Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J210803, A. Rex Victor, Judge.
Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, and Gary W. Schons, Assistant Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
INTRODUCTION
Minor appellant R.B. (R.B. or the minor) makes two arguments here: (1) that the juvenile court abused its discretion by ordering him committed to the Division of Juvenile Justice (DJJ); and (2) that the court failed to exercise its discretion under Welfare and Institutions Code section 731, subdivision (c) (731(c)) in selecting the term of his confinement. The People concede the 731(c) claim. We are persuaded by neither of R.B.’s arguments and will affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
R.B., now 15 years old, has been the subject of two section 602 petitions in the last two years: one filed in San Bernardino County on October 13, 2006, and one filed in Riverside County on October 16, 2007.
The 2006 petition:
The 2006 petition charged R.B. with one count of false imprisonment. (Pen Code, § 236 (count 1, a misdemeanor).) The allegation arose out of an incident that occurred on October 10 at the special education school program he attended in Hesperia after he tried, unsuccessfully, to persuade the female teacher’s aide who had escorted him to the restroom to view what he thought was gang graffiti inside one of the stalls. When the escort refused to enter the restroom with him, R.B. grabbed her around the waist and dragged her, struggling, inside and toward the empty stall. At the detention hearing on October 16, the juvenile court referred the minor for psychiatric and medication evaluations and requested a section 241.1 report.
The psychological evaluation, the first of four R.B. was to undergo, was performed by Dr. Edward J. Ryan on October 21, 2006. Dr. Ryan’s review of the minor’s history revealed that early in life he had been severely abused by his mother to the point of requiring treatment with a body cast. He was removed from her custody when he was two years old and had thereafter been reared mostly in the foster care system. He had apparently been on psychotropic medications in the past, but his grandmother had discontinued them after he came to live in her home. Dr. Ryan found R.B. to be mildly mentally retarded, with a mental age of eight, and not competent to stand trial. The psychologist recommended that he be referred to Inland Regional Center (IRC) “for consideration of services through that agency,” and to a psychiatrist to assess his need for medication.
The section 241.1 report, filed October 30, 2006, noted that R.B. had initially been a “Custody and Maintenance transfer in” from Los Angeles County in October 2005 and that the case had been dismissed in November 2005 after he was moved to his father’s home. A recent child abuse referral investigation had been closed as “unfounded” after the social worker interviewed the minor and his grandmother. Since he was not currently receiving services as a dependent, the reporting committee concluded that he was “suitable to be served as a 602 should the allegations be found true.”
Meanwhile, on October 26, 2006, his roommate at juvenile hall reported that R.B. had pulled down his pajama pants while he was sleeping. The roommate woke up when he felt R.B.’s hands on his buttocks. The roommate believed R.B. was attempting to sodomize him. A juvenile hall correctional officer had noticed the minor lying next to the roommate with his face near the victim’s buttocks. On November 13, the section 602 petition of October 13 was amended to include an allegation of attempted sodomy of a person under 18. (Pen. Code, §§ 664, 286, subd. (b)(1) (count 2, a felony).)
At a pretrial hearing on October 30, 2006, the court found that R.B. was not a dependant. The court also suspended the criminal proceedings and ordered a second psychological evaluation by a different psychologist. Over the objection of the district attorney, the court further ordered him placed under house arrest and released to the custody of his grandmother. When R.B. refused to go home with her, the court continued his detention at juvenile hall.
R.B.’s second psychological evaluation was performed by Dr. Stuart Courtney on November 12, 2006. The minor told Dr. Courtney that he had been removed from his mother’s care when he was two years old because, “‘She threw me and hit my head and I couldn’t move. I was in a body cast.’” He now lived with his father, his stepmother, his grandmother, and six siblings. His grandmother, he said, hit him with things like a broomstick and a baseball bat. For discipline, his father whipped him with a belt. If sent to live with his grandmother, the minor said he would kill her. Dr. Courtney found R.B. to be impulsive and immature and lacking in care and concern for others. Like Dr. Ryan, Dr. Courtney concluded that R.B. was mildly mentally retarded and not competent to stand trial and recommended that he be assessed for possible treatment with psychotropic medication.
On November 30, 2006, the court continued the suspension of criminal proceedings. It also referred R.B. to IRC for a competency evaluation and a determination of whether he was eligible for their services. A competency hearing in mental health court (§ 6551) was set for January 16, 2007. The mental health court renewed the order for another IRC evaluation and twice continued the competency hearing.
The IRC psychological evaluation, R.B.’s third in less than five months, was performed by Dr. Edward B. Pflaumer on March 1, 2007. Dr. Pflaumer concluded that the minor’s intellectual functioning was “borderline,” but that he was not mentally retarded and was therefore ineligible for IRC services. Dr. Pflaumer also concluded that he was competent to stand trial. On March 20, relying on Dr. Pflaumer’s report, the juvenile court reinstated the criminal proceedings. A detention hearing was set for March 22.
On April 24, 2007, the Welfare and Institutions Code section 602 petition was again amended to add, as counts 3 and 4, allegations of battery on school property (Pen. Code, § 243.2, subd. (a)(1)), and sexual battery (Pen. Code, § 243.4, subd. (e)(1)). R.B. admitted counts 3 and 4, the two misdemeanors, and the court dismissed counts 1 and 2, the false imprisonment and attempted sodomy allegations. In a detailed report filed on May 8, the probation department documented R.B.’s continued aggressive behavior at juvenile hall. The incidents were “too numerous” to mention, but included spitting, threatening, and cursing at staff as well as hiding contraband in his cell and disturbing fellow inmates at night. Because of his continued threats to kill his grandmother, he could not be returned home. The report recommended that he be placed in “a safe setting, which is the least restrictive or most family-like” and best suited to meet his special needs. On June 5, R.B. was placed with Highlander Children’s Services (Highlander), a sex offender placement home in Riverside.
The 2007 petition:
On October 14, 2007, four months after his placement at Highlander, R.B. assaulted a female employee who was supervising him as he took out the trash. He apparently attempted to divert the woman’s attention by pointing to some coyote holes in the nearby hills, then attacked her from behind as she walked back to the facility. He placed the victim in a chokehold and when she broke free punched her in the face with a closed fist, causing her to fall to the ground. The minor told responding police officers something had “‘snapped’” inside him and he wanted to have sex with her. The 57-year-old woman was reportedly hospitalized with bleeding in her brain.
On October 16, 2007, another Welfare and Institutions Code section 602 petition, this one filed by the Riverside County District Attorney, alleged that R.B. had committed assault with intent to commit rape and battery with serious bodily injury. (Pen. Code, §§ 220, 243, subd. (d), ¶¶ 1, 2, felonies.) Two days later R.B. admitted the assault allegation and the court dismissed the battery. Because his parents resided in Hesperia, the matter was transferred to San Bernardino County for disposition.
In a report filed November 13, 2007, San Bernardino County Probation Officer Rafael Cruz (Cruz) recommended that R.B. be placed at a DJJ facility. The minor told Cruz that he had been expelled from school at least once and had been suspended about three times for fighting and school records confirmed the suspensions. R.B. also told Cruz, “‘There are times I just lose control and don’t know why I do things. I just have an impulse to have sex.’”
The report actually recommended placement at “CYA,” the California Youth Authority. Effective July 1, 2005, however, the Youth Authority was renamed the Division of Juvenile Justice of the Department of Corrections and Rehabilitation (DJJ), and we will use this designation throughout this opinion. (Gov. Code, §§ 12838, subd. (a), 12838.5.)
According to probation records, R.B. had been arrested in February 2006 and charged with committing battery on a school bus (Pen. Code, § 243.2), but had been released following an out-of-court settlement that required him to complete anger management and other remedial classes. He had not completed these requirements before being arrested for the current offenses. Juvenile hall officials reported that R.B. was behaving poorly on the unit. He had been disciplined for yelling at staff and other residents; for threatening them, cursing at them, and making lewd remarks to them; and for failing to follow directions and being argumentive. As he had told Dr. Courtney, he intended to kill his grandmother the first chance he got.
Cruz’s report concluded that R.B. presented a serious predatory threat to the community in that he had demonstrated sophisticated prior planning and a pattern of luring victims before attacking them; he attacked when the victims were especially vulnerable, asleep or had their backs to him; he showed little or no remorse; and he tended to excuse himself by claiming he didn’t remember his actions. He needed placement in a secured facility where he would be required to participate in a sex offender program consisting in part of weekly group therapy and victim impact classes. In Cruz’s opinion, DJJ was the preferred placement.
Following the transfer-in hearing on November 13, 2007, at defense counsel’s request, the court ordered a fourth psychological evaluation. Dr. Ryan conducted the evaluation on November 28 and the report was filed on December 7. This time, Dr. Ryan reported that R.B.’s intelligence was higher than previous testing—with a different instrument—had indicated. The psychologist now found the minor to be impulsive and egocentric and suggested that “[t]he indications are that he will resort to aggression relatively easily.” The documented sexual assaults occurring in restricted settings indicated, the psychologist said, that he would present an even more serious threat of danger to the community in situations without constraints. Dr. Ryan concluded that R.B. needed treatment for “sexual acting out behavior[,] substance abuse[,] and family dynamics” in a locked setting such as “RYEF” or “CYA.”
Regional Youth Educational Facility.
Disposition hearing:
At the beginning of an extended contested dispositional hearing on March 20, 2008, the court received the probation report into evidence and took judicial notice of R.B.’s complete file. Under close questioning by defense counsel and the district attorney, Cruz testified at length about his report and conclusions.
Cruz explained the primary reason for his recommendation that R.B. be placed at a DJJ facility: his battery, assault, and sexual crimes were escalating in seriousness. The minor had committed his most recent assault while placed at Highlander, the one specialized sex offender placement that had agreed to take him, and his attack there had been on an adult female staff member. Cruz had considered different placement possibilities and had spoken to directors of other sex offender programs about the minor, but all had refused to accept him because of the safety risk he posed. In Cruz’s opinion, for both R.B.’s own needs and for public safety, DJJ was the best alternative. Cruz pointed out that DJJ had a better sex offender treatment program than some of the other placements, in that it included both individual and group counseling. In addition, the facility was locked and the staff was more equipped to deal with anger and behavior problems than the staff at juvenile hall.
Cruz agreed that R.B. had once been on psychotropic medication and that he not been screened for medication as recommended in the psychologist’s reports. At this point, the court pointed out that none of the psychologists included “a diagnosis that would support an order of psychotropic medication. We don’t medicate people for control, we can only medicate them to help them deal with their problems.”
In closing, defense counsel argued vigorously that her client, with his borderline mental abilities, should not be sent to DJJ where he would be at risk at the hands of more sophisticated delinquents. Counsel reiterated that two psychologists had found R.B. immature and impulsive, and had recommended he be screened for psychotropic medication. Before he was sent to DJJ, counsel argued, the minor’s mental health issues and need for medication should be addressed.
The court decided to follow the probation department’s recommendation for commitment to DJJ and explained its reasoning—its consideration of the minor’s character and circumstances—in detail. The department had made reasonable efforts to screen for available programs, which might take a high-risk sex offender like R.B. But it was in one of those very facilities that his latest, most serious, attack had occurred. The crime demonstrated R.B.’s “rather crafty and not unsophisticated” method of luring his victim to a place where she was alone and could be attacked. His earlier attack on the female staff member he tried to lure into a restroom stall demonstrated this, as did his attempted sexual action on the body of his sleeping roommate.
The court was aware that R.B. had been “dealt a bad hand and off the bottom of the deck” and expressed regret that there was no “perfect solution” or “perfect place” for children like him who were damaged when they entered the dependency system and who might have suffered more damage within it. As R.B. was getting older, however, his danger to females was becoming higher. His “dangerous propensities” were “flagrant” and could not be denied. He needed “the sophisticated care and support and training and education all dealing within his capabilities in a setting of people that can control his behavior and can provide the services needed . . . [DJJ] is just the best choice.” DJJ had “a viable, qualified program for sexual offenders, and particularly dangerous sexual offenders.” Placement there was both appropriate and suitable to achieve the mutual goals of providing him with rehabilitation and treatment while protecting society. While the probation department had reasonably sought and offered rehabilitative treatment and services for the minor, those services and placements were no longer adequate to appropriately treat him; he needed the more restrictive environment and programs available in DJJ.
The court noted that R.B. was not currently taking any psychotropic medication but authorized DJJ to evaluate him for the need for medication if it determined such an evaluation necessary. The court also ordered the probation department to provide DJJ with information about the minor’s special educational needs and current individualized educational program. The court further noted that neither his current offense nor his prior offenses were section 707, subdivision (b), offenses. “The available time for placement,” the court continued, “is six years, six months.” The court did not specifically comment on the length of R.B.’s term or its discretion to impose a lower term, and neither counsel requested clarification of the term chosen.
This appeal followed.
In a request filed August 18, 2008, R.B. asked us to take judicial notice of three reports: a January 2007 statistical summery of statistics about DJJ; a 2001 private report assessing DJJ’s mental health system prepared for former California Governor Gray Davis; and a 1991 outline of the six-month intensive treatment program, with a four- to six-month aftercare program, available at RYEF. On August 21, the Attorney General filed a letter opposing the request. On August 27, we reserved our ruling for consideration with this appeal and now deny the request. None of the material was introduced below and we find none relevant to our analysis here.
R.B. argues here, as he did below, that because of his mental deficiencies and possible need for medication, a DJJ placement was inappropriate and constituted an abuse of discretion by the juvenile court. He also asserts that because the court failed to acknowledge its discretion to set his term of confinement at a level lower than that applicable to an adult convicted of the same crime, the matter must be remanded for the juvenile court to exercise this discretion. We disagree.
Standard of Review and DJJ Placements:
“We review a [DJJ] commitment decision only for abuse of discretion, and indulge all reasonable inferences to support the decision of the juvenile court.” (In re Asean D. (1993) 14 Cal.App.4th 467, 473; see also In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) There is no abuse of discretion when the record contains substantial evidence supporting the findings and the decision. (In re Kevin F. (1989) 213 Cal.App.3d 178, 186; In re Tyrone O. (1989) 209 Cal.App.3d 145, 151.)
In determining placement in a juvenile delinquency case, the court focuses on the dual concerns of the best interests of the minor and the need to protect the public. In arriving at a disposition, the court considers the probation officer’s report and any other relevant and material evidence that may be offered. (§ 202, subd. (d); In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684.) The court may consider a commitment to DJJ without first having tried less restrictive placements. (In re Asean D., supra, 14 Cal.App.4th at p. 473.) “Finally, 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. [Citation.]” (Ibid.) “Nonetheless, there must be evidence in the record demonstrating both a probable benefit to the minor by a [DJJ] commitment and the inappropriateness or ineffectiveness of less restrictive alternatives. [Citations.]” (In re Angela M., supra, 111 Cal.App.4th at p. 1396.)
Analysis:
In this case, the record before the juvenile court contained abundant evidence supporting the placement decision. The court did not abuse its discretion in concluding that DJJ was the best available alternative for R.B. and for society.
As the court found, R.B.’s crimes had been escalating in seriousness for some time and less restrictive methods of addressing his problems had not been effective. By his own admission, he had been suspended from school several times for fighting and had been expelled at least once. Clearly these disciplinary measures had no effect on his behavior because he was arrested in February 2006 and charged with having committed battery on a school bus on January 31. He was released at that time with only a mild penalty—the requirement that he complete anger management and other remedial classes—but these measures too were ineffective. He had not yet completed the classes when, just eight months later, he assaulted the person who was escorting him to the bathroom. Within little more than two weeks of that offense, and only nine days after his first psychological evaluation, he committed the sexual battery on his sleeping roommate at juvenile hall.
At Highlander, a special facility for juvenile sex offenders where he was placed in June 2007, R.B. did no better. There, while charges in the first section 602 petition were still pending, he committed an even more serious crime. He lured a female staff member outside then attacked and seriously injured her because, he said, something “snapped” inside him and he had an uncontrollable impulse to have sex with her. During his most recent sojourn at juvenile hall he had to be disciplined for yelling at staff and other residents and for threatening, cursing at, and making lewd remarks to them. He showed no mercy or remorse for his victims and told Cruz he would kill his grandmother the first chance he got.
In view of the escalating nature of R.B.’s crimes and his obvious need for both restraint and treatment, and because less restrictive measures had proven ineffective in modifying his behavior patterns, the court did not abuse its discretion in committing him to DJJ.
731(c) and the term of confinement:
As R.B. correctly asserts in his opening brief, “Under [731(c)] when a judge places a minor with the DJJ, the judge must consider the facts and circumstances of the case and use his or her discretion in setting the maximum term of confinement and should not simply summarily impose the maximum term of confinement for an adult.” R.B. further insists that “[t]he court summarily imposed the maximum adult term without any discussion of its discretion or the particular facts and circumstances of [R.B.’s] case.” The Attorney General agrees that the matter should be remanded because “the record indicates that the juvenile court in the instant case imposed the maximum sentence that would be served by an adult without apparently exercising its discretion.” We read the record differently.
In 2003 the California Legislature amended section 731, subdivision (b), to provide that a minor committed to DJJ not only may not be held for a period in excess of the maximum period of adult confinement for the same crime, but that in setting the term of confinement the court must consider the particular facts and circumstances of the matter, which brought or continued the minor under its jurisdiction. In 2007 the Legislature amended the statute again, modifying subdivisions (a) and (b) and adding subdivision (c), now containing the language formerly found in subdivision (b). (§ 731, as amended by Stats. 2007, ch. 175, § 19.) “‘Failure to exercise a discretion conferred and compelled by law constitutes a denial of a fair hearing . . . and thus requires reversal.’” (People v. Downey (2000) 82 Cal.App.4th 899, 912.) However, on a silent record, this court will presume that a trial court was aware of its discretion and followed applicable law in performing its official duty. (Evid. Code, § 664; People v. Burnett (2004) 116 Cal.App.4th 257, 261; People v. Mosley (1997) 53 Cal.App.4th 489, 496.) “This presumption is a logical extension of the rule ‘concerning the presumption of regularity of judicial exercises of discretion apply[ing] to sentencing issues.’” (Burnett, supra, at p. 261.) Neither the 2003 nor the 2007 amendment contain any provision specifying that a court must explicitly state on the record that it is exercising the required discretion.
Appellate cases decided within the first two years after the 2003 amendment, and relied upon here by R.B., held that at disposition the record must reflect that a juvenile court had exercised its discretion to set a term other than the statutory maximum based on the facts and circumstances of the matter before it. (In re Jacob J. (2005) 130 Cal.App.4th 429, 437-438; In re Carlos E. (2005) 127 Cal.App.4th 1529, 1543; In re Sean W. (2005) 127 Cal.App.4th 1177, 1182.) In each of these cases, the records were apparently silent on the issue of the court’s awareness of its discretion to select terms less than the maximum. (In re Jacob J., supra, at p. 438; In re Carlos E., supra, at p. 1533; In re Sean W., supra, at p. 1182.)
R.B. also seeks support in a recent case from this court, In re G.C. (2007) 157 Cal.App.4th 405. In that case, we held that in setting a minor’s maximum time of confinement at DJJ, a juvenile court is required to exercise its discretion by considering the facts and circumstances of the current offense—as well as the prior offenses—that brought and continued the minor under its jurisdiction. (Id. at pp. 409-411.) That point is not at issue here.
The In re Jacob J. court also quoted a part of the legislative history of the 2003 amendment wherein the committee bill analysis explained that, “‘This new provision would provide for court consideration of factors about the offense and the offender’s history which would be comparable to those [for the] sentencing of adults, and have those considerations reflected in the [DJJ] confinement term ordered by the court.’” (In re Jacob J., supra, 130 Cal.App.4th at pp. 436-437.) The record here demonstrates the court doing exactly this.
Firstly, at R.B.’s own request, the court took judicial notice of the whole of his file. That file contained reports of past and recent interviews and psychological evaluations, which detailed his history. In numerous reports and evaluations, he had been found to be impulsive, immature and self-centered; he lacked remorse for his actions or sympathy for his victims; he continued to threaten and make lewd remarks to people around him; he repeatedly stated his intention to kill his grandmother if he ever got the chance.
Secondly, in the course of its explanation for choosing a DJJ commitment rather than another placement, the court acknowledged R.B.’s sad history as a victim of abuse and the damage the abuse had caused. He had, the court said, “been dealt a bad hand and off the bottom of the deck.” His intelligence was borderline. Despite this circumstance, however, the minor was “rather crafty and not unsophisticated.” He selected vulnerable victims (his sleeping roommate) or maneuvered them into positions of vulnerability (the two women he assaulted). His dangerous propensities were flagrant; and while he needed treatment, the public also needed protection.
Finally, after this extended discussion of the particulars of the offense and the offender, the court indicated its consciousness of R.B.’s youth by noting that neither the offense that qualified him for commitment to DJJ nor his prior offenses were section 707, subdivision (b), offenses. The court then announced that it was selecting the term that reflected “[t]he available time for placement.” The court’s use of the words “available” and “placement” indicate that it was actively looking for the longest term possible for a juvenile, and that it intended to impose that term both to protect the public and to optimize treatment possibilities for a minor offender in R.B.’s circumstances.
Contrary to the position taken by the parties, we conclude that the court not only considered the particular facts and circumstances of R.B.’s case in selecting DJJ, but in determining the length of his confinement there. We will not presume error in the face of a record so fully demonstrating a juvenile court fulfilling its official duty.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST, J., GAUT, J.