Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Monterey County Super. Ct. No. J39211
ELIA, J.Timothy C. appeals from an order committing him to the California Youth Authority (CYA). His principal contention on appeal is that the juvenile court abused its discretion in committing him to the CYA because the record does not support the judicial finding of "probable benefit" of such commitment. We find no abuse of discretion.
Beginning July 1, 2005, California's Youth Authority was replaced by the Department of Corrections and Rehabilitation, Division of Juvenile Facilities. (See Pen. Code, § 6001, Gov. Code, § 12838.5.) On that date forward, all statutory references to CYA mean the Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF). (See Welf. & Inst. Code, §§ 1703, 1710, see also § 1711; cf. Jud. Council Forms, form JV-732 [commitment to the Department of Corrections and Rehabilitation, Division of Juvenile Justice].) Nevertheless, on April 14, 2006, the juvenile court ordered appellant committed to the CYA. Since the parties and the juvenile court referred to the CYA throughout the proceedings, we also refer to the CYA for the sake of clarity and consistency, but these references should be interpreted to mean the Department of Corrections and Rehabilitation, Division of Juvenile Facilities where appropriate.
A. Factual and Procedural History
On August 10, 2004, a 24-count petition was filed against appellant under Welfare and Institutions Code section 602. Appellant admitted nine criminal law violations allegedly committed in February 2004: four felony violations of Vehicle Code section 10851, subdivision (a), (counts one, three, nine, 19) (unlawful driving and taking of a vehicle) and one felony violation of Penal Code section 496d, subdivision (a), (count 14) (buying and receiving stolen motor vehicle), and four misdemeanor violations of Penal Code section 496d, subdivision (a) (counts six, eight, 12, 16). The remaining counts were dismissed with the understanding that the facts could be considered at the dispositional hearing.
All further statutory references are to Welfare and Institutions Code unless otherwise stated.
On October 5, 2004, appellant was declared a ward of the court, placed under the supervision of a probation officer for 24 months, and ordered to obey the stated terms of probation, which required him to, inter alia, obey all laws, observe a specified curfew, not possess or wear gang clothing or paraphernalia, not use or possess alcohol or narcotics, not possess any weapon or any type of ammunition. He was also ordered to spend 45 days in Juvenile Hall, to complete a drug and alcohol awareness program and a victim impact program, and to participate in the "Families in Control" Program and counseling as directed by the probation officer.
On June 20, 2005, a notice under section 777 was filed against appellant for violating probation. The notice alleged that appellant, then 17 years of age, had been arrested on June 16, 2005 for violations of Penal Code sections 288, subdivision (a), (lewd or lascivious act upon child under 14) and 289, subdivision (h) (unlawful sexual penetration). The notice stated that, according to police, appellant and the girl had met on line and then in person.
On September 7, 2005, a second notice under section 777 was filed against appellant alleging further probation violations. The notice asserted that (1) appellant had been arrested on September 4, 2005 for violations of Penal Code sections 261.5, subdivision (a) (unlawful sexual intercourse) and section 148.9, subdivision (a) (false representation of identity to peace officer), (2) appellant had worn red clothing on September 4, 2005 in violation of the probation condition that he not wear gang paraphernalia, and (3) appellant had violated his curfew on September 4, 2005. The notice stated that, according to a police report, appellant had been found in the bedroom of a 16-year-old female, who admitted having sexual intercourse with appellant.
On September 15, 2005, an eight-count petition under section 602 was filed against appellant for the criminal law violations allegedly occurring the previous June. The petition gave notice with respect to particular counts that "adjudication as a ward of the Court for this offense and a disposition to the California Youth Authority will require you to register pursuant to Section 290 of the Penal Code." The petition further alleged under section 777 that the previous disposition had been ineffective in rehabilitating appellant and the previously sustained petition could be used "in aggregating the total amount of time the minor can be removed from the custody of his parents."
The record in this case refers to a separate adult prosecution and indicates that, on November 2, 2005, appellant, who had turned 18 the previous July, pleaded no contest to a charge of Penal Code section 602.5, subdivision (b) (aggravated trespass of a residence) after being found in the bedroom of a 16-year-old female on September 4, 2005. The original charge, unlawful sexual intercourse (Pen. Code, § 261.5, subd. (b)), was dismissed. He was placed on three years formal adult probation.
On November 17, 2005, appellant conditionally admitted count one (Pen. Code, § 288, subd. (a)) of the section 602 petition and the alleged probation violations, as amended in court, with the understanding that he would be allowed to withdraw his admissions if the judge concluded that a CYA commitment was warranted. The remaining counts were dismissed with the understanding that all facts could be considered at dispositional hearing, scheduled for December 12, 2005.
On December 7, 2005, a supplemental probation report was filed. Counsel for appellant filed a memorandum regarding mitigating factors relevant to disposition. Attached was a copy of the police interview of the 12-year-old female victim. The memorandum pointed out that the girl lied about her age and she was a willing participant. It argued that appellant's response upon learning the girl's actual age should be considered in context. In the interview, the girl admitted that appellant and she had sex once on each of the two nights she had stayed with him. She stated, "We both equally wanted it." She informed the interviewer that she had told appellant that she was 16 years old and everybody thought she was 16 or 15 and "one guy thought [she] was 17 or 19." She also stated that, after she revealed to appellant that she was only 12 that morning, appellant said, "Who cares?" They both agreed that age does not matter. The girl also told the interviewer that it was her parents' fault that she was missing and she was "just teaching them a lesson."
At the dispositional hearing on December 12, 2005, the juvenile court continued appellant as a ward of the court and ordered him committed to the CYA. On December 14, 2005, the juvenile court allowed appellant to withdraw his admissions and vacated the previous orders.
On February 14, 2006, appellant admitted counts one (§ 288, subd. (a)), two (§ 261.5, subd. (c)), and five (§ 261.5, subd. (c)) of the section 602 petition alleging the June 2005 violations. Appellant acknowledged that, by admitting those allegations, he was also admitting he had violated probation. The deputy district attorney moved to dismiss the remaining counts with the understanding that all facts could be considered at the dispositional hearing. The court took the motion under submission.
A supplemental probation report was filed on March 7, 2006. The probation report described the circumstances of the June 2005 offenses and provided statements made by appellant and his mother. The probation report noted that appellant had utilized a false name while pursuing a relationship with the girl over the Internet. According to the report, he had "sent sexually explicit email messages" and a picture of a penis to the girl. Following a missing person report, police investigators located the girl at appellant's home. During questioning, she admitted to having sex with appellant on two occasions and being digitally penetrated on three occasions. Appellant had said, "Who cares?" when the girl finally told him that she was only 12. The girl initially told police that she would not cooperate in a prosecution of appellant.
Appellant stated that he and the victim had spoken and she had told him that she had been kicked out of her house. He had driven to meet her at the movies, even though he did not have a valid driver's license. Afterward, he had taken the girl and two other friends to his house because they wanted to continue watching movies. Appellant's mother had indicated that she had been away with her boyfriend for the weekend and she felt that "she should have been more strict and more aware of the ward's activities in the home."
The probation report stated that, on the previously sustained petition, the juvenile court had ordered appellant to "complete Victim Awareness, Sunrise House, Youth Alternatives to Violence (YATV), 45 hours of community service, and Families in Control." The report noted that appellant had not completed the programs to which he had been referred but he had attended some classes. It indicated that there had been several violations of probation involving alcohol, a B.B. gun, and red sweaters in his room but they had been handled informally. It acknowledged that appellant had reported to probation and all drug tests had been negative.
The report mentioned appellant's adult case involving "sexual improprieties" with a 16 year old and his proffer of a false name and false date of birth to police arising from his conduct shortly after the June 2005 offenses. In the adult matter, appellant had told another probation officer that "he looks young, and girls like to date older boys, therefore he has to date girls that look younger than him" and "girls his age are promiscuous and he likes less experienced girls."
It was the probation officer's assessment that appellant "clearly has little regard for the law, his Probation status, or his young victims." The probation officer concluded that appellant "continues to lie about his age and about his name in order to carry out his sexual desires with his victims" and "lies about his identity to hide his indiscretions in attempts to get away from consequences." The officer felt appellant would not be "receptive to less restrictive rehabilitative efforts" and recommended that he be sent to the CYA. At the CYA, appellant would continue his education and obtain a GED or high school diploma and he "would also receive services for anger management, victim awareness, individual counseling and complete a sex offender program."
Counsel for appellant filed a "sentencing brief" on March 8, 2006. Attached was a letter written by the female teen involved in the September 2005 criminal law violation. She wrote in part: "I've known Tim since July of 2005. We are in a relationship of girlfriend and boyfriend. Hes [sic] a good boyfriend. He would call me to ask me how my day was and was interested in everything I did. . . . Tim really helped me through some personal problems I have. I really care for Tim. He cares about me and my life. Tim is very smart and was always helping me with homework or encouraging me to get good grades and stay in school. Tim is a very descent [sic], respectful, caring, and honest guy. Although we didn't handle our relationship the right way and I'm sorry, but I believe Tim deserves a second chance. . . . To be honest I am still waiting for Timothy because he means a lot [sic] to me not only as a boyfriend but as a friend. I wouldn't be writing this letter or waiting for him if he wasn't such a good guy. . . ."
At the dispositional hearing on March 10, 2006, the deputy district attorney argued that appellant had not done well on probation and CYA programs could "benefit him in terms of getting his GED and any counseling that he might need." She informed the court that there were not "really many less-restrictive alternatives available to him because he is 18 right now." She suggested that the sex registration issue could be resolved later, after seeing how appellant performed over the next three years, and appellant would then have the opportunity to request that the juvenile court dismiss the section 288, subdivision (a), offense. The hearing was continued.
At a hearing on March 17, 2006, the juvenile court ordered an additional supplemental probation report prepared by a different probation officer who would reevaluate based upon full information and addressing the issue whether the victim appeared older than her age. The additional supplemental probation report was filed on April 11, 2006.
The new report indicated that the victim's e-mail profile identified her as being 15 years old. The police had interviewed the girl on June 16, 2005 after locating her at appellant's home, where she had stayed for two nights. She stated that the two had met online and had been in contact for a month or two. She acknowledged that appellant had "sent her a picture of his penis via email." She thought that she had been the one to ask him out and stated that she had been kicked out of her house. She admitted they had consensual sex twice, once each night that she had stayed over, and there had also been digital penetration. The girl indicated to police that they had intended to engage in further sexual intercourse, "We were going to do it today. But you guys hadda go and ruin it!" She stated she had told appellant that "she was sixteen and he believed her." The morning of June 16, the girl told appellant she was actually 12 years old and appellant had replied, "Who cares?" When police confronted her with the fact that appellant had lied about his name, she replied, "And I lied to him about my age." At that time, the girl "refused to cooperate in any way that would aid in the criminal prosecution" of appellant.
According to appellant's statement, during their telephone conversations, the girl had told him that she was 16 years old. Appellant explained that she had telephoned him. The girl, who was crying, had told him that her parents had kicked her out of the house and she did not have a place to stay for the night, and asked him to pick her up at a movie theatre at a particular mall. At about 11:00 p.m., appellant drove his mother's vehicle, without a valid driver's license or his mother's permission, to the mall and picked up the girl and two of her friends. Appellant recalled that he brought them all to his home, where both his mother and brother were out, and "they watched movies all night." He admitted to engaging in sexual intercourse on two occasions and digital vaginal penetration. Appellant claimed he did not find out the girl's true age "until the police were at his front door." Appellant stated that the police had telephoned his mother at her work and then his mother had called him and advised him of the girl's age.
The probation report indicated that the girl's father, mother, and grandparents had written victim impact letters and another letter was undersigned by 61 friends of the family. They all sought the "maximum sentence." The father indicated that the girl was having self-esteem, trust, and school performance problems.
The probation report acknowledged that the high school junior involved in the September offense had written a character reference letter on behalf of appellant. According to the probation report, the teen stated that appellant is "a good and caring boyfriend who deserves a second chance" and "she cares, loves and is waiting for him." The probation officer inferred from this letter that appellant "continues his criminal behavior" and "maintains a relationship with his 16-year-old victim, which additionally is in direct violation of his adult probation."
The probation officer concluded that the CYA was appropriate because "[t]he 12-year-old victim was coerced into an act that she most likely would not have done without being charmed, manipulated, and coerced by the ward." The probation officer noted in the report that appellant's counsel had said "sentencing the fragile, 120-lb. ward to CYA amongst thugs and violent criminals would be a year of hell" and commented that "[t]he fact remains the ward is a criminal and one year of 'hell' is nothing compared as to the lifelong and altering effects his criminal behavior has left upon his victims." The officer observed that appellant had been "afforded numerous chances while under probation supervision" and "his prior stays in Juvenile Hall ha[d] not helped as he continued to commit new offenses and violate his terms of probation." The officer opined that "the fact that he committed his adult offense within approximately two months of the instant matter proves that his criminal and deviant behavior such as preying on minors will not cease." The officer concluded that "[f]urther probation supervision is not a viable recommendation as the ward has proven to be impervious to less preventative rehabilitative efforts" and "[i]n a controlled and secure environment such as the CYA, the ward would get the necessary counseling that address[es] his specific problems, as well as continued education."
At the dispositional hearing on April 14, 2006, the juvenile court indicated that it had read, considered, and received into evidence the March and April supplemental probation reports and had received, reviewed, and considered appellant's "sentencing brief" and the three victim-impact statements. (See § 706; Cal. Rules of Court, rule 5.785(b) (former rule 1492).) The court stated: "The California Youth Authority has programs that would benefit the ward. Less restrictive alternatives have proven to be ineffective and inappropriate. The best interest and welfare of the ward requires the California Youth Authority. The protection and welfare of society requires [sic] the ward be placed in a secure facility." The court continued appellant as a ward of the court and committed him to the CYA.
B. CYA Commitment
On appeal, it is asserted that the record lacks "substantial evidence" to support the juvenile court's finding that CYA has programs that would benefit appellant and, therefore, the court abused its discretion in ordering such commitment. Appellant maintains that the probation officer preparing the April 2006 supplemental probation report based the CYA recommendation on "improper retributive goals" since the officer implicitly accepted his counsel's claim that a CYA commitment would cause him harm given his slight stature and lack of criminal sophistication. He suggests that the court impliedly accepted his counsel's claim as well but inconsistently found he was an appropriate candidate for the CYA. Appellant urges us to dismiss the proceedings if no appropriate placement is available.
Before ordering a commitment to the CYA (now the DJF), "[t]he court must find that CYA would likely benefit the ward (§ 734), and that it otherwise serves the statutory aims. (In re Ricky H. (1981) 30 Cal.3d 176, 184 . . . .)" (In re Eddie M. (2003) 31 Cal.4th 480, 488.) Section 734 provides: "No ward of the juvenile court shall be committed to the Youth Authority unless the judge of the court is fully satisfied that the mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefited by the reformatory educational discipline or other treatment provided by the Youth Authority."
Section 734, which has not been amended since its enactment in 1961 (Stats.1961, ch. 1616, § 2, p. 3487), "makes it clear that a CYA commitment may not be made for the sole reason that suitable alternatives do not exist." (In re Aline D. (1975) 14 Cal.3d 557, 562.) In In re Aline D., supra, 14 Cal.3d 557, the California Supreme Court "held as a corollary to the mandate of section 734 that '[t]he unavailability of suitable alternatives, standing alone, does not justify the commitment of a nondelinquent or marginally delinquent child to an institution [the Youth Authority] primarily designed for the incarceration and discipline of serious offenders.' (In re Aline D. (1975) 14 Cal.3d 557, 567 . . . .)" (In re Ricky H. (1981) 30 Cal.3d 176, 182-183.) "Instead, the court must be 'fully satisfied' that a CYA commitment probably will benefit the minor." (In re Aline D., supra, 14 Cal.3d at p. 562.)
On the other hand, "[n]othing bars CYA for section 602 wards who have received no other placement. [Citations.]" (In re Eddie M., supra, 31 Cal.4th at p. 488.) As the California Supreme Court has explained subsequent to Aline D., "It bears emphasis that former section 502-the predecessor to section 202-stated an explicit preference for juvenile court treatment 'in [the minor's] own home.' (Former § 502, repealed by Stats.1976, ch. 1068, §§ 1.5, 14, pp. 4741, 4781; see In re Aline D. (1975) 14 Cal.3d 557, 562 . . . .) Given this priority, which has since been removed from the statutory scheme, it was understood that persons within the juvenile court's jurisdiction under section 602 would receive the most lenient disposition initially, and that more restrictive alternatives could be imposed only incrementally after less restrictive options had each been tried. In particular, CYA was considered a last resort, available ' "only after all else ha[d] failed." ' (In re Aline D., supra, 14 Cal.3d at p. 564 . . . .)" (In re Eddie M., supra, 31 Cal.4th at p. 507, fn. 16.)
"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. (Stats.1984, ch. 756, §§ 1, 2.)" (In re Lorenza M. (1989) 212 Cal.App.3d 49, 57.) Section 202 currently reads in pertinent part: "Minors under the jurisdiction of the juvenile court as a consequence of delinquent conduct shall, in conformity with the interests 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." (§ 202, subd. (b).) "Punishment," however, does not include retribution. (§ 202, subd. (e).) Section 202 also states: "Juvenile courts and other public agencies charged with enforcing, interpreting, and administering the juvenile court law shall consider the safety and protection of the public, the importance of redressing injuries to victims, and the best interests of the minor in all deliberations pursuant to this chapter. Participants in the juvenile justice system shall hold themselves accountable for its results." (§ 202, subd. (d).)
"Within these bounds, the court has broad discretion to choose probation and/or various forms of custodial confinement in order to hold juveniles accountable for their behavior, and to protect the public. ([§ 202], subd. (e).) The voters reaffirmed these basic principles when they approved Proposition 21, including changes to section 777. (Ballot Pamp., supra, text of Prop. 21, p. 119.) Given these aims, and absent any contrary provision, juvenile placements need not follow any particular order under section 602 and section 777, including from the least to the most restrictive. [Citations.] Nor does the court necessarily abuse its discretion by ordering the most restrictive placement before other options have been tried. (Ricky H., supra, 30 Cal.3d 176 . . .; In re John H., supra, 21 Cal.3d 18, 27 . . . .)" (In re Eddie M., supra, 31 Cal.4th at p. 507.)
We see nothing in the record from which it may be reasonably implied that the juvenile court believed a CYA commitment would be harmful or not beneficial to appellant. The court made an express finding to the contrary, that is that the CYA offered programs that would benefit appellant. While the probation officers arguably took a harsh view of the facts that the juvenile court accepted, we do not discern from the record that any probation officer, or the court for that matter, acted for improper purposes of revenge. Punishment consistent with rehabilitative objectives is not retribution (§ 202, subds. (b) and (e)) and permissible punishment includes a commitment to the CYA (§ 202, subd. (e)).
Even if a reviewing court would not have necessarily reached the same disposition as the juvenile court, it may not substitute its judgment. "The decision of the juvenile court may be reversed on appeal only upon a showing that the court abused its discretion in committing a minor to CYA. (In re Eugene R. (1980) 107 Cal.App.3d 605, 617 . . .; In re Todd W. (1979) 96 Cal.App.3d 408, 416 . . . .) . . . We 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 Eugene R., supra, at p. 617; In re Michael R. (1977) 73 Cal.App.3d 327, 332-333 . . . .) 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. (§ 200 et seq.; In re Todd W., supra, at pp. 416-417.)" (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.)
In this case, the supplemental probation reports recognized that appellant had not completed the programs to which he had been originally referred and he had not succeeded on probation and had committed a further offense following the June 2005 offenses. The reports indicated that appellant would benefit from a CYA commitment because he could continue his education, obtain his GED, and receive various counseling services under close supervision. Substantial evidence supports the juvenile court's conclusion that appellant would benefit from a CYA commitment.
The order of commitment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.