Opinion
Received for filing 11/30/09
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. 08CEJ601482-1, Martin Suits, Judge.
Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Rachelle A. Newcomb, Deputy Attorneys General, for Plaintiff and Respondent.
Before Levy, Acting P.J., Cornell, J., and Gomes, J.
Appellant, M.P., a minor, admitted an allegation that he committed a lewd act by means of force upon a child under the age of 14 (Pen. Code, § 288, subd. (b)(1)). The juvenile court ordered appellant committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF) and declared his maximum term of physical confinement to be 8 years.
The juvenile court did not refer to the DJF. Rather, the court indicated appellant was committed to the Department of Corrections and Rehabilitation, Division of Juvenile Justice. Our review of the relevant statutes indicates the following. In 2005, the Department of Corrections and the California Youth Authority (CYA) ceased to exist, and the CYA’s “powers, functions, duties, responsibilities, obligations, liabilities, and jurisdiction” were taken over by the newly created Department of Corrections and Rehabilitation (Gov. Code, § 12838.5); the constituent parts of this newly created department include an entity designated “Juvenile Justice,” (Ibid.) but no Division of Juvenile Justice; the entity called Juvenile Justice consists of various entities including the Division of Juvenile Facilities (Gov. Code, § 12838.3); effective July 1, 2005, any reference in any code to the CYA refers to the DJF (Welf. & Inst. Code, §1710, subd. (a), see also Welf. & Inst. Code, § 1000); and the DJF is referenced in statutes, such as Welfare and Institutions Code sections 731, 733, that formerly referred to the CYA. Accordingly, we will use the name DJF for the entity to which the court ordered appellant committed.
On appeal, appellant argues the evidence was insufficient to establish (1) that DJF commitment would be of probable benefit to him and (2) that there was no less restrictive alternative disposition available, and therefore DJF commitment violated appellant’s right to due process of law under the Fourteenth Amendment to the United States Constitution. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Facts
The report of the probation officer (RPO) indicates that, according to police reports, the following occurred. The victim, appellant’s four-year-old niece, told her mother that appellant touched her vagina with his penis and that he “hurt” her. She also stated, referring to her buttocks, “‘He hurts me here too.’” The victim told a police officer, in the course of an investigation of a report of sexual abuse made by the victim’s mother, that appellant, on more than four occasions, touched the victim’s vagina with his finger and rubbed his penis against her vagina. In a subsequent interview with another investigator, the victim stated that appellant inserted his penis into her vagina and anus and that this happened “‘a lot of times. More than five times.’” Appellant “hurt” the victim and she “‘told him to stop doing that.’” After police spoke with the victim, appellant, age 16, told police he had touched the victim’s vagina with his fingers and rubbed his penis against her vagina.
Additional Information Contained in the RPO
The instant case represents appellant’s first contact with the juvenile justice system; his parents indicate appellant has “no history of psychological treatment”; and according to his school records, “[his] grades are 1-A, 2-C’s and 4-F’s.”
Appellant was “screened” for “[p]lacement services” and was “not accepted for the program” because due to his age he would not be able to complete the “Sex Offender Group Home program” before his eighteenth birthday. Appellant is “not eligible” for either the Elkhorn Correctional Facility or Floyd Farrow Substance Abuse Unit programs “due to the nature of the offense.” The electronic monitoring program is similarly “inappropriate” due to the “magnitude” of the instant offense. “Due to the seriousness of the offense and the emotional and physical injuries” suffered by the victim, “it is [the] opinion [of the probation officer] that [appellant] needs... a higher level of treatment and supervision.”
According to a DJF “Intake Consultant,” appellant, if committed to DJF, “would receive sex offender treatment, relationship skills, education, victim awareness classes, impact of crime on victims, anger management, life skills, substance abuse counseling and mental health, if needed.”
Additional Background
Following the preparation of the RPO, defense counsel, in open court, stated: “We are asking that probation be ordered to screen [appellant] for placement, fully understanding that he’s already been rejected for placement because of his advanced age.” The court stated, “I will order that,” and the probation officer confirmed that “we are to screen [appellant] for placement again for a second time[.]”
Six days later, the probation officer filed with the court a memorandum in which she stated the following: the court had ordered that appellant be rescreened for placement not taking into consideration his age”; the officer had “rescreened [appellant’s] case with the “Probation Services Manager”; and “[appellant’s] case was rejected.” An accompanying form stated: “Reason for Rejection: Current offense involved serious force and violence in a sexual nature against a 3-year-old female victim. [Appellant’s] risk to reoffend is unknown and there could be significant risk to other children in the community based on the serious nature of the adjudicated offense. Foster [c]are placement sex offender group homes are not locked facilities [n]or do they guarantee that minors in their care can be constantly supervised 24-hours [per] day. A minor can walk away from a program on their own free will or they can AWOL from a school setting. Considering the safety and protection of the community, foster care placement does not appear to be the best rehabilitative option for [appellant] at this time.”
DISCUSSION
Under California law, commitment to the DJF requires a two-part showing. First, “it is required that there be evidence in the record demonstrating probable benefit to the minor....” (In re Teofilio A. (1989) 210 Cal.App.3d 571, 576; accord, In re Pedro M. (2000) 81 Cal.App.4th 550, 556.) Second, there must be “evidence supporting a determination that less restrictive alternatives are ineffective or inappropriate.” (Ibid.) Appellant argues that compliance with these principles is constitutionally mandated because juvenile court proceedings can result in the deprivation of a minor’s liberty. And as indicated above, he contends his due process rights were violated here because, he asserts, the evidence was insufficient to establish that DJF commitment would be of probable benefit to him or that a disposition less restrictive than DJF commitment would be ineffective or inappropriate.
The People first counter that appellant’s due process claim is forfeited because he did not assert it below. We disagree. The failure to raise constitutional claims in the lower court does not result in forfeiture of such claims on appeal where, as here, the constitutional claims “involve[] application of the same facts or legal standards [the accused] asked the trial court to apply, accompanied by a new argument that the... error... had the additional legal consequence of violating the federal Constitution.” (People v. Friend (2009) 47 Cal.4th 1, 29, fn. 13.) Accordingly, we turn now to the merits of appellant’s claim.
We assume without deciding that, as appellant argues, commitment to the DJF in violation of California law also violates a minor’s due process rights under the federal constitution.
An appellate court will not lightly substitute its judgment for that of the juvenile court but rather must indulge all reasonable inferences in favor of the decision and affirm the decision if it is supported by substantial evidence. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396; In re Asean D. (1993) 14 Cal.App.4th 467, 473.) “‘In determining whether there was substantial evidence to support the commitment, we must examine the record presented at the disposition hearing in light of the purposes of the Juvenile Court Law. ([Welf. & Inst. Code,] § 200 et seq. ….)’” (In re Lorenza M. (1989) 212 Cal.App.3d 49, 53.) “In 1984, the Legislature amended the statement of purpose found in section 202 of the Welfare and Institutions Code. It now recognizes punishment as a rehabilitative tool and emphasizes the protection and safety of the public.” (Id. at p. 57, fn. omitted.) [Citation.] This recognition marked a “change in emphasis,” the “significance [of which] is that when we assess the record in light of the purposes of the Juvenile Court Law [citation] we evaluate the exercise of discretion with punishment and public safety and protection in mind.” (Id. at p. 58; accord, In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684 [“[a] fundamental premise of delinquency adjudication is that the court must focus on the dual concerns of the best interests of the minor and public protection”]; In re Asean D., supra, 14 Cal.App.4th at p. 473 [“the 1984 amendments to the juvenile court law reflected an increased emphasis on punishment as a tool of rehabilitation, and a concern for the safety of the public”].) And while the juvenile court law contemplates a progressively restrictive and punitive series of dispositions, there is no absolute rule that the court may not impose a particular commitment until less restrictive placements have actually been attempted. (In re Asean D., supra, 14 Cal.App.4th at p. 473 ;In re Teofilio A., supra, 210 Cal.App.3d at p. 577.)
Welfare and Institutions Code section 202 provides in relevant part: “Minors under the jurisdiction of the juvenile court as a consequence of delinquent conduct shall, in conformity with the interest of public safety and protection, receive care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances. This guidance may include punishment that is consistent with the rehabilitative objectives of this chapter.” (Welf. & Inst. Code, § 202, subd. (b), italics added.)
Appellant argues the evidence was insufficient to support a finding that DJF commitment would be of probable benefit to him because, he asserts, the RPO contained “no information” regarding his “mental health status” and his educational needs and “completely lacked any exploration of a ‘wide range of alternative facilities’, or indeed, any alternative facilities.” There is no merit to this contention. Evidence, or the lack of evidence, of alternative dispositions has no bearing on the question of whether commitment to the DJF can benefit appellant; appellant’s claim that the record contains no information on his educational needs ignores the information in the RPO regarding his poor grades; and the lack of information on appellant’s mental health does not negate the fact that the record contains other information indicating that DJF commitment would benefit appellant.
The instant offense is a strong indication appellant is in need of sex offender treatment and services to help him appreciate the suffering of crime victims, and his recent grades are a similarly strong indication he is in need of education. The juvenile court reasonably could credit the uncontradicted evidence in the RPO that appellant would receive various services in the DJF, including sex offender treatment, education, and programs for increasing awareness of the impact of criminal misconduct, and reasonably conclude such programs would address those needs. Moreover, the record supports the conclusion appellant committed a series of forcible acts of sexual molestation of a four-year old child, and, as demonstrated above, the juvenile court law specifically recognizes punishment as a “rehabilitative tool” (In re Lorenza M., supra, 212 Cal.App.3d at p. 53) that can aid in a minor’s rehabilitation by holding him or her accountable for such serious criminal misconduct. (In re Samuel B. (1986) 184 Cal.App.3d 1100, 1104 [in determining disposition of juvenile offender, “gravity of the offense is always a consideration with other factors”], overruled on other grounds in People v. Hernandez (1988) 46 Cal.3d 194, 206, footnote 14; Welf. & Inst. Code, § 725.5 [factors to consider in determining appropriate disposition include “the circumstances and gravity of the offense committed by the minor”].) The foregoing establishes that substantial evidence supports the conclusion that commitment to the DJF would be of probable benefit to appellant.
Appellant also challenges the sufficiency of the evidence of probable benefit of DJF commitment on the ground that “[DJF] facilities and programs are inadequate.” He bases this contention on certain reports and other documents critical of DJF, none of which was before the juvenile court. These documents are not part of the appellate record. Therefore, we cannot consider them. (Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632.) [“As a general rule, documents not before the trial court cannot be included as part of the record on appeal and thus must be disregarded as beyond the scope of appellate review”].)
Finally, appellant contends the evidence was insufficient to establish that a disposition less restrictive than DJF commitment would be ineffective or inappropriate. This contention, too, is without merit. The juvenile court reasonably could have concluded that any disposition less restrictive than DJF commitment would not have been adequate to hold appellant accountable for his acts of serious criminal misconduct. Moreover, although as appellant points out, the RPO indicates it is “unknown” whether appellant will reoffend or is likely to abscond from a facility less secure than the DJF, this factor, contrary to appellant’s suggestion, does not preclude a finding that any disposition less restrictive than DJF would have been inappropriate. Even in the absence of affirmative evidence that appellant is likely to reoffend or abscond, the court could reasonably conclude, based on the evidence of multiple acts of serious criminal misconduct alone, that appellant poses a significant threat to young children, and that therefore a placement less restrictive than the DJF would not be adequate to provide for the safety and protection of the public. Thus, substantial evidence also supports the conclusion that any placement less restrictive than the DJF would be ineffective or inappropriate.
DISPOSITION
The judgment is affirmed.