Opinion
No. F046608.
March 13, 2006. CERTIFIED FOR PARTIAL PUBLICATION
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts II.A., II.B., II.D. and II.E.
Appeal from the Superior Court of kings County, No. 03JQ0224, James LaPorte, Judge.
Gayathri Murphy and Linnea Johnson, under appointments by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Louis M. Vasquez, Kathleen A. McKenna and Kelly C. Fincher, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Enrique O. appeals from a juvenile court's true finding that he committed sexual battery and vandalism. He contends we must reverse the finding for multiple reasons: (1) that there was insufficient evidence he possessed the specific intent to commit sexual battery; (2) that the prosecution failed to prove he knew the wrongfulness of his actions; (3) that the juvenile court erred in failing to send notices pursuant to the Indian Child Welfare Act; (4) that the juvenile court erred by not considering less restrictive placement options to inpatient treatment; and (5) that the juvenile court improperly considered information obtained in violation of the psychotherapist/patient privilege. We reject each of these contentions and we affirm the orders of the juvenile court.
I. Factual and Procedural History
In September of 2002 appellant and Carlos Q. cornered Alex T. (hereafter Alex or the victim) in a school restroom. The boys were all 11 years old. No one else was in the restroom. Appellant hit Alex and tried to pull down his pants. Carlos and appellant eventually got Alex's pants and underwear down to his knees. Alex fell to the ground, and appellant and Carlos kicked him. Appellant touched Alex's bare behind with appellant's bare hands and his exposed penis. Alex testified that appellant and Carlos struck and kicked him, and that he ran out of the restroom and reported the incident to the principal.
In a separate incident, on June 17, 2003, appellant and Carlos cut a tube at a pumping station, allowing approximately 800 gallons of diesel fuel to spill. Appellant was questioned at home about the incident and admitted he had cut the tube with Carlos and two other friends and caused other damage at the pumping station. Appellant told the officer he understood it was wrong to do so.
Based on these two incidents the Kings County District Attorney filed a petition in November of 2003 to declare appellant a ward of the juvenile court pursuant to Welfare and Institutions Code section 602. The petition alleged felony violations of sexual battery (Pen. Code, § 243.4, subd. (a)), and vandalism over $400 (Pen. Code, § 594, subd. (a).)
Further statutory references are to the Welfare and Institutions Code except as otherwise noted.
On February 26, 2004, after a contested jurisdictional hearing, the juvenile court found both allegations true but reserved making a determination of whether the violations would be felonies or misdemeanors. (Pen. Code, § 17, subd. (b).) Appellant then failed to appear for the dispositional hearing and was ultimately picked up on a bench warrant on May 6, 2004. On May 10, 2004, the court found reasonable efforts had been made to prevent removal of the minor from the mother's home and placed appellant in juvenile hall pending the next hearing three days later. On May 13 the court released appellant to his mother, but ordered that she bring him to juvenile hall one day prior to any further court proceedings so the court would have time to issue a bench warrant if he failed to appear.
A contested dispositional hearing was held on June 4, 2004. At that hearing the court ordered a section 241.1 report be prepared for the minor and ordered him to reside with his grandfather. On September 7, 2004, a section 241.1 report was filed, recommending further wardship. Appellant's probation officer recommended group home placement based on the aggressive nature of the sexual offense, appellant's home situation, and the officer's belief that an aggressive sexual assault could not be counseled on an outpatient basis. The report noted that appellant had been doing well since residing with his grandfather, but also expressed concerns about the others living in the home.
On October 7, 2004, the court declared the offenses felonies and followed the probation department's recommendation for wardship. The court also ordered appellant placed in a group home and to receive inpatient treatment for the sexual battery offense. The court calculated the maximum period of confinement at four years, eight months. This appeal timely follows.
II. Discussion
A. Specific Intent for Sexual Battery Appellant's first contention on appeal is that insufficient evidence supports the juvenile court's conclusion that appellant harbored the intent necessary for the offense of sexual battery. Penal Code section 243.4, subdivision (a) has four elements: (1) touching of an intimate part of another person, directly or through the clothing of the perpetrator (but not the victim); (2) against the person's will; (3) with specific intent to cause sexual arousal, sexual gratification, or sexual abuse; and (4) unlawful restraint of the victim by the accused or an accomplice. (See Pen. Code, § 243.4, subd. (f): "As used in subdivision(a), . . . `touches' means physical contact with the skin of another person whether accomplished directly or through the clothing of the person committing the offense.") Appellant maintains that there was insufficient evidence he harbored the specific intent to cause sexual arousal, gratification or abuse. Relying primarily on In re Jerry M. (1997) 59 Cal.App.4th 289, appellant argues that his young age (11 years old), lack of evidence of sexual arousal and lack of evidence about his sexual knowledge requires us to reverse because there was no evidence that he touched the victim for the purpose of sexual arousal, sexual gratification, or sexual abuse. Rather, he argues his conduct was more consistent with an intent to annoy the victim. We disagree. "Abuse" imports intent to hurt, cause pain or injure and becomes sexual when directed at the victim's sexual or private parts. ( People v. White (1986) 179 Cal.App.3d 193, 205-206 [court held that "it is the nature of the act that renders the abuse `sexual' and not the motivations of the perpetrator"].) While appellant argues that the evidence of whether he touched his penis to the victim's bare bottom was "contradictory," there is no question sufficient evidence supports the conclusion by the trial court that appellant placed his penis on the victim's bare buttocks. Thus, appellant only challenges the finding that he violated Penal Code section 243.4, subdivision (a), on the ground that the evidence was insufficient to show that he intended to cause sexual arousal, sexual gratification, or sexual abuse to himself or the victim. Further, unlike Jerry M., there is substantial evidence from which the juvenile court here could infer that minor acted for the purpose of sexually abusing the victim. Circumstances relevant to determining whether a touching is sexually motivated include the nature of the charged act, physical evidence of sexual arousal, clandestine meetings, "the defendant's extrajudicial statements [citation], other acts of lewd conduct admitted or charged in the case [citations], the relationship of the parties [citation], and any coercion, bribery, or deceit used to obtain the victim's cooperation or to avoid detection [citation]." ( People v. Martinez (1995) 11 Cal.4th 434, 445.) The court in In re Jerry M., supra, added "the age of the defendant" to this list of factors. ( Id. at p. 299.) Pursuant to People v. Martinez we look first at the nature of the charged act and, in this case, we find the nature of the charged act to preclude a non-sexual intent. After appellant and Carlos pulled the victim's pants and underwear down, appellant touched the victim's bare behind with his bare hands and his exposed penis. Appellant's actions were overtly sexual in nature — he placed his exposed penis on the victim's bare buttocks after forcibly pulling the victim's pants down and holding the victim down. A reasonable trier of fact could conclude here that appellant's purpose was to at least cause the victim discomfort (abuse) or for sexual arousal. In other words, unlike Jerry M., this was not a physical touching case that could be confused with a general battery but for the intent of the perpetrator (like the over-the-clothes breast touching that occurred in that case). Moreover, also distinguishing Jerry M., appellant and his accomplice cornered the victim in an empty bathroom to commit the abuse and chased him when he ran away, making it a "clandestine meeting" and showing attempt to avoid detection. To the extent appellant makes factual arguments to the contrary, they go to the weight of the evidence and were issues for the juvenile court to resolve. "`[I]t is the exclusive province of the trial judge or jury to determine the credibility of a witness. . . .'" ( People v. Ochoa (1993) 6 Cal.4th 1199, 1206, quoting People v. Jones (1990) 51 Cal.3d 294, 314.) Viewed in the light most favorable to the judgment below, a reasonable trier of fact could find that the preceding evidence sufficiently established appellant's sexual purpose under Penal Code section 243.4, subdivision (a). We conclude substantial evidence supports the juvenile court's inference that appellant acted with the requisite specific intent. B. The Prosecutor Proved the Minor Knew the Wrongfulness of his Actions Appellant next argues that the prosecution presented insufficient evidence to support the finding that appellant understood the wrongfulness of his actions. "[Penal Code] Section 26 embodies a venerable truth . . . that a young child cannot be held to the same standard of criminal responsibility as his more experienced elders." ( In re Gladys R. (1970) 1 Cal.3d 855, 864.) However, the "presumption of a minor's incapacity [may] be rebutted by clear and convincing evidence" that the minor knew his act was wrong. ( In re Manuel L. (1994) 7 Cal.4th 229, 238.) Although a minor's knowledge of wrongfulness may not be inferred from the commission of the act itself, "the attendant circumstances of the crime, such as its preparation, the particular method of its commission, and its concealment" may be considered. ( In re Tony C. (1978) 21 Cal.3d 888, 900, superceded on other grounds as stated in In re Christopher B. (1990) 219 Cal.App.3d 455.) Furthermore, a minor's "age is a basic and important consideration [citation], and, as recognized by the common law, it is only reasonable to expect that generally the older a child gets and the closer [he] approaches the age of 14, the more likely it is that [he] appreciates the wrongfulness of [his] acts." ( In re Cindy E. (1978) 83 Cal.App.3d 393, 399, fn. omitted.) Our role as a court of review is to determine whether substantial evidence supports the juvenile court's conclusion that appellant understood the wrongfulness of his conduct. ( People v. Lewis (2001) 26 Cal.4th 334, 379.) In making that determination, we review the record in the light most favorable to the People and presume the existence of every fact the juvenile court could reasonably deduce in support of that conclusion. ( Ibid.) Appellant and Carlos chose to attack the victim in a bathroom that was empty and chased the victim when he ran away. They pulled the victim's pants down in order for appellant to place his exposed penis on the victim's bare bottom. They held the victim down and laughed at him, all indicating an awareness that the conduct was wrongful. Indeed, it would be difficult to conclude that an 11 year old would not know it is wrong to hit, kick and hold down another child, let alone pull another person's pants down, remove his own pants and purposefully place his exposed penis on someone else's bare bottom. ( People v. Lewis, supra, 26 Cal.4th at p. 379, [stating, "we would find it difficult to conclude that a 13 year old would not know" that certain criminal conduct was wrong].) In reply, appellant elaborates on his argument and, elaborating on the interplay between the specific intent element of this crime and the Penal Code section 26 requirement, attempts to distinguish People v. White's holding that the nature of the act can render the abuse sexual in nature. Appellant argues, essentially, that the prosecutor was required to show he had knowledge of the sexual wrongfulness of his crime, stating the issue as "whether a specific intent to sexually abuse can be inferred from these facts." As in White, we have no problem concluding that the overtly sexual nature of the act present here satisfies its qualification as sexual abuse. The question of course is whether the prosecution was required to show appellant knew his conduct was wrong generally, or whether it was required to show appellant knew the conduct was wrong because it was sexual in nature. Regardless, on this record the evidence is sufficient to conclude appellant was not only aware of the wrongful nature of his conduct, but of its sexual nature as well. Appellant and his cohort did not attack the victim behind the school, on the playground or in any other area one might find — as appellant frames it — kids engaging in "a form of horseplay." Rather, they attacked the victim in an empty bathroom. They also chased the victim to prevent him from telling of the abuse and they forced the victim's hands and pants down during the abuse. Thus, while appellant claims the facts presented here "do not show any knowledge that the specific way in which Carlos and appellant bullied [the victim] was wrong," we simply disagree. While such an argument might be reasonable given a sexual battery charge when faced with an over-the-clothes battery that had sexual overtones, where, as here, the battery would not be sexual but for the acts of the perpetrators and their method of commission and concealment it is unpersuasive. Moreover, when appellant was interviewed regarding the vandalism charges, he expressly stated he understood the wrongfulness of those acts. As respondent points out, the juvenile court could reasonably infer that if appellant understood vandalism was wrong he also understood the wrongfulness of the acts he committed against the sexual battery victim. ( People v. Lewis, supra, 26 Cal.4th at p. 379.) In sum, contrary to appellant's assertions, we conclude there was ample evidence to support the conclusion that minor knew his conduct was wrong.
See footnote, ante, page 728.
See footnote, ante, page 728.
C. Application of the ICWA
Appellant next argues that the matter must be remanded for compliance with the Indian Child Welfare Act (ICWA). ( 25 U.S.C. § 1901 et seq.) The ICWA applies only in "child custody" proceedings involving Indian children. Child custody proceedings, for purposes of the ICWA, include foster care placements (family or institutional), termination of parental rights actions, preadoptive placements, and adoptive placements. ( 25 U.S.C. § 1903(1).) The statute expressly excludes placements and proceedings "based upon an act which, if committed by an adult, would be deemed a crime." ( Ibid.) Thus, it has long been presumed that the ICWA does not apply to out-of-home placements that arise from delinquency proceedings. ( Adoption of Lindsay C. (1991) 229 Cal.App.3d 404, 408 [ 280 Cal.Rptr. 194] ["The language of the Act makes but two exceptions: it does not apply to the custody provisions of a divorce decree nor to delinquency proceedings. ( 25 U.S.C. § 1903(1).)"]; In re Jennifer A. (2002) 103 Cal.App.4th 692, 701 [ 127 Cal.Rptr.2d 54] [noting same]; State, in Interest of D.A.C. (1997) 993 P.2d 993, 1000 [Court of Appeals of Utah court noting same]; In re Adoption of S.S. (1995) 167 Ill.2d 250, 257 [212 Ill.Dec. 590, 657 N.E.2d 935] [Supreme Court of Illinois, same]; Yavapai-Apache Tribe v. Mejia (1995) 906 S.W.2d 152, 162 [Texas court stating that ICWA "does not include divorce or juvenile delinquency proceedings."].)
Appellant acknowledges that proceedings under section 602 "are not subject to the ICWA, when placement is based on a criminal act" since the ICWA expressly excludes its application to "a placement based upon an act which, if committed by an adult, would be deemed a crime. . . ." ( 25 U.S.C. § 1903(1).) Nevertheless, appellant argues that section 602 proceedings are not necessarily excluded from application of the ICWA because not all custody issues involved in 602 proceedings are "based on" the criminal act that initiated the proceedings. To support this position, appellant points to a new California Rule of Court requiring ICWA notices in all section 601 and 602 hearings "in which the child is at risk of entering foster care or is in foster care" effective January 1, 2005. (Cal. Rules of Court, rule 1439 (b).)
Thus, to the extent appellant argues that federal funding could possibly be jeopardized by a failure to comply with the ICWA in section 602 proceedings, we disagree. We deny appellant's request for judicial notice of budget related administrative agency documents as not relevant. (See American Cemwood v. American Home Assurance Co. (2001) 87 Cal.App.4th 431, 441 [ 104 Cal.Rptr.2d 670].)
In California, the notice provisions of the ICWA are implemented by California Rules of Court, rule 1439. Delinquency proceedings, on the other hand, are governed by sections 601 and 602. Section 602 provides for declaring persons under 18 years of age wards of the juvenile court when they violate any laws other than age-based curfew laws. (§ 602.) Section 601 defines disobedience and truancy and allows for adjudication of a minor as a ward of the court for certain truant and disobedient behavior. (§ 601.) Appellant's claim is that, though his proceedings arose generally out of the section 602 petition based on his criminal acts, he was ordered placed into a group home "based on" his needs and the need to remove him from his mother's home rather than his criminal acts.
We disagree. Regardless of whether the ICWA might be implicated in certain section 602 proceedings where dependency jurisdiction is invoked due to the needs of the Indian child, this is not such a case. Rather, in this case the juvenile court expressly sought to determine whether dependency jurisdiction might be appropriate here instead of delinquency jurisdiction and the court determined it would not be. Thus, while appellant argues that his placement in foster care was "primarily based, not on a criminal act, but on the best interests of the child," the record belies this assertion. While we agree the record reflects the court's obvious concerns about the general care and well-being of appellant, we are unpersuaded that his placement outside of his mother's home was "based on" anything other than the crimes he committed that landed him in front of the juvenile court to begin with. This is made clear by the fact that the juvenile court actually ordered a section 241.1 "dual status" report to determine the relationship, if any, to appropriate dependency proceedings and the report itself concluded the nature of appellant's criminal sexual offense made wardship (and eventually group home placement) necessary. This is not a case where criminal activity simply highlights a situation that results in removal from the home for reasons in the home; rather, the offenses appellant committed here placed him squarely and unavoidably within the delinquency exception of the ICWA. Thus, appellant cannot avoid the fact that his placement outside the home was a result of his violation of two Penal Code sections that unquestionably were acts which, "if committed by an adult, would be deemed a crime." ( 25 U.S.C. § 1903(1).)
Further, we note that the interpretation appellant seeks of California Rules of Court, rule 1439 would render the rule inconsistent with the federal statute on which it is based, which is an untenable result. ( Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1011 [ 32 Cal.Rptr.3d 89, 116 P.3d 550]; see also Reno v. Baird (1998) 18 Cal.4th 640, 660 [ 76 Cal.Rptr.2d 499, 957 P.2d 1333].) Appellant nevertheless argues that "if a state law concerning child custody proceedings provides a higher standard of protection to the rights of a parent or Indian custodian than federal law, the court may apply the higher standard." ( 25 U.S.C. § 1921.) We agree, however, the Judicial Council endeavors to "establish rules governing practice and procedure in the juvenile court not inconsistent with the law." (§ 265, italics added; see also Sara M. v. Superior Court, supra, 36 Cal.4th at p. 1011, citing In re Richard S. (1991) 54 Cal.3d 857, 863 [ 2 Cal.Rptr.2d 2, 819 P.2d 843] ["The rules have the force of statute to the extent that they are not inconsistent with legislative enactments and constitutional provisions."].) Thus, we do not interpret the California Rules of Court here to expressly contradict the ICWA by ordering ICWA notices and procedures to occur in all out of home placements arising out of acts that would be deemed crimes if committed by an adult. ( Sara M. v. Superior Court, supra, 36 Cal.4th at pp. 1013-1014 [discussing need for some deference to Judicial Council's interpretation of a statute]; People v. Hall (1994) 8 Cal.4th 950, 963 [ 35 Cal.Rptr.2d 432, 883 P.2d 974] ["[T]he Judicial Council's authority . . . does not extend to the adoption of rules that are inconsistent with governing statutes. . . ."].)
We express no opinion as to whether section 602 proceedings could ever fall within the ambit of the ICWA. It may be possible for section 602 proceedings to be initiated based on, for example, underage drinking. Because the "minor in possession" statutes provide their own punishments and the only permissible punishments under the governing statutes are fines and community service, a minor who for whatever reason ran the risk of foster care after being in possession of substances deemed suitable only for adults may be entitled to tribal participation in their placement. (See, e.g., Bus. Prof. Code, § 25662 [possession of alcohol by a minor proscribing fines and community service]; Pen. Code, § 308, subd. (b) [possession of cigarettes by a minor, proscribing fines and community service].) That is not the issue before us, however.
Further, we note that such an interpretation of California Rules of Court, rule 1439 would not be without practical consequences. The burden and delay caused by application of ICWA notice requirements in every section 602 proceeding where the delinquent is "at risk" of entering foster care should not be ignored. Apart from the uncertainty, paperwork and financial burden on the courts and counties inevitably resulting from such a rule, it also creates a serious risk of delaying the resolution of delinquency matters which would rarely, if ever, be of benefit to a child. Moreover, even if we were to interpret rule 1439 as appellant desires, he would still have to show prejudice to justify reversal here. Any rule created in excess of ICWA's requirements would be a statutory right subject to a Watson standard of review. Thus, while appellant contends courts are required to provide notice to, and presumably allow intervention by, Indian tribes when Indian children fall under the jurisdiction of the delinquency court in certain delinquency proceedings, he must show how the failure to do so has prejudiced him in some way. Generally an Indian child who commits a crime will be subject to the same punishment and rehabilitation as a non-Indian child, and invoking the extensive noticing scheme of the ICWA in such cases would do nothing to change that. The tribe, while now on notice, would still have no power or authority to usurp the powers of the juvenile court in rehabilitating and/or punishing the minor. Nor would notice in a such a case further any goal of the ICWA. The intent of the ICWA is "to promote the stability and security of Indian tribes and families." ( 25 U.S.C. § 1902.) How would this goal possibly be furthered by notifying tribes that an Indian child is now subject to the rehabilitative, punitive and revocable powers of a nontribal juvenile court? In other words, appellant is essentially demanding we order notice for notice's sake, which we will not do.
People v. Watson (1956) 46 Cal.2d 818, 836 [ 299 P.2d 243].
We note the juvenile court here did seek "input" from the tribe about an appropriate placement for appellant. That was certainly not improper; it was simply not required by federal law.
Accordingly, we find the ICWA inapplicable to appellant's proceedings and, even if we were to accept appellant's interpretation of California Rules of Court, rule 1439, he could show no prejudice here.
D., E.fn_ D. Group Home Placement fn_ Appellant next contends that the juvenile court abused its discretion by ordering appellant placed in a group home because it failed to consider a less restrictive alternative. Again, we disagree. 1. Factual Background The May 2004 probation report recommended out of home placement due to the serious nature of appellant's sexual battery offense, the apparent lack of adult supervision and the fact appellant — who was 11 years old — had not attended school for some time. Defense counsel objected to the group home placement and argued at the disposition hearing that the court need not remove appellant from his mother's custody. Numerous family members requested appellant not be removed from their care, and the prosecutor pointed out that the serious charges against appellant warranted the recommendation and that appellant's family members had failed to keep track of his whereabouts or get him into school for the past nine months. Defense counsel then requested that the court continue the hearing to obtain a section 241.1 report and the court, after noting the mother's failure to bring the child to prior hearings, placed appellant with his grandfather pending the section 241.1 report. A Supplemental Juvenile Court report subsequently indicated appellant was doing well in his grandfather's home but expressed concern about appellant residing with his seven year old aunt given the sexually aggressive nature of his crime, as well as the criminal and drug issues of other members of the home. The report also indicated that appellant's grandfather had enrolled appellant in counseling, but had not informed the counselor about the sexual nature of the offense. Based on the serious nature of appellant's offense, a lack of out patient treatment for the sex offense and the lack of long term stability in appellant's home life, the report recommended an out-of-home placement. The report included a letter from appellant's counselor indicating she felt it would be difficult to treat appellant on an outpatient basis. In October 2004 the contested dispositioAn hearing resumed and the parties stipulated that the grandfather would be temporarily appointed appellant's guardian. Appellant's counsel called the counselor as a witness, where she stated she did not believe she had enough information to comment on appellant's treatment. Appellant's grandfather testified he did not tell the counselor about the sexual battery charges because he was not aware of them and that appellant was doing well in his care. He testified he was willing to continue to care for appellant and abide by any orders of the court. He acknowledged that two of his children living in the home had histories of drug problems and that appellant's father lived with him and was recently out of prison for a parole violation.
The court ordered group home placement. In so doing, the court stated:"The court has reviewed the various recommendations in this particular case. The Court is cognizant of the intent by Mr. Smith to appeal its decision. "The Court is going to adopt the recommendation, however, it does note that it is interested in — in any group home recommended by the tribe for this particular minor. If there is available a group home that the tribe believes is appropriate, I think that the probation officer needs to have that information as soon as possible. "The minor needs to be made available for group home interviews which is how it's actually conducted in this particular County. Presumably, Mr. [O.], who has been more cooperative than Miss [C.] has been in terms of getting the minor here, will make sure that he is available for group home interview, has to be done — has to be such that the probation officer is able to contact Mr. [O.] and he is available within just a few moments to bring the child down to interview. Of course the problem with the past contact the Court having [ sic] with Miss [C.] is that the child never showed up to court and we had to have an arrangement issuing multiple bench warrants and finally putting the minor in before the hearings so that we'd make sure that he was present. "I don't characterize Ms. Brown's testimony the same way Mr. Smith has, nor the letter that she wrote on September the 20th, 2004." Appellant argues both that the court erred in failing to order a psychological evaluation and in not giving "adequate consideration" to placing appellant with his grandfather. We disagree with both these claims.
2. "Consideration" of Less Restrictive AlternativesAppellant contends the court erred in not considering less restrictive placements because, he contends, "there was no evidence to indicate that inpatient treatment was the court's only option." We review the juvenile's court's dispositional order for abuse of discretion. ( In re Reynaldo R. (1978) 86 Cal.App.3d 250.) There is no absolute rule barring placement in a restricted setting until less punitive placements have been attempted. ( In re James H. (1985) 165 Cal.App.3d 911, 922; In re Teofilio A. (1989) 210 Cal.App.3d 571, 577.) The court is not required to state on the record each factor that led to the selection of a particular placement or to the rejection of less restrictive alternative placements. ( In re Teofilio A., supra, 210 Cal.App.3d at p. 577.) In this case, the record fully supports the reasonableness of group home placement. The argument advanced by appellant establishes, at most, that appellant may have benefited from a less restrictive placement with his grandfather. However, appellant's position ignores that the juvenile court was bound to consider not only appellant's interests but also the interests of society, and that under the juvenile court law his interests include being held accountable for his actions. In In re Reynaldo R., supra, 86 Cal.App.3d at page 256, this court held that the juvenile court did not abuse its discretion in committing the minor to CYA, stating, "The minor's record, although justifying a less restrictive disposition, was sufficient for a finding of probable benefit to the minor by a Youth Authority commitment." In this case, even if a less restrictive alternative was justified, there was, as demonstrated above, substantial evidence that a less restrictive alternative would be inappropriate and that an inpatient group home setting would be of probable benefit to appellant. Therefore, the court did not abuse its discretion in ordering appellant committed to a group home. Further, the court was well aware of the facts and circumstances of the underlying offense and justifiably viewed it as a serious one, despite the attempts of appellant's counsel and family to minimize the sexual and violent nature of appellant's abuse of the victim. Given the findings of the probation officer, the testimony of appellant's counselor, the unsuitability of the grandfather's home and the nature of the crime, the court reasonably determined that appellant needed additional reformation and rehabilitation that an in-home placement could not provide. Commitment of appellant to the group home did not constitute an abuse of discretion and reversal of the dispositional order is not required.
3. Psychological EvaluationAppellant further argues that the group home placement was in error because the court should have first ordered a psychological evaluation. A juvenile court may order a diagnostic evaluation "to assist in determining the appropriate treatment of the minor. . . ." (§ 741.) Such an order is discretionary, and while it might in some case be error to refuse to do so, we are not aware of any decisions to that effect. (Cf., e.g., In re Patrick H. (1997) 54 Cal.App.4th 1346, 1359 [once minor was found incompetent to assist in his defense in section 602 proceedings, "the juvenile court should have referred him for an early evaluation for possible initiation of LPS civil commitment proceedings"].) We find no error in refusing to order a psychological evaluation in this case. In deciding whether to order a psychological evaluation, the court first must assess whether it has sufficient information about the minor, thereby obviating the need for further study. ( In re Norman H. (1976) 64 Cal.App.3d 997, 1004 [where a psychologist and a Medi-Cal doctor had previously examined the minor, the court had sufficient information to render a CYA diagnostic assessment unnecessary].) "The controlling factor then is whether the court believed such a study would be in the best interest of the minor." ( Ibid.) Here, the court ordered a section 241.1 report, and had at least two probation reports prepared over the length of the adjudication. Further, the court received testimony from the counselor who had begun treatment with appellant, as well as testimony from the appellant's grandfather and mother about him. The record in this case thus demonstrates that, "at the time of the disposition hearing, the court had a good deal of information" concerning the minor. ( In re Norman H., supra, 64 Cal.App.3d at p. 1004.) The record also demonstrates the court "did not feel any further study was necessary or in the best interest of the minor." ( In re Norman H., supra, 64 Cal.App.3d at p. 1004.) The court expressed its concern about the length of time psychological evaluation could take, but did order a section 241.1 report. The court thus had the 241.1 report which was prepared to determine appellant's best interests, the probation evaluations, testimony from appellant's grandfather, testimony from appellant's treating psychologist and appellant's presence himself at the hearings. In viewing the record before us, we indulge all reasonable inferences to support the juvenile court's decision. ( In re Khamphouy S. (1993) 12 Cal.App.4th 1130, 1135.) Applying that deferential standard, we find enough information in the record to support the court's belief that further study was unnecessary and that it would not serve the minor's best interest. ( In re Norman H., supra, 64 Cal.App.3d at p. 1004.)
E. Psychotherapist/Patient Privilege [fn*]Finally, appellant argues that the juvenile court's disposition must be reversed because it was improperly based on information received through a violation of the psychotherapist/patient privilege. Appellant implicitly acknowledges that the privilege was waived when counsel called the counselor to testify and appellant and his guardian expressly stated that they waived the privilege, but he argues the waiver was "coerced" because he only called the counselor due to the previous improper violation of the privilege. In the probation officer's report, the officer stated he had contacted the counselor and "confirmed the minor and his grandfather signed a release of information." At the continued disposition hearing appellant's counsel indicated he was concerned the counselor had shared information with probation without the proper authorization to do so. The court indicated it planned to rely on the report and counsel called the counselor as a witness. When the counselor expressed concern that she was violating a privilege, counsel did not seek to determine whether the witness properly discussed appellant's case with probation or further an objection to the probation report. Rather, defense counsel told the court, "[b]y putting her on the stand we're prepared to waive the privilege today to get her opinions and comments that had occurred [ sic]." Appellant's mother and guardian immediately expressly agreed to waive the privilege. Accordingly, there is simply no basis in the record to support appellant's claim that the privilege was violated. (See Evid. Code, § 912 [privilege waived by consent].) Further, even assuming the privilege had not been appropriately waived prior to the hearing, appellant later waived the privilege in an attempt to show that the grandfather's home could be a reasonable placement option and, in fact, appellant's grandfather attempted to introduce letters from the counselor to help appellant's proceedings long before counsel ever objected on privilege grounds. He cannot now claim he was "coerced" when he desired the counselor's testimony to argue for placement with his grandfather. If he believed the probation report was in error, he should have examined the counselor with respect to the waiver she received prior to discussing appellant's case with probation rather than waiving the privilege in an attempt to elicit more favorable testimony. There was no error.
Regardless, however, to forestall any claim of ineffective assistance of counsel, we note that counsel's choice was a reasonable one given the gravity of appellant's offense and the clear problems appellant's family had controlling appellant in the home. Those factors alone could warrant group home placement. ( In re James H., supra, 165 Cal.App.3d at p. 922 [court is not required to attempt less restrictive placements to justify CYA placement, let alone group home placement].) We could thus conclude, even absent the conflicting evidence from the counselor about whether appellant needed inpatient treatment, that the court did not abuse its discretion in placing appellant in a group home in this case. Accordingly, even if there was any error in relying on that portion of the probation report, it was harmless.
DISPOSITION
The judgment is affirmed.
Vartabedian, J., and Dawson, J., concurred.
Appellant's petition for review by the Supreme Court was denied June 28, 2006, S142891. Baxter, J., did not participate therein.