Opinion
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of Kern County, No. JW095471-01, Jon E. Stuebbe, Judge.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Gomes, Acting P.J., Dawson, J. and Hill, J.
INTRODUCTION
On August 20, 2008, a petition was filed pursuant to Welfare and Institutions Code section 602 alleging appellant, F.C., Jr., committed penetration with a foreign object (Pen. Code, § 289, subd. (a)(1), count one), forcible lewd acts on a child under age 14 (Pen. Code, § 288, subd. (b)(1), count two), and lewd and lascivious acts on a child under age 14 (Pen. Code, § 288, subd. (a), count three). At the conclusion of a contested jurisdictional hearing on October 20, 2008, the juvenile court found the allegations true beyond a reasonable doubt.
Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.
At the conclusion of the disposition hearing on November 18, 2008, the juvenile court found appellant to be a ward of the court and committed him to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF) for the maximum term of confinement of 12 years.
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. (§§ 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 sections 731 and 733, that 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.
Appellant contends the juvenile court’s finding on count three must be reversed because it is a lesser included offense of count two. Appellant argues that pursuant to Penal Code section 654 (section 654), there should have been a stay on all but one count because his offense constituted a single act. Appellant finally contends the juvenile court abused its discretion in committing him to DJF. Respondent concedes the first issue, but not the remaining contentions.
FACTS
G. was eight years old at the time of the hearing. G. lives with his mother, father, and two brothers. One day, G. was playing around in his mother’s room. G. began talking to his mother about a “boo-boo.” Using a stuffed monkey, G. indicated he suffered an injury to his rectum. Appellant gave G. a “boo-boo” on his bottom. Appellant pulled off G.’s underwear. Using the stuffed animal, G. explained that appellant stuck his finger into G.’s bottom. Appellant’s act hurt G. who later saw blood on toilet paper after wiping his bottom.
Photographs of G.’s anus after the incident were accepted into evidence. A sexual abuse examination report was also accepted into evidence. G. suffered a laceration to his anus that was three-quarters of a centimeter.
In attempting to keep away from appellant, G. grabbed a shelf over the bed which became dislodged and pulled away from the wall. This was when appellant pulled down G.’s underwear. G. explained that his brother had been in the room earlier but left. G. yelled out to his brother when appellant penetrated him.
A sergeant sent to investigate the incident noticed the palm of G.’s hand was red. The sergeant received the bloody tissue paper as evidence. The bed in the mother’s room had shelves attached to it near the headrest. One shelf had been pulled off. G. told the sergeant that he grabbed the shelf to prevent appellant from turning him over.
Appellant testified that while in the bedroom, he pushed G. away when G. tried to kiss him on the mouth. G. tried to touch appellant’s private part with his leg. G. asked why appellant would not do things to him because G.’s cousin did so. G. pulled down his shorts and asked appellant to do things to him. Appellant denied placing his finger into G.’s bottom and taking off his shorts. Appellant did not know how the shelf became detached from the bed. Appellant said he saw G.’s brother pull down G.’s shorts and had seen inappropriate behavior between the two on an earlier occasion.
LESSER INCLUDED OFFENSE
Appellant contends, and respondent concedes, that Penal Code section 288, subdivision (a) alleged in count three is a lesser included offense of Penal Code section 288, subdivision (b)(1) alleged in count two. Where, as here, there is evidence of forcible lewd and lascivious conduct and the allegation of lewd conduct is based on the same criminal act, Penal Code section 288, subdivision (a) is a lesser included offense of Penal Code section 288, subdivision (b)(1). (People v. Ward (1986) 188 Cal.App.3d 459, 470-472 (Ward); also see People v. Chan (2005) 128 Cal.App.4th 408, 421.) The proper remedy is to dismiss the lesser included offense. (Ward, supra, 188 Cal.App.3d at p. 473.) Accordingly, we will direct the juvenile court on remand to dismiss count three.
Appellant contends there was a single criminal act and objective in this case. We agree and will apply section 654 to count two.
Section 654 applies not only to the same criminal act, but also to an indivisible course of conduct committed pursuant to the same criminal intent or objective. (People v. Latimer (1993) 5 Cal.4th 1203, 1207-1209, citing Neal v. State of California (1960) 55 Cal.2d 11, 15, 18-19; see also People v. Perez (1979) 23 Cal.3d 545, 551.) Section 654, however, does not apply when the evidence discloses a defendant entertained multiple criminal objectives independent of each other. In such a case, the court may impose punishment for independent violations committed in pursuit of each objective even if those violations were parts of an indivisible course of conduct. (In re Jose P. (2003) 106 Cal.App.4th 458, 469.)
“The divisibility of a course of conduct depends upon the intent and objective of the defendant.” (People v. Liu (1996) 46 Cal.App.4th 1119, 1134.) If each criminal act is incidental to, or accomplished a single objective, the defendant may be found to harbor a single intent. If the defendant harbored multiple criminal objectives independent of one another, he or she may be punished for each statutory violation even if they were part of an indivisible course of conduct. (People v. Harrison (1989) 48 Cal.3d 321, 335 (Harrison).)
Whether section 654 applies is a question of fact for the trial court which is vested with broad latitude in making its determination. Its findings will not be reversed on appeal if there is any substantial evidence to support them. Appellate courts must view the evidence in the light most favorable to the trial court’s findings and presume the existence of every fact the trier could reasonably deduce from the evidence. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143; also see People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1313; also see People v. Nichols (1994) 29 Cal.App.4th 1651, 1657.)
Respondent argues there were two criminal acts because appellant first removed the victim’s shorts and then forcibly turned the victim over and digitally penetrated him. Although G.’s testimony was not completely clear on this point, it appears that G. grabbed the shelf as appellant was taking off his shorts. Appellant turned G. over and digitally penetrated his anus only once. Under these circumstances, appellant was applying force to accomplish count one, but only that amount of force necessary to accomplish the single act of digital penetration. The act of pulling the victim’s shorts down was not separate from the appellant’s criminal objective, but merely incidental to it.
This case, therefore, is factually distinguishable from a case like Harrison in which the California Supreme Court found that multiple acts of digital penetration during a short span of time constituted separate and distinct crimes. (Harrison, supra, 48 Cal.3d at pp. 321-326, 335-338.) Appellant committed a single act of digital penetration and cannot be punished twice for that conduct.
The maximum term of confinement for Penal Code section 289, subdivision (a) is three, six, or eight years. Counts two and three have the same sentencing triad as count one. It appears that in selecting the maximum term of confinement, the juvenile court added one third the midterm on counts two and three, two years for each count, consecutively to appellant’s eight-year term on count one. Because count three must be dismissed and count two stayed pursuant to section 654, the juvenile court’s dispositional orders will be vacated and the matter remanded for the juvenile court’s reconsideration.
In selecting appellant’s term of confinement, the juvenile court is not compelled to only select the maximum term of confinement. Amendments to section 731 permit the juvenile court to select a term less than the maximum term of confinement based on the facts and circumstances of the case. (In re Carlos E. (2005) 127 Cal.App.4th 1529, 1541-1543.)
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 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 law. As described in 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. (§ 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 (§ 202, subd. (b)), and the community’s interest in being protected from crime during rehabilitative efforts (§ 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 a previous juvenile record. Appellant engaged in lewd and lascivious conduct as a seven-year-old and as a nine-year-old he brandished a weapon. The probation officer noted the victim in this offense was under four feet tall and weighed 100 pounds compared to appellant who is five feet ten inches tall and weighs 260 pounds. The probation officer considered and rejected several alternatives to committing appellant to DJF. These included commitment to juvenile hall, Camp Erwin Owen, a juvenile sex offender facility under the supervision of the probation department, and group home placement. Because of appellant’s denial of culpability and unwillingness to take responsibility for any of his actions, all these options were rejected.
At age seven, appellant was referred for an act of lewd and lascivious conduct with a child. At age nine, appellant was placed on probation for brandishing a deadly weapon other than a firearm in a threatening manner. Appellant successfully completed probation and the petition was dismissed in 2002. Appellant had a referral later in 2002 for bullying during recess. In 2003, appellant was terminated from the early intervention program, his participation considered a success.
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. Defense counsel argued appellant should be considered for placement in a group home.
The juvenile court noted it considered the matter at some length because the recommendation to commit appellant to DJF was “a very serious recommendation.” In light of all of the facts and circumstances of the case, the court concluded commitment to DJF was the appropriate placement for appellant. Although the juvenile court did not expressly discuss alternatives to committing appellant to DJF, it considered the probation report and the arguments of counsel in rejecting less restrictive alternatives unlike the court in Teofilio A. In committing appellant to DJF, the juvenile court did not abuse its discretion.
DISPOSITION
The juvenile court’s dispositional orders setting appellant’s maximum term of confinement to DJF are reversed. On remand, the juvenile court is ordered to dismiss count three, stay count two pursuant to section 654, and to conduct a new hearing to determine the length of appellant’s commitment to DJF. The juvenile court’s orders at the jurisdiction hearing are affirmed.