Opinion
Super. Ct. No. JJD050199-98
APPEAL from a judgment of the Superior Court of Tulare County. Hugo J. Loza, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Jeffrey S. Kross, 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, Stephen G. Herndon and Maureen A. Daly, Deputy Attorneys General, for Plaintiff and Respondent.
Before Cornell, Acting P.J., Gomes, J. and Dawson, J.
INTRODUCTION
On September 23, 2004, a petition was filed pursuant to Welfare and Institutions Code section 602 in Kings County alleging that appellant, Julian C., Jr., had committed a lewd and lascivious act on a child under age 14 (Pen. Code, § 288, subd. (a), count 1) and sodomy (Pen. Code, § 286, subd. (a), count 2). On September 29, 2004, Julian admitted count 1. Count 2 was subsequently dismissed.
A petition was filed against Julian in 1998 alleging felony commercial burglary. That petition was dismissed without prejudice and Julian was placed on informal probation. Julian had prior sustained petitions in 1999 for misdemeanor petty theft and trespassing and in 2001 for misdemeanor petty theft and trespassing.
On October 18, 2004, appellant was declared a ward of the juvenile court, and the court found count 1 to be a felony. Julian was placed on probation upon various terms and conditions. The court ordered Julian into a group home and to complete sex offender counseling. On November 5, 2004, appellant was placed in ACTS for Children (ACTS) in Mentone, California.
On September 20, 2005, Julian was charged with a violation of probation because the court’s previous orders had been ineffective in rehabilitating him. On October 25, 2005, a contested hearing was conducted on the alleged violation of probation.
On October 3, 2005, Tulare County accepted transfer of the case from Kings County. This appeal is from orders of the juvenile court in Tulare County.
On January 24, 2006, the court sustained the allegations of the petition and ordered Julian’s commitment to the Department of Corrections and Rehabilitation, Juvenile Justice (Juvenile Justice). The court set Julian’s maximum term of confinement at three years, the mitigated term for an adult offender. The court awarded 171 days of custody credit. Julian was ordered to provide a sample of his DNA and to register as a sex offender.
On appeal, Julian contends the juvenile court abused its discretion in committing him to Juvenile Justice.
FACTS
On September 21, 2004, Julian’s sister, who was 13 years old, told police officers appellant touched her private area four years earlier. The sister reported that Julian’s brother, who was 10 years old, climbed out of his bedroom window and was crying in the front yard. The brother told Julian’s sister that Julian exposed his penis to the brother while they were in the living room. The brother became fearful and climbed out the window. When officers questioned the brother, he confirmed his sister’s statement. The brother further explained that Julian had sodomized him several days earlier and threatened him not to tell anyone what happened or Julian would kill him. Another younger brother also reported that, about three years earlier, Julian had exposed himself and touched that brother’s private parts.
Julian waived his Miranda rights and admitted molesting his brother “in the butt.” Julian said he and his brother were watching a “dirty movie” on television and the brother told Julian he wanted to have sex. Julian admitted that he placed his penis into his brother’s anus.
Miranda v. Arizona (1966) 384 U.S. 436.
Procedural History
Violation of Probation
A contested probation violation hearing was held on October 25, 2005. Ron Rockenbach, an employee for ACTS, testified that on September 16, 2005, the facility issued a seven-day notice terminating Julian’s placement in the program.
The termination notice was a detailed letter summarizing Julian’s conduct during his placement with ACTS. When Julian was admitted to ACTS in November 2004, he demonstrated problematic behaviors that did not diminish during his stay. The ACTS program has a five-level behavioral system, with level five being the highest level of behavior. Julian consistently failed to maintain appropriate levels. He was at the lowest level 10 times, at level two 4 times, at level three twice, and at level four 2 times. Julian failed to self-report in daily accountability groups and in the Program for Appropriate Adolescent Sexual Expression (PAASE).
Julian was warned by his therapist that his placement was in jeopardy if his behavior did not improve. Julian failed to take the California exit exam and refused to attend an anger management group. He also failed to follow staff directions. Julian confronted staff and peers with abusive language. Julian’s participation and behavior during PAASE was poor. Because he failed to maintain a passing score in this program, he was not allowed to keep his internship in culinary arts training.
Rockenbach testified that Julian was discharged for noncompliance with rules, oppositional behavior, and inability to progress in PAASE. Julian failed to appear for groups on a daily basis. His score for participation was only marginal in July and August 2005. The court found Julian in violation of probation.
Disposition Hearing
The probation officer’s report for the disposition hearing was filed on November 15, 2005. When interviewed by the probation officer, Julian acknowledged that his behavior and attitude in the group home were not always good. Julian believed he benefited from the time spent in the group home and stated he did not want to reoffend. Julian denied gang membership but said he affiliated with the Nortenos. Julian was taking Prozac for depression and Clonidine for attention deficit hyperactivity disorder.
At the time the probation report was filed, Julian had been 18 years old for five months.
The probation officer noted aggravating factors in Julian’s offense. The crime involved callousness, it was carried out with planning or sophistication, and Julian took advantage of a position of trust. The probation officer noted an additional aggravating factor for Julian’s unsatisfactory prior performance on probation. The probation officer found no mitigating factors.
The probation officer explained that Julian had made only minimal progress in the ACTS program after 10 months and was uncooperative, defiant, and disrespectful. Officials at a team meeting at the group home concluded Julian was not benefiting from the program. The probation officer stated that a primary concern of the probation department was Julian’s inappropriate sexual behavior, which did not appear to be isolated to the one Penal Code section 288, subdivision (a) offense. When Julian was asked to write a letter of apology to his brother, he refused to do so. Julian tried to justify his behavior to investigators by telling them his conduct was consensual.
In considering less restrictive alternatives, the probation officer explained that consideration was given to the long-term program, the Tulare County Youth Facility, and the short-term program. The probation officer explained that none of these programs could provide the sex offender counseling Julian needs so desperately. The probation officer considered placement in a group home, a foster home, or the home of a relative, but rejected these because they were inappropriate given Julian’s age and the fact Julian had failed after 10 months in the ACTS program.
Because Julian made only minimal progress in the ACTS program, the probation officer believed Julian needed a higher level of supervision to assist him in completing a sex offender treatment program. Julian would have the opportunity at Juvenile Justice “to participate in extensive sex offender counseling.” Also, Juvenile Justice would provide continued education and substance abuse counseling and provide 24-hour supervision in a highly secured setting. The probation officer therefore recommended Julian’s commitment to Juvenile Justice.
Timothy Zavala, a clinical social worker, testified for Julian at the disposition hearing. Zavala explained that there was a comprehensive adolescent sexual responsibility program at the Tulare Youth Services Bureau that takes between 12 to 24 months to complete. The curriculum is based on cognitive behavioral therapy and psychological education. Based on his review of reports, a two-hour interview with Julian, a quarterly progress report from ACTS, and probation reports, Zavala concluded Julian demonstrated only a moderate risk of committing a new sexual offense. Julian did not show indiscriminate choice of victims and had never offended against a stranger.
Zavala believed Julian would require a comprehensive health service plan and therapy to address depression, impulsivity, and angry outbursts. Zavala believed appellant would be a good candidate for the program at the Tulare Youth Services Bureau. Zavala contacted members of Julian’s family. Julian’s grandmother was willing to house him as he attended the program.
Zavala acknowledged on cross-examination that there were no empirically validated instruments to accurately assess the risk of adolescents sexually reoffending. Zavala agreed that Julian had a history of interpersonal aggression, impulsivity, and poor anger management. Zavala had concern over Julian’s very oppositional and defiant behavior. The parties stipulated to admission into evidence of disciplinary reports from the juvenile detention facility which showed Julian refused to earn points, was placed on suicide watch, was involved in an altercation, and repeatedly flooded his toilet.
Julian’s father testified that he would ensure Julian attended counseling and therapy.
Julian testified that he felt sorry for his brother and was willing to attend sex offender therapy. Julian explained that he was suicidal and defiant in the juvenile detention facility because he did not feel safe there. Julian admitted he was forced to leave the ACTS program for behavioral problems, not getting along with other kids, and failing to cooperate with his therapist. He acknowledged he knew he could be removed from the program for failing to participate in the program and for fighting. Julian admitted he broke his promises to behave.
The juvenile court noted both parties did an excellent job presenting their cases and that in many respects the outcome was a close call. The court observed that until Julian committed the sexual offense, his record was insignificant. The court found that while Julian had some success in the group home, he failed to cooperate and was terminated from the program. The court found that because of Julian’s age, he was not eligible to be sent to another group home. The court noted that Juvenile Justice has a sexual offender treatment program. The court found Julian did not do well in the group home and failed to complete his treatment program. The court further found that, although Julian succeeded in internalizing some information while at the group home, he had a consistent history of not doing well in treatment programs. The court stated it did not have confidence that Julian would comply with the terms and conditions of probation and ordered Julian’s commitment to Juvenile Justice.
The juvenile court referred to Juvenile Justice as the California Youth Authority (CYA), the predecessor to Juvenile Justice. Because older case law refers to CYA, we use the two terms interchangeably in our analysis.
DISCUSSION
Julian contends the juvenile court abused its discretion in committing him to Juvenile Justice. 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 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 CYA 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.) The gravity of an offense, coupled with other relevant factors, is always a consideration. (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.)
It is error for a juvenile court to fail to consider less restrictive alternatives to CYA 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 CYA commitment. Though the only evidence in the probation report showed the juvenile was an unsuitable candidate for CYA, 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 CYA. (Id. at pp. 578-579.)
Here, in contrast to Teofilio A., both the juvenile court and the probation officer considered less restrictive alternatives to a commitment to Juvenile Justice. The probation officer referred to three programs in Tulare County and considered the possibility of placing Julian in a group home or with a relative. Julian’s poor performance in the ACTS program, his failure to acknowledge the seriousness of his conduct, and his apparent lack of remorse for sexually abusing his own brother were all reasons supporting the juvenile court’s rejection of a less restrictive alternative to a commitment to Juvenile Justice.
On appeal, Julian reargues the evidence he submitted for a less restrictive commitment than Juvenile Justice, especially the testimony of social worker Zavala. It was for the juvenile court, not this court, to evaluate the testimony of the witnesses and to accord that testimony the weight the juvenile court believed it deserved.
We note, however, that some of Zavala’s testimony supported the juvenile court’s disposition. Zavala acknowledged on cross-examination that there were no empirically validated instruments to accurately assess the risk of adolescents sexually reoffending. Zavala agreed that Julian had a history of interpersonal aggression, impulsivity, and a history of poor anger management. Zavala had concern over Julian’s very oppositional and defiant behavior. As the probation report and evidence from the ACTS program demonstrated, Julian did very little to address these issues when he had the opportunity to do so.
The juvenile court considered less restrictive alternatives to committing Julian to Juvenile Justice. We find the juvenile court did not abuse its discretion in committing Julian to Juvenile Justice.
DISPOSITION
The judgment is affirmed.