Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. 05CEJ600867-1, Martin Suits, Commissioner.
Arthur Lee Bowie, 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, Brian Alvarez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Hill, J., and Kane, J.
INTRODUCTION
On January 10, 2005, a petition was filed pursuant to Welfare and Institutions Code section 602 in San Diego County alleging appellant, D.E., committed one count of continuous sexual abuse (Pen. Code, § 288.5, subd. (a), count one) and eleven counts of committing a lewd or lascivious act on a victim under age 14 by use of force, duress, menace, or fear (§ 288, subd. (b)(1), counts two through twelve). On June 7, 2005, appellant waived his constitutional rights and admitted a violation of section 288, subdivision (a), a lesser offense to section 288, subdivision (b)(1), as to count two. The remaining allegations were dismissed. The matter was transferred to Fresno County pursuant to Welfare and Institutions Code section 750.
Unless otherwise indicated, all statutory references are to the Penal Code.
On August 17, 2005, the juvenile court in Fresno County determined appellant’s legal residence was Madera County and transferred the case to that county. On October 18, 2005, the juvenile court in Madera County determined that appellant’s legal residence was Fresno County and transferred the case back to Fresno County. On January 20, 2006, the juvenile court in Fresno County declared appellant a ward of the court. The court ordered appellant to remain in a group home and complete a sex offender treatment program.
On February 15, 2007, a petition was filed alleging appellant violated his probation by failing to keep in contact with his probation officer and for being terminated from the sex offender treatment program at the California School of Professional Psychology on January 18, 2007. On October 17, 2007, appellant waived his right to a contested hearing and admitted the allegations in the petition.
On April 7, 2008, the juvenile court committed appellant to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF) for a maximum term of confinement of eight years. Appellant contends the juvenile court abused its discretion in committing him to DJF. The parties agree that appellant is entitled to four more days of custody credits.
DJF was formerly known as the California Youth Authority (CYA). (In re Lemanuel C. (2007) 41 Cal.4th 33, 37, fn. 2.) DJF was renamed by statutory enactment in 2005. (Welf. & Inst. Code, §§ 202, subd. (e)(5), 1000, 1703, subd. (c), 1710, subd. (a).) The DJF is part of the Division of Juvenile Justice. (Gov. Code, §§ 12838, 12838.3, 12838.5, 12838.13.) DJF is referenced in statutes, such as Welfare and Institutions Code sections 731 and 733, which formerly referred to CYA. (In re N.D. (2008) 167 Cal.App.4th 885, 890, fn. 2.) In this opinion, we will use the name DJF uniformly, even when referring to older cases and statutes.
FACTS
According to the probation officer’s report, appellant sodomized a confidential victim who was twelve years old on 12 occasions between December 2003 and August 2004. The conduct occurred at the House of Hope in San Diego where both the confidential victim and appellant were residents. Appellant admitted to investigators that he sodomized the victim, but had done so at the victim’s request.
After the disposition hearing on January 20, 2006, appellant remained in a group home. A staff meeting was conducted on May 1, 2006, to plan appellant’s emancipation on his birthday later that month. Appellant was not eligible for living in transitional housing because of his offense. However, appellant was able to rent a room from a teaching assistant at his high school.
Appellant was placed in a sex offender treatment program. On July 10, 2006, a psychological trainee from the California School of Professional Psychology reported that appellant failed to show up for two scheduled appointments. The probation officer met with appellant on July 17, 2006, and instructed appellant to contact the trainee. Appellant entered the program on August 30, 2006. On October 27, 2006, a psychological trainee reported that appellant failed to attend the sexual offender treatment program on a regular basis. The probation officer met with appellant on October 30, 2006, to inform him of the consequences of his failure to attend the program. On November 16, 2006, appellant was terminated from the program for poor attendance and not making payments.
On December 1, 2006, the probation officer met with appellant to explain that the officer had received notice of appellant’s termination from the sexual offender treatment program. Appellant told the probation officer that he failed to attend the program because he was seeking employment. The probation officer told appellant he would be given one more opportunity to complete a sexual offender treatment program.
A new psychological trainee at the California School of Professional Psychology agreed to accept appellant with the understanding that he needed to attend and participate in the individual and group counseling sessions on a regular basis. Appellant would also have to start making payments for the program.
On January 30, 2007, the probation officer received a termination letter from appellant’s new psychological trainee. Appellant was terminated from the program due to non-compliance with the program. The probation officer further reported appellant, failed to keep in contact with the probation officer, absconded from probation supervision, and that his current whereabouts were unknown as of February 9, 2007.
On October 31, 2007, the juvenile court stated it wanted to keep treatment as an option or else it would be forced to commit appellant to DJF. The court continued the disposition hearing and ordered that appellant go back to the California School of Professional Psychology for treatment. On January 14, 2008, Camellia Mohandjer, a psychological trainee, wrote a letter to the court to report appellant began his second attempt of the Fresno Adult Sex Offender Treatment Program on December 19, 2007. At the time of the letter, appellant had completed one individual therapy session and two group therapy sessions. Although appellant seemed defensive and provided little interaction, he expressed a desire to complete the program. Appellant was an active listener, but had a tendency to check his cell phone. He did not seem open to discussing his offense.
On January 17, 2008, the probation officer filed a report which stated appellant failed to complete the sexual offender treatment program and, because he was now an adult, there were no suitable alternative programs for him to attend. The probation officer recommended appellant’s commitment to DJF.
On March 3, 2008, the probation officer filed an addendum to the report. The probation officer noted that appellant’s disposition hearing was continued from January 2008 to March 2008 to obtain a progress report from Mohandjer whose letter was attached to the addendum. Mohandjer reported that as of February 12, 2008, appellant was an active participant in his sessions. Appellant was regularly attending the sessions. Appellant was enthusiastic and amenable to the program material. Appellant missed three of six sessions in January and two of six sessions in February. Appellant had five make-up sessions and needed to improve his attendance.
The probation officer stated that appellant continued to have some difficulty in attending his counseling sessions. The probation officer felt the time had arrived for the imposition of strict sanctions and recommended appellant’s commitment to DJF where he would be afforded sex offender treatment, individual counseling, victim awareness, and continued education. The probation officer filed an additional report noting that once in November, twice in February, and once in March, appellant was out of range of his electronic monitoring device. Appellant was arrested in a park in March 2008 for violating section 148.9, subdivision (a). Appellant was also in the presence of children and a known drug user.
At the disposition hearing on April 7, 2008, defense counsel argued for the court to consider an alternative to commitment to DJF. Defense counsel argued that appellant was making significant progress in treatment, though counsel acknowledged there were still some attendance issues. Counsel further argued that appellant had been in foster homes most of his life and was likely the victim of sexual abuse himself.
The prosecutor argued appellant had taken two years to complete a sexual offender treatment program and that his attendance was abysmal. Appellant was arrested in a park where children were present. The prosecutor argued that appellant was a threat to the community and a good program at DJF would be the safest and best place for appellant to be.
The court noted appellant had been given a number of chances to complete the sexual abuse treatment program and had consistently done poorly throughout the program. The court noted appellant had been picked up at a location in which he was around children when he knew one of his probation conditions was to stay away from children. The court felt it had no choice but to commit appellant to DJF for his own treatment and for public safety because appellant was unwilling to comply with and complete the treatment program.
COMMITMENT TO DJF
Appellant contends the juvenile court abused its discretion in committing him to DJF. We disagree and will affirm the judgment of the juvenile court.
Under Welfare and Institutions Code section 725.5, the juvenile court must consider the circumstances and gravity of the offense committed by the minor. The court must consider the broadest range of information in determining how best to rehabilitate a minor and to afford him or her adequate care. A juvenile court’s order may be reversed on appeal only upon a showing the court abused its discretion. Appellate courts must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.)
The record must be viewed in light of the purposes of juvenile court law. As described in Welfare and Institutions Code section 202, those purposes include rehabilitation, treatment, guidance, punishment as a rehabilitative tool, and protection of the public. (In re Teofilio A. (1989) 210 Cal.App.3d 571, 575-576 (Teofilio A.).)
It is clear that a commitment to the DJF may be made in the first instance, without previous resort to less restrictive alternatives. (In re Asean D. (1993) 14 Cal.App.4th 467, 473; In re Tyrone O. (1989) 209 Cal.App.3d 145, 151.) Courts do not necessarily abuse their discretion in ordering a juvenile to the most restrictive placement before other options have been tried. (In re Eddie M. (2003) 31 Cal.4th 480, 507.)
The gravity of an offense, coupled with other relevant factors, is a consideration in committing a juvenile to DJF. (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.) Relevant considerations include the nature, duration, and context of the delinquent conduct, including the gravity of the offense. (Welf. & Inst. Code, § 725.5; In re Samuel B., supra, 184 Cal.App.3d at pp. 1103-1104.) The court may also consider the need to hold the minor accountable for his or her actions (Welf. & Inst. Code, § 202, subd. (b)), and the community’s interest in being protected from crime during rehabilitative efforts (Welf. & Inst. Code, § 202, subd. (a); In re Lorenza M. (1989) 212 Cal.App.3d 49, 57-58).
It is error for a juvenile court to fail to consider less restrictive alternatives to DJF commitment. (Teofilio A., supra, 210 Cal.App.3d at p. 577.) In Teofilio A., neither the juvenile court nor the probation report considered alternatives to DJF commitment. Though the only evidence in the probation report showed the juvenile was an unsuitable candidate for DJF, the report concluded that the juvenile acted in a criminally sophisticated manner. Teofilio A. found the probation officer’s conclusion was grounded on supposition and speculation, not on solid evidence. Teofilio A. concluded there was not sufficient evidence to support the juvenile’s commitment to DJF. (Id. at pp. 578-579.)
Appellant had multiple opportunities from May 2006 through March 2008 to complete a sexual offender treatment program and failed to do so. Even after appellant was found in violation of his probation for absconding and failing to complete a treatment program, the juvenile court gave him another chance to complete a program. Although appellant actually participated in and attended the program, he missed five individual and group therapy meetings in January and February 2008. His attendance was noted as a factor that required improvement. Appellant’s belated attempt to comply with a key condition of his probation came after two years of opportunities to complete the program. Appellant still had an attendance problem. The juvenile court noted that it had given appellant every opportunity to complete a sex offender treatment program and appellant failed to do so.
Appellant complains that the juvenile court noted that he had been arrested in a park where children were present and that these allegations had not been pled or proved. Appellant argues this factor should not have been relied upon by the juvenile court. Appellant could have objected to the court’s reference to this event but failed to do so. It appears from the record, the court’s reference to this event was just one more example of appellant’s unsatisfactory conduct on probation. Indeed, appellant admitted the instant violation of probation, which included an allegation that he failed to stay in contact with his probation officer. Given appellant’s admission that he failed to stay in contact with the probation officer, even if the juvenile court’s reliance on this factor was error, it was harmless error because there was an additional fact supporting appellant’s violation of probation that the juvenile court could have relied upon.
Here, in contrast to Teofilio A., the probation officer considered less restrictive alternatives to a commitment to DJF but noted there were no appropriate programs for appellant. In committing appellant to DJF, the juvenile court did not abuse its discretion.
CUSTODY CREDITS
Appellant contends and respondent agrees that he was only awarded 40 days of custody credits but is entitled to 44 days of custody credits.
At the April 7, 2008, disposition hearing, the juvenile court awarded appellant 40 days of custody credits. Appellant was arrested on a warrant and booked into Fresno County Jail on October 3, 2007. He was in custody through October 17, 2007, until he was released. Appellant was entitled to 15 days of custody credits.
On March 3, 2008, appellant was arrested for violating the conditions of his probation and booked and released from the jail on the same day, entitling him to one day of custody credit. Appellant was remanded into custody on March 11, 2008, and remained in custody through his commitment to DJF on April 7, 2008. Appellant was entitled to 28 days of custody credits for that confinement. Appellant’s total custody credits should have been 44 days rather than 40 days. (See In re Randy J. (1994) 22 Cal.App.4th 1497, 1505.)
DISPOSITION
The case is remanded to the juvenile court to amend its minutes and commitment order to show that appellant is entitled to 44 days of custody credits and to forward these documents to the appropriate authorities. The judgment is otherwise affirmed.