him as relentless, cunning and seductive. He is passive, soft-spoken, seemingly cooperative, simple and generally a nice person in appearance, making him harder to detect and more likely to operate rapidly and for lengthy periods multiplying high numbers of victims before being stopped. (He has been known in this treatment facility to sexually accommodate two residents at the same time.) It is a mistake to buy into his simplicity as he is complex and sophisticated in seduction, avoiding getting caught and in feigning cooperation, thus with the inclusion of the above mentioned characteristics that parallel more so the profiles of serious adult predators."

At a detention hearing on November 8, 2007, the minor admitted the probation violation, and the matter was referred to the probation department for a disposition report and recommendation. The probation report filed on November 19, 2007, contained the following analysis regarding placement alternatives:

"In regard to Dispositional alternatives, recommending the minor be placed in the Tulare County Long Term Program or the Tulare County Youth Facility Program were considered; however, it appears that all the minors issues [cannot] be properly addressed at these local resources. Recommending the minor be placed in the Tulare County Short Term Program was not considered, because it is believed the minor needs a longer period of confinement to address his sexual deviance and criminal sophistication. Recommending the minor be placed back into a Group Home, Foster Home, or in the home of a Suitable Relative was also not considered, because it is believed the minor is in need of a more structured, highly secured environment where the minors issues can be more readily addressed. Recommending the minor to be placed back into the home of his mother was also not considered because the minor has a history of sexually abusing individuals within his mothers home.

"Due to the minors extensive delinquent history, the seriousness of the minors overall behavior and the minors escalating criminal sophistication it appears the minor is in need of a locked facility to adequately address all of his issues. The minor has exhausted his other resources and it appears the minor is in need of a more secured setting th[a]n the local placements can provide. Furthermore, the minor has been given opportunity to correct his delinquent behavior; however, the minor has failed to reform. Therefore, it appears that the most appropriate recommendation for the minor is that he be committed to [DJJ] so his issues can be readily addressed.

"While in [DJJ] the minor will have the opportunity to participate in sex offender therapy and continue his education, while in a highly secured setting. [DJJ] offers an accredited sex offender program which the minor would most definitely benefit from. While the minor is in [DJJ], he will receive twenty-four hour supervision in a highly structured setting, and the safety and security of the community can be maintained."

At a disposition hearing on November 27, 2007, the juvenile court stated that it had read and considered the probation report, and noted the probation officers recommendation that the minor be committed to DJJ. Counsel for the minor then noted that the probation report did not address the issue of what medications the minor was taking and what effect such medications were having on his behavior. Following a brief discussion of this issue, the juvenile court set the matter for a contested disposition, explaining:

"And the reason that I do that is because the recommendation is that he be placed in DJJ and thats a very serious recommendation. And I wish for all of us to be thoughtful in our evaluation of this minors situation.

"If, in the final analysis, thats concluded that thats the best placement for him, thats fine, but I think we all need to review this file, and then I need to hear from minor and his counsel and from the People, and then see what is really the best placement for this minor."

Thereafter, a contested disposition hearing was set for December 13, 2007.

At a hearing on December 11, 2007, counsel for the minor requested that the juvenile court vacate the date of the contested disposition hearing and order that the minor undergo a mental health evaluation by SCIU evaluation to be conducted on the minor. The court granted counsels request and set the matter for hearing on January 24, 2008.

On January 23, 2008, the SCIU psychologist, Dr. James Delahunt, filed a report based on his review of the minors records, a 75-minute clinical interview with the minor, and testing of the minor. Dr. Delahunt concluded the minor met the criteria for a "seriously emotionally disturbed" minor as set forth in Welfare and Institutions Code section 5600.3, subdivision (a). Dr. Delahunt recommended:

"Due to the serious nature of the subjects offenses and his failure or inability to benefit from treatment as evidenced by repetitive engagement in sex crimes with numerous partners, it is recommended the subject be adjudged a Ward of the Juvenile Court, and that he be committed to DJJ for treatment, training, and rehabilitation."

Dr. Delahunt further recommended that, during the commitment, the minor be given "the opportunity to participate in sex offender therapy" and "be placed in the accredited in-patient type of treatment program which provides intensive sex-offender treatment services."

When the matter came on for hearing on January 24, 2008, the juvenile court stated that it had read and considered the probation report and the SCIU evaluation of Dr. Delahunt. Counsel for the minor then requested that the matter be set for contested disposition. The probation officer inquired about the possibility of ordering a mental health evaluation in advance of the contested disposition hearing in the event the minor was ordered committed to DJJ. The following discussion ensued:

"THE COURT: Counsel, my recollection — I will have to review the appropriate regulations. I dont think that it is statutory. The regulations of the Division of Juvenile Justice is there a requirement that minors who are proposed for commitment to the Division of Juvenile Justice that they undergo specified mental health evaluations?

"Im not confident at this point that the [SCIU] evaluation would suffice. I think it would be appropriate for us to — collective us, if you will, to look at the regulation and determine whether, in fact, the SCIU complies with this requirement or not.

"If it does not, and I believe that it does not right now, I dont think that there is any harm in making a referral for compliance with that regulation because even if the minor is ultimately not placed at DJJ at a contested hearing, well have additional information relating to his mental health status that might be able — this might help us make an alternative placement if an alternative placement is warranted. So at this point it is really a generation of information and possible compliance with other regulations so I will make that referral. Probation will facilitate that. [¶] . . . [¶]

"[MINORS COUNSEL]: And the Court would like to have the evaluation before we do the contested hearing?

"THE COURT: I think it makes sense to accumulate as much information as possible about this minor. Thats my view. I dont know what you intend to present at the contested. It is possible perhaps that you already have all the information you wish for the Court to consider. I dont know if you are gathering more. You need not tell me about that.

"But in terms of the Courts view, I have the SCIU, I have the report. I dont think that there would be any harm in getting additional mental health information relating to this minor because, as Ive already indicated, in the event that the Court follows this recommendation and the minor is placed[,] the Court will be reasonably satisfied that everything has been complied with and in the event that the Court does not follow the recommendation then it will give us additional information as to an appropriate placement for this minor."

Following this discussion, the minor waived time and the matter was set for a contested disposition hearing on February 22, 2008.

On February 5, 2008, a report was filed by Esmeralda Leon, L.C.S.W., of the Tulare County Health and Human Services Agency, in compliance with the mental health assessment ordered by the court following the January 24 hearing. The report included the following observations:

"Minor has a history of being molested by a friend when he was 6 years of age. Minor reports that he began having relationships with other children when he was about 8 years of age. He has been placed in a group home in Sacramento where he reports undergoing intensive therapy. While at that group home he reports having various relationships with other children. At this time [the minor] reports being stressed due to the possibility of being sentenced to DJJ and this has caused him to not sleep very well and his appetite has decreased. [The minor] denies having any thoughts of wanting to harm self or others and has no history of hospitalization due to mental illness. Minor reports that he at times still has sexual urges but due to the structured setting of Juvenile Hall he is unable to carry these urges out."

"Minor has been programming well and there have been no reported difficulties in regards to getting along with other minors or staff. Dr. Weber MD has seen minor on three occasions and a psychiatric evaluation was completed on December 21, 2007 at which time Dr. Weber MD gave the diagnosis of Depressive Disorder NOS, Sexual Disorder NOS and Sexual Abuse of Child, he also noted that that the diagnosis of Pedophilia did not pertain due to minors age. Dr. J. Delahunt Ph.D evaluated minor on January 23, 2008 for a psychological evaluation. Dr. J. Delahunt Ph.D gave a diagnosis of Sexual Abuse of a Child, Adjustment Disorder and the presence of Dependent and Narcissistic Personality traits. . . ."

"Minor has an extensive history of repetitive engagement in sex crimes even when he was receiving intensive mental health treatment for sex offenders. Due to this, a structured facility would be more appropriate due to the high risk of him re-offending."

The contested disposition hearing was thereafter continued to March 14, 2008. At the March 14 hearing, the juvenile court stated for the record that it had considered all of the records in the minors file, including the November 2007 probation report and the SCIU evaluation prepared by Dr. Delahunt. The juvenile court also considered a number of letters written on behalf of the minor by family members. The major theme of the letters was that DJJ placement would be detrimental to the minor and that the minor could still benefit from a group home placement but that he needed to be placed in a stricter group home than the one in which he previously had been placed.

The minor also read to the juvenile court, in his counsels words, "a list of the stuff that he learned in the group home and how he plans to use that in the future and how a different group home would be a different experience for him . . . ." In addressing the juvenile court, the minor claimed, among other things, that the group home had taught him how to respect people, to have empathy, to trust people, to take responsibility when he did something wrong, to control his urges by writing down his thoughts, to recognize when he was trying to cover up something by adopting a "victim mask," and to stop being passive-aggressive. After listening to this list, the juvenile court questioned the minor as follows:

"THE COURT: If you were learning these things, why did you not apply them

"THE MINOR: Because

"THE COURT: — to prevent your own behavior?

"THE MINOR: Because I didnt use it in the group home. I just used it for when I was

"THE COURT: Thats my question.

"THE MINOR: — outside.

"THE COURT: I know you didnt do it. Im asking you why not.

"THE MINOR: I dont know.

"THE COURT: Well, `I dont know is an answer that I dont accept. Because youre the one that engaged in the behavior and you need to explain it in a fashion that makes sense to me.

"Because when you sit there and you say `I dont know why I didnt apply it, well, that signals to me that you really did not incorporate those values into your system, and you believe that you had freedom to choose as to whether you would engage in the behavior or not instead of falling back into your new way of analyzing things so that you would apply your treatment and training.

"THE MINOR: I always let my urges take hold of me, and I just forgot about them and I didnt use them. I let that get in the way."

After considering the forgoing information and the arguments of counsel, the juvenile court ordered the minor committed to DJJ. The court explained its rationale as follows:

"Counsel, in considering whether the minor should be committed to the Division of Juvenile Justice, the Court must consider two issues: Should this minor be committed? If so, what should be the maximum period of confinement?

"Let me turn to the first. Welfare and Institutions Code Section 725.5 provides, in relevant part, `In determining the judgment to be made in any case in which the minor is found to be a person described in [Welfare and Institutions Code] Section 602, the Court shall consider, in addition to other relevant and material evidence, . . . `1, the age of the minor; and 2, the circumstances and gravity of the offense committed by the minor; and 3, the minors previous delinquency history.

"Moreover — more specifically, [Welfare and Institutions Code] Section 734 provides, `No ward of the Juvenile Court shall be committed to the Youth Authority, now known as the Division of Juvenile Justice, of course, `unless the judge of the court is fully satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefited from the reformatory educational discipline or other treatment provided by the Youth Authority.

"Let me review these factors. With respect to the age . . . . [¶] . . . [¶]. . . Hes presently 16.

"And the facts and circumstances of the current offense, that is, the offense for which the minor is before the Court, is that he violated the rules and regulations of his group home. And these are not de minimis violations of the group home rules. This is not a situation where he violated curfew, refused to go to school, perhaps, did not follow ordinary instructions.

"In this instance, according to the incident report, and Im citing from page 3 of the SCIU report, `That [the minor] has been the primary instigator in setting up sexual acts between himself and nine other residents for two years. Hes propositioned his roommates repeatedly. Using others, he has succeeded in learning to coax them into letting him engage them in sexual misconduct. [The minor] has admitted to these incidents after knowing the others had told of these incidents.

"So we have a situation where a then 15-year-old, now 16-year-old, has been the primary instigator in setting up sexual acts between himself and nine other residents for two years. So those circumstances really highlight the gravity of the offense.

"This is a minor that was placed in a group home where, ostensibly, he was to receive treatment with respect to his sex offenses, and instead, the minor took it as an opportunity to be the primary instigator in setting up sexual acts between himself and at least nine others.

"In terms of the . . . previous delinquency history, although it involves one single petition, that petition having been filed on 9/3/04, those charges themselves are fairly serious. That involved sodomy, oral copulation, and another act of sodomy.

"So it appears to the Court that this minor has continued to engage in sexual offenses over the course of the time he has been before the Court.

"With respect to the mental and physical condition and qualifications of the ward, Ive read the SCIU report. By this reference, the Court incorporates into the record the findings and recommendations of the SCIU report.

"And Im convinced that the mental and physical condition and qualifications of the ward render it probable that he will be benefited from the reformatory educational discipline or other treatment provided by [DJJ].

"So, again, after considering these elements, the Court finds probable that the minor will benefit by the reformatory educational discipline or other treatment provided by [DJJ]."

On April 18, 2008, the minor filed a timely notice of appeal.

DISCUSSION

A decision of the juvenile court committing a minor to a DJJ will not be reversed absent a clear showing that the trial court abused its discretion in selecting DJJ as the appropriate disposition. (In re George M. (1993) 14 Cal.App.4th 376, 379.) The record must demonstrate a probable benefit to the minor by DJJ commitment and the inappropriateness or ineffectiveness of less restrictive alternatives. However, a DJJ commitment may be considered without previous resort to less restrictive alternatives. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) The appellate court indulges in all reasonable inferences to support the courts decision. (In re Asean D. (1993) 14 Cal.App.4th 467, 473.) If there is substantial evidence to support the trial courts findings, those findings will not be disturbed on appeal. (In re James H. (1985) 165 Cal.App.3d 911, 922.) The 1984 amendments to the juvenile court law reflect an increased emphasis on punishment as a tool of rehabilitation and a concern for the safety of the public. (In re Asean D., supra, 14 Cal.App.4th at p. 473.)

Here, the juvenile court did not abuse its discretion when it committed the minor to DJJ. Overwhelming evidence supports the conclusion that the minor would likely benefit from a DJJ commitment, less restrictive alternatives would be inappropriate and ineffective, and the placement was in the best interests of both the minor and public safety. The record, detailed above, clearly demonstrates that the minor continued to be in need of sexual offender treatment, that group home placement, the less restrictive alternative sought by the minor, had proved ineffective, that the minor remained at high risk of committing future sexual offenses, and that he would likely receive more suitable treatment at DJJ.

Indeed, the minor does not contend that the record lacks substantial evidence of probable benefit from the DJJ commitment or that less restrictive alternatives would be ineffective or inappropriate. Rather, he appears to be contending that the juvenile court abused its discretion by failing to adequately consider other placement alternatives and urges this court to reverse the order of commitment and remand the matter "for reconsideration of an appropriate placement." In support of his contention, the minor specifically faults the probation department for failing to consider "placement at another group home." "In rejecting, out of hand, another group home placement," appellant asserts, "probation failed in its obligation to investigate alternative placements for the courts consideration." In his reply brief, the minor suggests the juvenile courts error was that it cursorily relied on the probation departments recommendation of a DJJ commitment and thereby improperly delegated its discretion to the probation department to determine proper placement. We disagree with all these arguments.

The record plainly demonstrates that the juvenile court did not cursorily rely on the probation departments rejection of a group home placement and recommendation in favor of a DJJ commitment made in the November 2007 probation report. At hearings after the minor admitted the probation violation, the juvenile court repeatedly emphasized the importance of gathering as much information as possible to aid in its determination as to whether the DJJ commitment recommended by the probation department or an alternative placement would be most appropriate for the minor. The contested disposition hearing was continued several months to allow time for court-ordered psychological evaluations and assessments of the minor. The conclusions reached by the mental health professionals and set forth above provided more than ample support for the probation reports conclusion that the minor was "in need of a more structured, highly secured environment" than a group home and we find no negligence in the probation departments decision not to consider the possibility of placing the minor in another group home. At the March 2008 disposition hearing, the juvenile court noted it had read the SCIU report, the probation report, and the other records contained in the minors file. The court heard the extensive arguments of counsel, engaged in a thoughtful interchange with the minor to try to determine why the minor had not been able to apply what he had learned in therapy to his conduct within the group home environment, and articulated a measured disposition citing the pertinent facts and circumstances of the case. On this record, "it is clear that other alternative placement options were explored and considered." (In re Samuel B. (1986) 184 Cal.App.3d 1100, 1104, disapproved on another ground in People v. Hernandez (1988) 46 Cal.3d 194, 206, fn. 14.)

We have also considered and reject as without merit the minors assertion in his opening brief that he did not fail his group home placement, as much as the placement failed him. The minors assertion is based on a selective reading of the record, which largely focuses on complaints the minor made regarding his treatment in the summer of 2007, towards the end of his group home placement. The record shows not only that the juvenile court was aware of these complaints, but also that the court questioned the probation department and counsel during review hearings at the time and such questioning revealed the complaints were being actively addressed. Moreover, by all accounts, during his three years in the group home, the minor received intensive therapy to address his deviant sexual behavior but due to the lack of security and structure inherent in the group home setting, the minor was able to continue committing sexual offenses and placing other juveniles at risk. Mental health professionals that evaluated the minor identified the lack of structure and supervision in the group home environment as being a major impediment to the minors therapeutic progress and identified programs available at DJJ to help address the minors delinquent conduct and protect the safety of others. Thus, the juvenile courts disposition satisfied the twin goals of protecting the public and rehabilitating the minor and no abuse of discretion occurred.

DISPOSITION

The judgment (order of commitment) is affirmed.


Summaries of

In re A.A.

Court of Appeal of California
Apr 22, 2009
No. F055165 (Cal. Ct. App. Apr. 22, 2009)
Case details for

In re A.A.

Case Details

Full title:In re A.A., a Person Coming Under the Juvenile Court Law. THE PEOPLE…

Court:Court of Appeal of California

Date published: Apr 22, 2009

Citations

No. F055165 (Cal. Ct. App. Apr. 22, 2009)