Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Fresno County. Ct. No. 07 CEJ601301-1, Timothy A. Kams, Judge.
Michael Allen, 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, Louis M. Vasquez and Leanne Le Mon, Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Cornell, J. and Gomes, J.
OPINION
D. A. (D.), the appellant, was committed to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (Division of Juvenile Justice) after he admitted he committed a forcible lewd act against a child under the age of 14. He appeals, claiming the juvenile court abused its discretion because it rejected less restrictive alternatives without substantial evidence they would be inadequate. We affirm the order of the juvenile court.
Background
On August 19, 2007, 13-year-old D. pulled a five-year-old female victim into the bathroom at the playground. He pulled down her skirt and panties and forcibly raped her. The victim protested and tried to get away, but she was unable to do so. The victim’s five-year-old old cousin entered the bathroom and told D. to stop. D. did not stop raping the victim until the victim’s aunt arrived and called the victim’s name. The victim said D. had his penis inside of her for a long time and it hurt. The victim was bleeding when law enforcement arrived and there was blood on the bathroom floor.
A Welfare and Institutions Code section 602 petition was filed against D. alleging one count of rape and one count of forcible lewd acts against a child. D. admitted he committed a forcible lewd act against a child.
A psychological examination of D. was conducted. The psychologist concluded that D. was likely functioning within the mild range of mental retardation. It was believed that D. was at a high risk of reoffending without proper treatment and intervention. D. was unable to show remorse or insight into his offense. D had high levels of anxiety, depression, anger, and impulsivity. It was highly recommended that D be placed in a supervised and structured setting. D.’s home setting was not considered to be appropriate. It was also highly recommended that D receive sex offender therapy through a group home or through a program at the university where the psychological exam took place. It was recommended that he attend both group and individual therapy on a weekly basis.
The probation officer’s report detailed the programs that would be available to D at the Division of Juvenile Justice. The probation officer stated that local less restrictive programs had been considered but were insufficient to hold D accountable for his actions in this matter. The officer listed the programs that had been considered. The officer recommended that D be committed to the Division of Juvenile Justice.
Counsel for D filed a statement in mitigation criticizing the probation officer’s report because it did not contain specific information why treatment in a group home would not be appropriate. D’s counsel argued that D is young, does not have a prior record, and has some significant intellectual deficiencies and would be a candidate for a local program. It was contended that a commitment to the Division of Juvenile Justice would not be in D’s best interest.
At the disposition hearing D’s counsel argued that local group homes could provide D with structure, stability and sex offender treatment and requested that the court place him in a local group home. Counsel claimed that sending D to the Division of Juvenile Justice is an extreme measure for a child who is 13 years old and has never been before the court before.
The People argued that the crime committed by D was horrific and D’s violent conduct presents the most serious danger to society. In addition, the People noted the psychologist’s conclusion that D had a high risk of reoffending. The People asserted that this case calls for extreme measures and that D should be committed to the Division of Juvenile Justice.
The court found that D needs assistance, help, and intensive treatment. The court questioned how the treatment goals could be achieved and at the same time protect members of the community in light of the seriousness of what D had done. The court found that sending D to a group home would not afford anyone a strong sense of safety. The court found it distressing that it had to consider sending D to the Division of Juvenile Justice, but the court felt “compelled to intervene in such a harsh manner essentially bypassing all local programs because I think this Minor does present a significant danger to the community. And it can only address that concern by sending him to the Division of Juvenile Justice where he will receive the treatment that he so desperately needs.”
The court selected the mitigated term of three years as the term of commitment to the Division of Juvenile Justice.
Discussion
D contends the juvenile court and the probation officer both stated in a conclusory fashion and without supporting evidence that less restrictive alternatives would not adequately protect public safety. D argues that these decisions were not supported by substantial evidence that less restrictive alternatives would be ineffective. D claims the court’s decision was an abuse of discretion in two ways. First, he asserts, the court failed to support with substantial evidence its determination that less restrictive alternatives could not adequately protect public safety and, second, the court failed to address why the recommendations of the psychological report would not adequately protect public safety.
Beginning in 1984 the Legislature recognized that punishment of minors can be a rehabilitative tool and the interests of public safety are to be considered in the care, treatment, and guidance of the minor. “‘[T]he Legislature intended to place greater emphasis on punishment for rehabilitative purposes and on restrictive commitment as a means of protecting the public safety.’ [Citation.]” (In re Carl N. (2008) 160 Cal.App.4th 423, 433.) “[A] commitment to CYA [now known as the Division of Juvenile Justice] ‘may be made in the first instance, without previous resort to less restrictive placements.’ [¶] ‘[T]his interpretation by no means loses sight of the “rehabilitative objectives” of the Juvenile Court Law. Because commitment to [the Division of Juvenile Justice] cannot be based solely on retribution grounds [citation], there must continue to be evidence demonstrating (1) probable benefit to the minor and (2) that less restrictive alternatives are ineffective or inappropriate. However, these must be taken together with the Legislature’s purposes in amending the Juvenile Court Law.’ [Citation.]” (Ibid.)
We begin by noting that the juvenile court is not bound to follow the recommendation contained in a psychological report; the report is merely an aid in helping the court reach its decision. In addition, we note that in the risk assessment portion of the report it is stated that “[D] is at high risk of re-offending without proper treatment and intervention. Critical factors involved in his high risk to re-offend concern the severity of sexual aggression involved in his offense, low cognitive functioning which may impair his judgment and self-control, lack of empathy, and poor coping skills to deal with stressors.” (Emphasis in original.) This risk assessment is in line with and supports the juvenile court’s conclusion that D needs an extremely structured and secure setting that is only offered at the Division of Juvenile Justice.
D argues that there is not a “scintilla” of evidence to support the court’s rejection of less restrictive alternatives. We find otherwise. Here the facts of D’s criminal activities were part of the record. He committed a horrific predatory act, on a vulnerable five-year-old stranger, in broad daylight, and suffered no remorse or insight into his behavior. These facts were sufficient for the juvenile court to find that the seriousness of D’s behavior, combined with his need for intensive therapy, required that he be committed to the Division of Juvenile Justice. (In re Jonathan T. (2008) 166 Cal.App.4th 474, 486.) “A juvenile court’s commitment order may be reversed on appeal only upon a showing the court abused its discretion. [Citation.]” (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.)
Based on D’s actions and the psychological report, we find the juvenile court’s decision was supported by the record and it did not abuse its discretion when it committed D to the Division of Juvenile Justice.
Disposition
The disposition of the juvenile court is affirmed.