Opinion
E032942.
10-30-2003
In re JONATHAN U., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JONATHAN U., Defendant and Appellant.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil P. Gonzalez, Supervising Deputy Attorney General, and Stacy A. Tyler, Deputy Attorney General, for Plaintiff and Respondent.
Minor admitted that he committed a lewd act upon a child under the age of 14 years (Pen. Code, § 288, subd. (a)). Minor was thereafter declared a ward of the court (Welf. & Inst. Code, § 602) and placed in a foster care treatment facility under various terms and conditions. Subsequently, minor admitted that he violated the terms and conditions of his foster care placement as alleged in a section 777, subdivision (a)(2) petition. Minor was then committed to the California Youth Authority (CYA) for a maximum period of eight years. Minors sole contention on appeal is that the juvenile court abused its discretion in committing him to CYA. We find no abuse and will affirm the judgment.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
I
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the probation reports.
On June 27, 2001, the then 14-year-old minor told his then 9-year-old stepsister that if she did not pull down her shorts, he would call their father and tell him a lie about her. After she complied, minor used a vibrator to touch her vaginal area for about one to two minutes. When she told him to stop, he did so. Minor then removed a pornographic videotape from his parents closet and played it for his stepsister and stepbrother, who watched it for several minutes. Minor had sexually touched his stepsister at least one other time in the past.
Minor was subsequently arrested. After he admitted to committing a lewd act upon a child under the age of 14 years (Pen. Code, § 288, subd. (a)), he was declared a ward of the court and placed in a foster care treatment facility under various terms and conditions.
On May 22, 2002, minor left his treatment facility without permission. He was gone for six hours. When he returned, minor was reminded of the terms and conditions of his stay at the facility, including term No. 3 forbidding minor from leaving the treatment center without authority. Despite minors violation of the rules at the center, the facility director and minors therapist allowed minor to remain in the program.
However, on September 5, 2002, about 10:50 p.m., minor again absconded from his placement center without permission by climbing out of his bedroom window. He was gone for three days. While he was gone, he smoked marijuana and methamphetamine. He returned to the treatment facility because he "got bored" and was "tired of being on the run . . . ." He showed no remorse and "appeared to minimize his actions and behavior . . . ."
On September 10, 2002, the director of the treatment facility and minors therapist requested that minor be terminated from the program. The termination report noted that minor had made "[n]o [n]oticeable [p]rogress" in any of his target categories; that he had "been sneaking out of school to meet a girl"; and that he remained "stuck on his wants and desires without wanting to do what was necessary to earn them." Minors prognosis was "[p]oor." The report further noted that minor "should be considered at a high risk for sexually acting out and/or reoffending. He ha[d] demonstrated a total lack of concern for others and a willingness to take advantage of others to get self-satisfaction." The report also indicated that minor "must continue in a Sex Offenders Treatment Program" and that he should be moved to "a much higher level of care facility, which offers little to no contact with non-program personnel."
On September 12, 2002, a section 777, subdivision (a)(2) petition was filed, alleging that minor had violated the terms and conditions of his placement. On September 27, 2002, minor admitted that he violated the terms and conditions of his placement.
At the dispositional hearing on November 6, 2002, after the court read and considered the probation reports and reports from his placement center and heard testimony from minors father and argument from counsel, minor was committed to CYA.
II
DISCUSSION
Minor contends the juvenile court erred in committing him to CYA without adequately considering less restrictive alternatives. We disagree. The record clearly demonstrates the court considered the benefits of CYA on minor and the alternatives, but rejected the alternatives as inappropriate before arriving at the decision to commit minor to CYA.
We review a placement decision only for abuse of discretion. (In re Asean D. (1993) 14 Cal.App.4th 467, 473.) An appellate court will not lightly substitute its decision for that of the juvenile court and the decision of the court will not be disturbed unless unsupported by substantial evidence. (In re Eugene R. ( 1980) 107 Cal.App.3d 605, 617.) Since retribution must not be the sole reason for punishment, there must be evidence demonstrating probable benefit to the minor and the inappropriateness or ineffectiveness of the less restrictive alternatives. (In re Michael D. (1987) 188 Cal.App.3d 1392, 1396; In re Teofilio A. (1989) 210 Cal.App.3d 571, 576.) Evidence relevant to the disposition includes, but is not limited to, the age of the minor, the circumstances and gravity of the offenses committed, and the minors previous delinquent history. (§ 725.5.)
After a review of the entire record, we conclude there is substantial evidence here to support the commitment to CYA. Minor, who is 17 years old, is in serious need of educational services or vocational training, substance abuse counseling, and anger management counseling. In addition, based on his current offense, placement violations, and past circumstances, minor is in dire need of sexual predator treatment and victim awareness counseling. Minor has not expressed remorse for his actions, felt frustrated with the program, and was "tired of people watching over his back." The record sufficiently supports the courts determination that minor would benefit by the reformatory, educational, disciplinary or other treatment provided by CYA.
Minors principal argument against the appropriateness of his CYA commitment is that the juvenile court failed to fully explore less restrictive alternatives. Contrary to minors assertions, the record here demonstrates that the court considered less restrictive alternatives but rejected them as inappropriate. Minor has a history of a serious criminal offense and a history of failure to cooperate with the court and the placement facility. In an effort to rehabilitate minor, the court, as well as the director of the placement facility, gave minor an opportunity to mend his delinquent behavior at the placement center. However, minor failed to take advantage of the programs at the treatment center, even after his first violation of the placement rules. Rather, he absconded from the facility twice and failed to make progress in his treatment programs. And while he was absent without leave from the facility, he smoked marijuana and methamphetamine. He further admitted that he had been sneaking out of school to meet a girl and may have gotten her pregnant. Based on minors poor performance at the placement center, experts at the facility opined that minor required a "much higher level of care . . . ." Minors age, the circumstances and gravity of the current offenses, minors previous delinquent history, the benefits of CYA on minor, and the safety of the community all establish that minor requires commitment in a more structured and secure environment than placement can offer. The court properly found a less restrictive alternative to be unfeasible.
The record need only show, as it does here, probable benefit to the minor from commitment to CYA and that less restrictive alternatives were considered and rejected. (In re George M. (1993) 14 Cal.App.4th 376, 379; In re Teofilio A., supra, 210 Cal.App.3d at p. 576.) The court articulated reasonable concerns for the community and minors rehabilitation. We thus conclude the court did not abuse its discretion by committing minor to CYA.
III
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P.J. and McKINSTER J.