Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. 08CEJ600447-1, David A. Gottlieb, Judge.
Rachel Lederman, 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, Louis M. Vasquez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Gomes, J., and Dawson, J.
INTRODUCTION
On April 2, 2008, a petition was filed pursuant to Welfare and Institutions Code section 602 alleging appellant, R.V., committed one count of continuous sexual abuse upon a minor under age 14 (Pen. Code, § 288.5, subd. (a), count one), forcible lewd act on a minor under age 14 (§ 288, subd. (b)(1), count two), assault with intent to commit a lewd and lascivious act on a child (§ 220, count three), continuous sexual abuse on a minor under age 14 (§ 288.5, subd. (a), count four), and two counts of a lewd act upon a minor under age 14 (§ 288, subd. (a), counts five & six). On May 14, 2008, appellant waived his constitutional rights to a hearing and admitted count two. The juvenile court granted the prosecutor’s motion to dismiss the remaining allegations with the right to comment on the dismissed allegations.
Unless otherwise indicated, all statutory references are to the Penal Code.
On July 15, 2008, the juvenile court committed appellant to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF) for the maximum term of confinement of three years. Appellant contends the juvenile court abused its discretion in committing him to the DJF.
DJF was formerly known as the California Youth Authority (CYA). (In re Lemanuel C. (2007) 41 Cal.4th 33, 37, fn. 2.) DJF was renamed by statutory enactment in 2005. (Welf. & Inst. Code, §§ 202, subd. (e)(5), §§ 1000, 1703, subd. (c), & 1710, subd. (a).) The DJF is part of the Division of Juvenile Justice. (Gov. Code, §§ 12838, 12838.3, 12838.5, 12838.13.) DJF is referenced in statutes, such as Welfare and Institutions Code sections 731 and 733, that formerly referred to CYA. (In re N.D. (2008) 167 Cal.App.4th 885, 890, fn. 2.) In this opinion, we will use the name DJF uniformly, even when referring to older cases and statutes.
FACTS
On March 24, 2008, police officers investigated a report of child molestation of three confidential victims (CV1, CV2, and CV3). CV1, who was 12 years old, reported that two or three years earlier, appellant was babysitting her. Appellant placed CV1 in a room and closed the door. Appellant had CV1 remove her pants and underwear and he would touch her private area and forced her to suck on his penis several times. Appellant also inserted his finger into CV1’s vagina. On several occasions, appellant attempted to have sexual intercourse with CV1. Appellant told CV1 she would get into trouble if she did not comply with his demands.
CV1 said that CV2 confided to her that appellant did the same thing to her. The last time this happened to CV2 was three days earlier. On March 28, 2008, the officers spoke to CV3, who was crying. CV3 said appellant took her hand and “put it on her private.” CV3 told her mother that appellant took CV3’s hand and put “it on his private.” After waiving his Miranda rights, appellant admitted the incident with CV3 but denied touching CV1 or CV2. Appellant is related to all three confidential victims.
Miranda v. Arizona (1966) 384 U.S. 436.
The probation officer filed a report noting that appellant was in good health and had no history of psychological treatment. Appellant is well behaved at home, is respectful, usually follows curfew, and lives in a good neighborhood. There is no prior history of allegations of abuse, neglect, or a referral to Child Protective Services. Appellant tried alcohol and once used marijuana. Appellant denied involvement with any gang.
Appellant has no prior juvenile record and acknowledged wrongdoing at an early stage of the judicial process. The probation officer noted appellant committed an offense that involved acts disclosing a high degree of cruelty, viciousness, or callousness. The probation officer found the victim to be particularly vulnerable, the offense involved planning, and appellant took advantage of a position of trust.
The probation officer considered less restrictive programs such as electronic monitoring, a community service work program, and the Elkhorn Correctional Facility Boot Camp or Delta Program. Because of appellant’s age (he was arrested a few months before his 18th birthday), the probation officer did find there was enough time to rehabilitate appellant given the nature of his offense. The probation officer contacted an intake officer at the DJF. The intake officer stated appellant would be placed in high school and would be in programs instructing him on victim awareness, substance abuse, anger management, and sexual offender treatment. The probation officer recommended appellant’s commitment to the DJF for the maximum term of confinement of eight years.
The court referred appellant to a psychologist for an evaluation. The psychologist prepared a report noting that the purpose for his appointment was to gather information pertinent to the court hearing, to assess appellant’s psychological functioning, to aid in disposition recommendations, and to determine appellant’s risk of reoffending. The psychologist noted appellant showed no symptoms of psychosis or delusions. Appellant had difficulty controlling his temper and was in many verbal altercations while in academic settings. Testing of appellant revealed he had increased anxiety and depression. Appellant did not verbally express remorse.
The psychologist found that appellant had a deviant sexual interest in younger, prepubescent children. Appellant assaulted one victim two or more times. Appellant showed risk factors which increase his probability of reoffending such as an antisocial defiance of authority figures and a violation of rules at school and the community, negative peer associations, escalation of anger, poor regulation of affect and behavior, and a home environment that supports opportunities for appellant to sexually reoffend. The psychologist concluded appellant’s risk of sexually reoffending to be moderate to high.
The psychologist recommended a highly structured and stable environment for appellant. The psychologist noted that appellant reported considerable anxiety and moderate depression. There was no evidence of obsessions, rumination, brooding, delusions, hallucinations, or perceptual disturbances. The psychologist recommended appellant participate in individual counseling, group counseling for sexual offenders, a substance abuse treatment program, be assisted in obtaining his general education degree, and be evaluated by a psychiatrist concerning the efficacy of medication to address his anxiety and depression.
At the disposition hearing on July 15, 2008, defense counsel noted there were no additions or corrections to make to the probation report. The prosecutor noted that although this was appellant’s first contact with the juvenile court system, his conduct involved three separate victims and betrayal of trust and confidence. The prosecutor was concerned that appellant needed a highly structured environment and that his risk of sexually reoffending was moderate to high. The prosecutor argued appellant could receive rehabilitation at the DJF and that local placement was inconsistent with public safety.
Defense counsel filed a statement in mitigation noting appellant had no prior criminal record, he lost his father at a young age, he cares for his mother who has a serious health condition, appellant demonstrated extreme remorse to his counsel, appellant was attending school, and was doing well at the Juvenile Justice Campus. Appellant’s father died in 2005. Appellant was close to his father and his father’s death adversely affected him. Counsel argued appellant could receive services and treatment locally, return home, and there would be no children at home. Counsel argued appellant should not be committed to DJF.
At the hearing, defense counsel submitted on the statement in mitigation. Counsel noted that when appellant began the molestations, he was only 14 years old and that he needed a structured setting. Structure, however, did not necessarily require a secured facility. Counsel pointed out that there was no way of knowing whether appellant would sexually reoffend. Counsel argued that no local alternatives had been offered to appellant. Counsel believed there are programs and services that could be afforded appellant through the probation department.
The juvenile court noted that although appellant admitted only one allegation, there were multiple victims and the other allegations were dismissed with the right to comment. The court found appellant’s contact with the victims was substantial and occurred more than once. The court found the number of victims and the ongoing contact with the victims indicated appellant was at a high risk of reoffending.
The court believed appellant was remorseful but was not sure appellant understood the depth of harm that he caused. Concerning the psychologist’s recommendation for a highly structured and stable environment, the court was concerned about appellant’s ability to reoffend, his ability to receive appropriate services for a lengthy period of time, and the setting in which treatment was provided. The court was concerned as well for public safety. Having considered all the factors, the court found it was appropriate to commit appellant to the DJF.
The court noted, however, that appellant had no prior delinquent history, he admitted involvement in the crime at a relatively early stage of the proceedings, he lost his father, his mother suffered from medical problems, and appellant performed well at the Juvenile Justice Campus. The court set appellant’s maximum term of confinement at three years.
COMMITMENT TO DJF
Appellant contends the juvenile court abused its discretion in committing him to the DJF. 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 the DJF 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.) Courts do not necessarily abuse their discretion in ordering a juvenile to the most restrictive placement before other options have been tried. (In re Eddie M. (2003) 31 Cal.4th 480, 507.)
The gravity of an offense, coupled with other relevant factors, is a consideration in committing a juvenile to the DJF. (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.) Relevant considerations include the nature, duration, and context of the delinquent conduct, including the gravity of the offense. (Welf. & Inst. Code, § 725.5; In re Samuel B., supra, 184 Cal.App.3d at pp. 1103-1104.) The court may also consider the need to hold the minor accountable for his or her actions (Welf. & Inst. Code, § 202, subd. (b)), and the community’s interest in being protected from crime during rehabilitative efforts (Welf. & Inst. Code, § 202, subd. (a); In re Lorenza M. (1989) 212 Cal.App.3d 49, 57-58).
It is error for a juvenile court to fail to consider less restrictive alternatives to DJF 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 DJF commitment. Though the only evidence in the probation report showed the juvenile was an unsuitable candidate for the DJF, 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 the DJF. (Id. at pp. 578-579.)
Here, in contrast to Teofilio A., the probation officer and the juvenile court considered less restrictive alternatives to a commitment to DJF but noted there were no appropriate local programs for appellant. The court clearly rejected defense counsel’s arguments that placement locally with services provided by the probation department would be appropriate in this case. The probation officer determined from a DJF intake officer that services provided by DJF would include education as well as programs instructing him on victim awareness, substance abuse, anger management, and sexual offender treatment. We therefore reject appellant’s argument that there are no rehabilitation programs available to him at DJF. The psychologist who evaluated appellant believed that he needed a highly structured and stable environment, something the prosecutor argued could not be provided locally.
We also reject arguments by appellant concerning investigations and reports of the DJF that are highly critical of the services provided to juveniles in general and for sexual offenders in particular. Appellant is implicitly, if not expressly, asking this court to take judicial notice of these reports. We agree with respondent that this information was not before the juvenile court. We normally do not take judicial notice of documents which are not before the trial court. (See People v. Sanders (2003) 31 Cal.4th 318, 323, fn. 1; People v. Amador (2000) 24 Cal.4th 387, 394; People v. Preslie (1977) 70 Cal.App.3d 486, 493.) We therefore will not consider the reports referenced by appellant in his opening brief.
The court further evaluated the gravity of appellant’s conduct, which included sexual molestation of three different family members on multiple occasions. The court was entitled to consider the gravity of appellant’s conduct as well as safety to the community. The court was concerned with the probability that appellant would reoffend. We further note that the court did not impose the recommended maximum term of commitment of eight years but exercised its discretion to limit appellant’s commitment to three years. In committing appellant to the DJF, the juvenile court did not abuse its discretion.
DISPOSITION
The judgment is affirmed.
Appellant uses these reports to argue that he will not receive sexual offender treatment, substance abuse treatment, or mental health treatment for the moderate depression identified by the psychologist. There was no evidence before the juvenile court, however, that these services, including medical and psychiatric treatment, would not be available to appellant at DJF.