Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. 24006-J
STEIN, J.
The juvenile court sustained allegations that defendant, a minor, had committed forcible and nonforcible lewd acts on a minor under the age of 14 years. (Pen. Code, § 288, subds. (a) & (b).) The court later committed defendant to the Division of Juvenile Justice (DJJ) for a maximum term of six years. We affirm.
Effective July 1, 2005, the California Youth Authority (CYA) is known as the Department of Corrections and Rehabilitation, Division of Juvenile Facilities. (Pen. Code, § 6001; Welf. & Inst. Code, § 1710.) Both parties refer to this institution as the Division of Juvenile Justice, or DJJ. For purposes of this opinion, we will use the term “DJJ” even though the institution was called CYA during most of the proceedings below.
BACKGROUND
Defendant had been a dependent of the court for many years, having been removed from the custody of his mother in May 1993. He lived with his brother in a foster home from July 1996 until January 2004. It appears that defendant met a woman at a summer camp run by children’s services, who spoke with him about moving to her home after it was certified for foster care. Defendant was unhappy with his existing placement, and in January 2004, moved in with the woman and her children, one of whom is the victim of his crimes. Defendant stayed there until June 2004, went to another foster home and then went AWOL, living with friends.
In the meantime, defendant began having trouble with the law. He was cited in June 2001 for assault (Pen. Code, § 245, subd. (a)(1)) after he and some companions threw rocks at a girl and called her names. Defendant admitted the assault, was referred to the county juvenile work program for four days, and completed the program successfully. In April 2004, defendant pulled a knife on another student while on the school bus. Defendant was expelled from school. The matter was handled informally, with defendant being ordered to complete 35 hours of community service work. Defendant completed the work successfully. In June 2004, defendant was cited for being under the influence of a controlled substance. (Health & Saf. Code, § 11550, subd. (a).) Defendant participated in a diversion program.
Defendant visited in the victim’s home from time to time after he stopped living there. The victim, who was 11 years old, later reported defendant had committed sexual acts with her beginning in August or September 2004. In December 2004, she reported defendant lay on top of her for a few seconds during which he partially placed his penis in her vagina. The victim apparently told a friend of the family about the incident two weeks later, and the friend notified the victim’s mother.
On January 19, 2005, defendant was observed drinking alcohol and was cited for being a minor in possession of alcohol. (Bus. & Prof. Code, § 25662.) On January 31, 2005, a warrant issued against defendant in connection with the sex offenses. On February 6, 2005, the police observed defendant drinking beer. He again was cited for being a minor in possession of alcohol. A record check revealed the outstanding warrant against defendant. He was arrested and transported to juvenile hall. Defendant admitted the sexual contact, and admitted it was a mistake, but stated it was consensual.
On April 1, 2005, an amended petition was filed against defendant, alleging eight counts of forcible or nonforcible lewd acts on a child under the age of 14 years (Pen. Code, § 288, subds. (b)(1) & (a).) The matter was tried by the juvenile court, which sustained one count of a forcible lewd act, and two counts of nonforcible lewd acts, upon a child. (Pen. Code, § 288, subds. (b)(1) & (a).) The probation department recommended defendant be committed to DJJ. The court, however, continued the matter until May 26, 2005, and again until July 13, 2005, for the purpose of investigating alternative options for disposition.
By July 13, 2005, defendant had been accepted for treatment in the SAFER program, a sex offender program for adults, to begin approximately two weeks later, when he turned 18. Defendant also had been accepted for participation at Tamayo House, a transitional living program for young adults, where he could reside while participating in the SAFER program. The court placed defendant on probation on the conditions he reside at Tamayo House and participate in the SAFER program. The court ordered several other conditions, including that defendant not change his living situation without his probation officer’s approval, that he refrain from using or possessing intoxicating substances or beverages, and that he not associate with any child under the age of 14 without responsible adult supervision as approved by the probation department.
On September 23, 2005, the probation department filed a notice of violation. The department alleged defendant had tested positive for cocaine on September 12, 2005, had failed to attend AA/NA meetings, and had not been spending all nights at Tamayo House. Defendant admitted the allegations. The notice of violation asserted defendant had been participating satisfactorily in the SAFER program, was employed at a local restaurant and had been paying his rent at Tamayo house. A supplemental dispositional report recited defendant had tested negative for drugs on September 22, 2005, October 4, 2005, October 13, 2005, and October 18, 2005. He had attended four AA/NA meetings and had attended an additional SAFER program for substance abuse issues. He had adhered to curfew and had been calling his probation officer every night upon returning to Tamayo House. The court continued probation, imposing additional conditions, including that defendant attend an additional substance abuse program at SAFER, at his own expense.
On January 13, 2006, another notice of violation was filed, alleging defendant had failed to follow the rules at Tamayo House and had been served with a notice of eviction on October 28, 2005. Defendant was permitted to stay after he agreed to a behavior contract, but failed to adhere to the contract. He was evicted on December 8, 2005. He told his probation officer he was moving in with friends, but did not provide the address until January 5, 2006. Defendant’s residence was searched on January 12, 2006. A baggie with a small amount of marijuana was found in defendant’s room. A bottle cap from a malt liquor bottle was found in defendant’s pocket. It also was discovered that a four-month-old child was living in the house. Defendant knew he was supposed to report the presence of the child to his probation officer, but had failed to do so, stating it had slipped his mind. On March 8, 2006, defendant admitted the allegations he had been evicted from Tamayo House and had failed to inform his probation officer about living in a residence where a child also lived. The other allegations were dismissed with Harvey waivers (People v. Harvey (1979) 25 Cal.3d 754).
A dispositional hearing was held over three days, beginning May 11, 2006, and ending August 11, 2006. In a supplemental dispositional report, defendant’s probation officer noted defendant had adhered to a pattern of failing to do as he was directed, failing to attend scheduled meetings and/or failing to provide proof of attendance. He seemed to be unable to disassociate himself from friends who tended to be bad influences on him, denied he had a serious drug problem, and would not talk about the sex offense, making it impossible for his counselor to evaluate defendant’s risk to young children. Defendant struggled with being honest when confronted. On the other hand, defendant’s drug tests continued to be negative and his attendance at the SAFER drug counseling program had been excellent. His counselor for that program reported defendant had begun to provide more information about himself, but the counselor was not certain if defendant was taking matters to heart. The counselor thought that if defendant was not referred to DJJ, he would need a very tight and structured program. He also stated that if defendant was not referred to DJJ immediately, he should go to DJJ if he committed just one more violation of probation. Defendant’s counselor in his primary treatment group at SAFER agreed some kind of structure around defendant’s housing would be critical. She testified that while she would like to see defendant back at an institution such as Tamayo House, she was concerned about his failure to take advantage of the program and failure to follow the rules.
The court explained that the issue was whether defendant should be committed to DJJ, noting defendant already had received opportunities to make it in the community. The witnesses essentially agreed defendant could succeed only if he lived in a highly structured environment. They were impressed with defendant’s ability to take positive action on his own behalf, such as finishing high school, obtaining a job and obtaining a living situation after being evicted from Tamayo House. At the same time, they were concerned about defendant’s anger and his difficulties with dealing with authority. They also expressed concern with defendant’s failure or inability to open up during counseling sessions, including his tendency to lie about or to minimize his participation in antisocial acts, and his failure to acknowledge his responsibility for the sexual crimes or the effect they had on the victim. Several witnesses expressed hope defendant could return to the SAFER program, although they acknowledged defendant would need some kind of structured residential placement and had failed at Tamayo House.
Dr. David Schneider, a psychologist, examined defendant and both submitted a report and testified at the dispositional hearing. Dr. Schneider reported defendant had limited insight and had not accepted responsibility for the sex offenses. He exhibited no awareness that his drug use was a problem, including no awareness his use had an effect on his ability to remain at liberty. At one point, defendant indicated he did not consider his sex offenses to have been consensual. He admitted to two or three incidents over a three- to four-month period and maintained the victim wanted to participate, but stated he had learned through therapy that she could not make those choices. He was aware that what he had done was wrong and did not want to be viewed as a pedophile. With the exception of the sex offenses with the victim, nothing in defendant’s history or tests suggested pedophilic tendencies. He appeared to be a situational, rather than a preferential, pedophile. Dr. Schneider recommended against returning defendant to the community, but believed he was a good prospect for treatment and was at low risk for reoffending.
Several witnesses recommended against DJJ, pointing out that while defendant had exhibited antisocial tendencies, being insensitive or disrespectful to others, he had only a minimal history of violence. Dr. Schneider noted that unlike defendant, the majority of offenders in DJJ, including sex offenders, had violent histories. He also pointed out defendant had obtained a high school education, which placed him beyond the educational opportunities offered by DJJ. In his opinion, defendant would not benefit from commitment to DJJ. The better disposition would be to place him in a setting more restrictive and structured than Tamayo House, where he could continue to participate in the SAFER program.
There was some discussion of the possibility of sending defendant to the North County Detention Facility on a work furlough program that would allow him to continue to attend the SAFER program. Dr. Schneider felt such a result, including some incarceration and punishment, would be appropriate and helpful. Defendant’s counselor in his primary treatment group at SAFER stated she wished he could have stayed at Tamayo House, which she felt was the most stable housing a young person could get. She had worked successfully with others incarcerated at the North County Detention Facility and would welcome defendant back to SAFER if he went to the facility.
At the close of the hearing, defendant’s probation officer reported that shortly before the previous hearing date, defendant had a run-in at juvenile hall where he responded to an instructor’s request with profanity and by tossing a pencil at him. Defendant’s probation officer noted defendant had squandered all the resources and opportunities already provided to him and had not altered his behavior despite receiving many warnings. He therefore continued to recommend defendant be committed to DJJ.
The court, while noting the deficiencies of DJJ, noted defendant’s many failures to comply with the rules set for him, his contact with drug users and his eviction from Tamayo House. The court noted DJJ had a sex offender program, stating its belief that although there were problems with referring defendant to that program, there was a likelihood he would benefit from it. It committed defendant to DJJ, setting defendant’s maximum period of confinement at six years and directing that defendant undergo sex offender treatment.
This appeal followed.
DISCUSSION
“The appellate court reviews a commitment decision for abuse of discretion, indulging all reasonable inferences to support the juvenile court’s decision. [Citations.] Nonetheless, there must be evidence in the record demonstrating both a probable benefit to the minor by a [DJJ] commitment and the inappropriateness or ineffectiveness of less restrictive alternatives. [Citations.]” (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) An appellate court will not lightly substitute its judgment for that of the juvenile court but rather must indulge all reasonable inferences in favor of the decision and affirm the decision if it is supported by substantial evidence. (Ibid.; In re Asean D. (1993) 14 Cal.App.4th 467, 473.)
We examine the record presented at the disposition hearing in light of the purposes of the juvenile court law, Welfare and Institutions Code section 200 et seq. (In re Lorenza M. (1989) 212 Cal.App.3d 49, 53.) Welfare and Institutions Code section 202 provides, as relevant here, “(a) 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 . . . . [¶] (b) . . . Minors under the jurisdiction of the juvenile court as a consequence of delinquent conduct shall, in conformity with the interests of public safety and protection, receive care, treatment and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances. . . . [¶] . . . [¶] (d) Juvenile courts and other public agencies charged with enforcing, interpreting, and administering the juvenile court law shall consider the safety and protection of the public . . . and the best interests of the minor in all deliberations pursuant to this chapter.” With respect to a commitment to DJJ, “the court must be ‘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 by the reformatory educational discipline or other treatment provided by [DJJ].’ ” (In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684, citing Welf. & Ins. Code, § 734.)
The evidence here fully supports a finding less restrictive alternatives had been, and would continue to be, ineffective. Defendant had been tried, and had failed, at Tamayo House, leading to a September 2005 notification of violation. He was allowed to try again, but a short time later his transgressions were serious enough to warrant eviction. He received yet another opportunity, signing a contract with Tamayo House, but violated its terms and was evicted the following January. Defendant was perfectly aware that commitment to DJJ was the next step, but continued to violate the terms of his probation, up to and during the pendancy of the dispositional hearing.
Although the evidence defendant will benefit from commitment to DJJ is neither overwhelming nor undisputed, substantial evidence supports the court’s finding defendant is likely to receive some benefit. First, everyone agreed defendant needed a highly structured and restricted environment. Dr. Schneider stated his belief defendant would be aided by receiving punishment for his offenses. The evidence fully supports the conclusion that the reformatory aspect of DJJ will benefit defendant. In addition, defendant is a sex offender, and DJJ has a sex offender program. That some other program, such as SAFER, might also have a program, and even that its program might be better tailored to defendant’s needs, does not mandate the conclusion defendant will receive no benefit from DJJ’s program. Although it seems DJJ will not provide defendant with educational programs that might benefit him, it provides some answer to his need for punishment and treatment.
Defendant’s argument is that DJJ will not benefit him and the court should have chosen a different disposition, such as ordering him into the North County Detention Center with continued treatment in the SAFER program. The People respond with the argument that DJJ provided a superior placement to incarceration in the adult criminal justice system. The test is not whether some other program existed, or whether defendant, or even this court, might believe some other disposition to be preferable. The test simply is whether the disposition actually chosen by the trial court was within that court’s discretion. On this record, we find no abuse of discretion.
CONCLUSION
The order committing defendant to DJJ is affirmed.
We concur: MARCHIANO, P. J., MARGULIES, J.