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In re R.H.

Court of Appeal of California
Sep 19, 2008
No. F054298 (Cal. Ct. App. Sep. 19, 2008)

Opinion

F054298

9-19-2008

In re R.H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. R.H., Defendant and Appellant.

Harry Zimmerman, 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, David A. Rhodes and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.

Not to be Published


OPINION

THE COURT

Before Vartabedian, Acting P.J., Cornell, J. and Kane, J.

Defendant R.H. contends the juvenile court abused its discretion by determining he was unsuitable for the deferred entry of judgment (DEJ) program. We will affirm.

PROCEDURAL AND FACTUAL SUMMARY

On July 31, 2007, a petition was filed pursuant to Welfare and Institutions Code section 602, alleging that 14-year-old defendant had committed four felony counts of lewd and lascivious acts on his five-year-old adopted sister (the victim). Defendants older brothers, A. and J., were separately charged with committing similar acts on the victim.

All statutory references are to the Welfare and Institutions Code unless otherwise noted.

Defendant admitted one count of oral copulation on the condition that he be found eligible and suitable for the DEJ program. In the event the court denied his participation in the DEJ program, he would be allowed to withdraw his admission.

According to the probation officers report, on various occasions in May through July 2007, defendant orally copulated the victim, had intercourse with her, and was orally copulated by her. At least one incident occurred while a parent was at home. A. and J. also engaged in sexual offenses with the victim and the three brothers acted as lookouts for each other.

The probation officer recommended that defendant not be found suitable for DEJ because of the seriousness of the crime and the risk to the victim and society. The officer believed defendant was attempting to place blame on the victim, claiming she had asked to see his penis and to have sexual contact with him. The officer recommended that defendant be placed on probation in a group home with intensive sexual offender counseling. The officer believed placing defendant back in the family home would put the victim and others in the community at risk.

At the contested dispositional hearing, the court heard evidence regarding the suitability of defendant and his two brothers for the DEJ program.

Carol Gray, the victims therapist, testified that the victim had not disclosed any molestation and had mentioned her brothers only in the context of missing them. The victim had not expressed any fear or trauma regarding defendants possible return to the family home. Gray had conducted five sessions with the victim and had not yet inquired directly about what had happened. From what Gray knew of the incidents, she believed defendant was amenable to outpatient therapy in conjunction with a strong security plan at home. She based her opinion on the risk assessment performed by defendants therapist, Tim Zavala.

Gray believed the situation was difficult and sad for the victim. She felt some embarrassment, guilt, and shame, all of which were typical. She now knew that sexual activity and acting out with her brothers was not okay and she needed to be responsible for herself and report anything done by anyone else. Gray believed the victim might previously have thought it was fun and games. Gray did not know whether the victim had experienced prior instances of abuse, but she was a sexualized child who had been exposed to sex somewhere.

Gray believed the victim needed continuing treatment and counseling. Gray hoped to eventually introduce other family members into the victims sessions. If the brothers were incarcerated or unavailable, that would not be feasible. Gray felt that immediate reunification with some of her brothers would be good for the victim, although Gray believed Zavala could better speak to the brothers readiness. Gray had never personally counseled any of the brothers.

Grays safety plan was meant to ensure that the victim was never left alone and that she would never have the opportunity to be with her brothers unsupervised. She would be supervised during the day and she would be protected by a camera and alarm at night. The alarm would be placed on the brothers bedroom door and they would have urinals in their bedroom at night. A camera would be directed at their bedroom door. The parents would be responsible for monitoring the camera whenever the victim was not in their presence.

Even though the victim had not told Gray anything about what had happened to her, Gray thought it was likely that the victim would report any future sexual activity. Gray believed this because she and the victim had reviewed the safety plan repeatedly and would continue to do so. Gray admitted there was a possibility that the victim would instigate sexual conduct again, although Gray believed it was unlikely because of the work she was doing with the victim.

Gray believed the brothers required treatment and counseling as part of their rehabilitation. She believed, based on statements the brothers had made to Zavala in the risk assessment, that they were amenable to outpatient treatment, took responsibility for what they did, were willing to learn from their mistakes, and could be placed back in the family home successfully with a safety plan in place.

Gray admitted she could not know whether there were any negative implications if the brothers received counseling at a group home while the victim received counseling at home. Gray thought the victim might feel more sadness and guilt, and miss her brothers. Gray did not feel there was a risk of harm if the brothers were returned home because the parents now knew what had happened and were aware they needed to be "hypervigilant." Gray believed the safety plan was 99 percent foolproof.

Zavala had been treating defendant since April 2003. Zavala interviewed defendant about the current incidents and administered a risk assessment test to determine the level of risk that defendant would commit another sexual offense. Zavala concluded defendant was at low risk to reoffend. Zavala was aware that defendant had told the probation officer he might reoffend, but Zavala took the statement as an indication that defendant was not denying the event, was taking responsibility for it, and was realistically recognizing that he could reoffend if he did not have a plan in place.

Zavala believed defendant was naïve about sexual things and sexual experience, despite his statement that he had sexual intercourse with the victim. Zavala thought defendant did not understand the meaning of "penetration," and Zavala believed it had not actually occurred. He agreed, however, that defendant admitted engaging in oral copulation. Zavala nevertheless thought defendant did not pose a continuing risk to the victim or any other child. Zavala had been to defendants family home and had seen the alarm hanging on the bedroom door. It made a piercing noise when the door was jiggled or opened. The cameras had not yet been installed. Zavala believed the mother understood the risks and what was required of her.

In Zavalas opinion, placement in a group home was not in the best interest of defendant or A. Such a placement would prevent defendant from going to the family home for a specified period of time, after which he would return home. Zavala thought that defendant and J. had expressed willingness to go to a group home.

Zavala believed there was little to no risk in returning the brothers to the family home. He explained: "In this particular case with this family and these parents, I can with almost no shadow of a doubt say that no inappropriate sexual contact is going to occur between this little girl and her three older brothers."

Zavala admitted that the success of his plan to return the brothers to the family home depended on a number of things working simultaneously, including the parents implementation of the plan — for example, reviewing the video and supervising the door alarm. Zavala acknowledged that, as a sexualized child, the victim was at risk of initiating sexual contact with the brothers again.

In a group home specifically designed for sexual offenders, the brothers could receive therapy toward accepting full responsibility for their acts, learning about sexual abuse dynamics, and developing a plan to reduce future risk. The group home was not intended to be a permanent placement; the brothers could be returned to the family home at the conclusion of therapy.

Studies had shown, however, that adolescent sexual offenders faired better in outpatient treatment. Adolescent sexual offenders who were caught had a low risk of reoffending, particularly if they received outpatient therapy.

Zavala believed that J. was at low to moderate risk of reoffending. Zavala thought J. was better suited for placement in a group home due to the circumstances of the case. If the parents decided to place any of the brothers in a group home, Zavala was willing to offer his services to facilitate the placement.

At the end of this testimony, defendants counsel requested that the court place defendant in the DEJ program, which could last as long as three years. Counsel acknowledged that defendants file reported that defendant may have been a victim of sexual molestation himself.

A.s counsel also argued that A. should be placed in the family home.

J.s counsel acknowledged there had been no recommendation to return J. to the family home and he might benefit from the placement in a group home.

The prosecutor argued that protection of the victim was paramount. The victim would be at risk if the brothers were returned to the family home, whereas the victim would be at no risk if the brothers were initially placed in a group home. The only negative consequence to the victim was that she might be saddened by her brothers absence from the family home, a consequence outweighed by the benefit of eliminating the risk. The presence of the brothers in the family home could lead to greater emotional trauma and additional acts of sexual conduct. The prosecutor argued that, according to Zavalas testimony, all of Zavalas goals for the brothers could be achieved in a group home; Zavala had failed to show how placement in a group home would be less beneficial. If the brothers could receive the same benefits at a group home, they should be placed there. All of the brothers had shifted some blame onto the victim and needed to undergo uninterrupted therapy. Finally, the safety plan in the family home, which required constant vigilance by the parents, was an impractical long-term solution that did not ensure the victims safety. The prosecutor argued that the DEJ program was inappropriate because of the gravity of the harm and the level of risk to the brothers and the victim.

The court made the following findings as to the victim: She was young. She was the victim of serious sexual abuse by the brothers and possibly had endured prior abuse. She was a sexualized child and may have initiated the sexual contact with the brothers. She had not disclosed the abuse readily to the therapist. She had disclosed some information to her mother, but she was not willing to readily discuss the topic. She was still in therapy and continued to require treatment. She was at risk of not resisting future advances and of not disclosing future contact.

The court made the following findings as to A.: The sexual abuse was serious. He engaged in oral copulation with the victim.

The court made the following findings as to J.: The sexual abuse was serious. He engaged in sexual intercourse and oral copulation with the victim.

The court made the following findings as to defendant: The sexual abuse was serious. He acknowledged engaging in sexual intercourse with the victim on more than one occasion.

The court declined to place the brothers in the DEJ program. The court believed the brothers were unstable and needed ongoing counseling, rehabilitation and treatment. The court considered the fact that the brothers acted in concert to perpetrate the molestations. The incidents were planned, with the brothers acting as lookouts for each other. The court was gravely concerned that some of the abuse occurred while the parents were home.

The court believed the in-home safety plan was extensive, requiring 24-hour parental monitoring of three teenagers and one child. The court doubted that the plan would prevent further abuse and was concerned that instead it might cause more turmoil in the family home.

The court concluded the best treatment for the brothers was "to receive high level specialized counseling through a sex offender group home in order to successfully rehabilitate in a sex offender treatment setting." None of the brothers chose to withdraw his plea.

DISCUSSION

Defendant contends the court failed to follow the proper criteria, relied on erroneous facts, disregarded the experts opinions, and failed to give defendant individual consideration when it denied defendant participation in the DEJ program.

The DEJ program in juvenile wardship proceedings is governed by section 790 et seq., and California Rules of Court, rule 5.800. Modeled on the adult drug diversion program (Pen. Code, § 1000 et seq.), it was enacted as part of Proposition 21 in 2000. (In re Sergio R. (2003) 106 Cal.App.4th 597, 602, fn. 4; id. at p. 606.) When a minor faces section 602 proceedings for a felony offense, the prosecutor must review the file to determine whether the minor meets the qualification set out in section 790, subd. (a). (§ 790, subd. (b).) If the minor is found eligible, the prosecutor must file a declaration stating the grounds for his determination and provide written notification to the minor explaining the procedure. (§§ 790, subd. (b) & 791, subd. (a).) The court must issue a citation to the custodial parent or other caretaker of the minor, by personal service at least 24 hours in advance of the hearing, with a notification that the caretakers participation in a counseling or education program might be required. (§ 792.)

All references to rules are to the California Rules of Court.

The determination of whether to grant DEJ requires consideration of both eligibility and suitability. (In re Sergio R., supra, 106 Cal.App.4th at p. 607, fn. 10.) A minor is eligible for DEJ under section 790 if he or she is accused in a juvenile wardship proceeding of committing a felony offense and all of the following circumstances apply: "(1) The minor has not previously been declared to be a ward of the court for the commission of a felony offense. [¶] (2) The offense charged is not one of the offenses enumerated in subdivision (b) of Section 707. [¶] (3) The minor has not previously been committed to the custody of the Youth Authority. [¶] (4) The minors record does not indicate that probation has ever been revoked without being completed. [¶] (5) The minor is at least 14 years of age at the time of the hearing. [¶] (6) The minor is eligible for probation pursuant to Section 1203.06 of the Penal Code." (§ 790, subd. (a)(1)-(6).)

There is no dispute here that defendant was eligible for DEJ.

After eligibility is determined, "the court may summarily grant DEJ or refer the matter to the probation department for further investigation. The department is required to take into consideration `the defendants age, maturity, educational background, family relationship, demonstrable motivation, treatment history, if any, and other mitigating and aggravating factors in determining whether the minor is a person who would be benefited by education, treatment, or rehabilitation. (§ 791, subd. (b).)" (Martha C. v. Superior Court (2003) 108 Cal.App.4th 556, 559 (Martha C.).)

"[T]he juvenile court has discretion to grant deferred entry of judgment to an eligible minor. [D]enial of deferred entry of judgment is not an abuse of discretion merely because the minor has satisfied the eligibility requirements of section 790, subdivision (a), and [rule 5.800]. Instead, the court makes an independent determination after consideration of the `suitability factors specified in [rule 5.800] and section 791, subdivision (b), with the exercise of discretion based upon the standard of whether the minor will derive benefit from `education, treatment, and rehabilitation rather than a more restrictive commitment. [Citations.]" (In re Sergio R., supra, 106 Cal.App.4th at p. 607, fn. omitted.)

The factors set forth in section 791, subdivision (b) are "[the minors] age, maturity, educational background, family relationships, demonstrable motivation, treatment history, if any, and other mitigating and aggravating factors ...." Rule 5.800(d)(3)(A)(i) identifies the factors affecting suitability, in virtually identical language, as "[t]he childs age, maturity, educational background, family relationships, motivation, any treatment history, and any other relevant factors regarding the benefit the child would derive from education, treatment, and rehabilitation efforts ...." A court may deny DEJ to an eligible minor "only if [the court] determines the minor would not benefit from the education, treatment or rehabilitation available through the [DEJ] program." (Martha C., supra, 108 Cal.App.4th at p. 560.) "The court is charged with making `the final determination regarding education, treatment, and rehabilitation of the minor. [Citation.] There is nothing in [section 791] suggesting that any consideration other than the minors nonamenability to rehabilitation is a proper basis for denying deferred entry of judgment. Such a narrow limitation on the bases for denial is consistent with the strong preference for rehabilitation stated in the Declaration and Findings section of Proposition 21." (Martha C., supra, at p. 561.)

The determination to grant or deny DEJ may be reversed only upon a showing of abuse of discretion. (See In re Sergio R., supra, 106 Cal.App.4th at p. 607.) Judicial discretion is abused only if it results in an arbitrary or capricious disposition, or implies whimsical thinking, and "exceeds the bounds of reason, all of the circumstances being considered. [Citations.]" (People v. Giminez (1975) 14 Cal.3d 68, 72.)

After reviewing the entire record in this case, we disagree with defendant that the court erred in any of the ways he claims. Indeed, the court carefully considered the circumstances before it, including the seriousness of the crimes, the risk that the complicated safety plan would fail, the risk that the victim might initiate contact, the risk that further contact might occur, and the risk that the victim might not disclose further contact. In light of these factors, the court determined that defendant would not benefit from the education, treatment or rehabilitation available in a placement in his family home through the DEJ program, and that he would instead benefit from the education, treatment and rehabilitation available through the more intensely supervised setting of a sexual offender group home, away from the risk of reoffending the victim. The court did not abuse its discretion by denying defendants participation in the DEJ program.

DISPOSITION

The juvenile courts order is affirmed.


Summaries of

In re R.H.

Court of Appeal of California
Sep 19, 2008
No. F054298 (Cal. Ct. App. Sep. 19, 2008)
Case details for

In re R.H.

Case Details

Full title:In re R.H., a Person Coming Under the Juvenile Court Law. THE PEOPLE…

Court:Court of Appeal of California

Date published: Sep 19, 2008

Citations

No. F054298 (Cal. Ct. App. Sep. 19, 2008)