Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. JW123638. Louie L. Vega, Judge.
Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Franson, J.
Appellant W.M. admitted one count of a six-count petition alleging that, while he was between 15 and 16 years of age, he committed a lewd and lascivious act with the six-year-old son of the family he was living with, in violation of Penal Code section 288, subdivision (a). He appeals from the juvenile court’s disposition committing him to the California Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF). He contends statutory provisions preclude him from a DJF commitment for his admitted offense and, in the alternative, the juvenile court abused its discretion in committing him to the DJF because it failed to take into consideration mitigating facts and less restrictive alternatives. We reject both these arguments and affirm the judgment.
The correctional agency formerly known as the Department of the Youth Authority (or California Youth Authority) became known in 2005 as the Department of Corrections and Rehabilitation, Division of Juvenile Facilities. (Welf. & Inst. Code, § 1710, subd. (a).) The DJF is part of the Division of Juvenile Justice. (Gov. Code, §§ 12838, 12838.3, 12838.5; In re M.B. (2009) 174 Cal.App.4th 1472, 1474, fn. 2.)
FACTUAL AND PROCEDURAL HISTORY
Information about the offense is gleaned primarily from the Report of Probation Officer (RPO) prepared for the dispositional hearing.
Appellant and his family temporarily moved in with the D. family several years ago, out of a hardship necessity. Sometime after, the D. family agreed to let appellant continue to live at their home so he could continue attending his then-current high school. Appellant would occasionally babysit the children, N.D., age six, and his younger brother, D.D., age five, while their parents ran errands or fulfilled other commitments.
In March 2010, N.D. spontaneously disclosed to his mother that appellant sexually abused him when the parents were away from home. Eventually, through discussions with a third party and law enforcement, N.D. revealed a pattern of sexual abuse including oral copulation, sodomy, and other lewd and lascivious acts.
After initially denying any sexual contact with either N.D. or D.D., appellant eventually admitted to police officers that he sodomized N.D. on at least three to five occasions, had N.D. orally copulate him on three to five occasions, sodomized D.D. on one occasion, and had D.D. orally copulate him on one occasion.
A juvenile petition was filed and six counts of various acts of sexual abuse were alleged, including count 1, lewd or lascivious act with a child under the age of 14 years. (Pen. Code, § 288, subd. (a).) At the jurisdictional hearing, appellant admitted count one and the remaining counts were dismissed without prejudice.
At the dispositional hearing, the juvenile court noted the probation report recommended a DJF commitment for appellant and heard arguments from both parties on the matter. Appellant argued for placement in the Kern Crossroads Facility or in a group home. The prosecution argued against any alternative but the DJF. The court also heard from the victims’ mother, who suggested appellant be placed in a group home with extensive counseling, rather than committed to the DJF.
The juvenile court set forth a number of reasons for its decision before imposing a DJF commitment with a maximum term of confinement of eight years, less credit for time served.
DISCUSSION
Appellant contends the plain meaning statutory construction of Welfare and Institutions Code section 731, subdivision (a)(4) (hereafter section 731(a)(4)) bars his commitment to the DJF because he has not been found true of committing an offense listed in section 707, subdivision (b) (hereafter section 707(b)). In the alternative, he contends the juvenile court abused its discretion in imposing the DJF commitment because it relied on the seriousness of the offense and the welfare of the victims, and failed to consider less restrictive alternatives in making its disposition. We are not persuaded by either argument and affirm the judgment.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. SECTION 731(a)(4) PERMITS APPELLANT’S DJF COMMITMENT
Section 731, subdivision (a) states in pertinent part: “If a minor is adjudged a ward of the court on the ground that he or she is a person described by Section 602, the court may order any of the types of treatment referred to in Section 727 and 730 and, in addition, may: [¶] … [¶] (4) Commit the ward to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities, if the ward has committed an offense described in subdivision (b) of Section 707 and is not otherwise ineligible for commitment to the division under Section 733.”
Penal Code section 288, subdivision (a) is not a section 707(b) offense.
Section 733 lists three conditions which exclude a ward from commitment to DJF, but adds two exceptions to this exclusion: (1) section 707(b) listed offenses and (2) sex offenses listed in Penal Code section 290.008. It states in pertinent part, “[a] ward of the juvenile court who meets any condition described below shall not be committed to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities: [¶] … [¶] (c) The ward has been or is adjudged a ward of the court pursuant to Section 602, and the most recent offense alleged in any petition and admitted or found to be true by the court is not described in subdivision (b) of Section 707, unless the offense is a sex offense set forth in subdivision (c) of Section 290.008 of the Penal Code.” (Hereinafter section 733(c).)
Penal Code section 290.008, subdivision (c)(2) includes the “offense defined in … [Penal Code] Section 288 ….”
Penal Code section 290.008, subdivision (c) sets forth certain sexual offenses requiring juveniles to register, including, “(1) Assault with intent to commit … any violation of [Penal Code] Section 264.1, 288, or 289 under [Penal Code] Section 220. [¶] (2) Any offense defined in … [Penal Code] section 288 or 288.5 …. [¶] (3) A violation of [Penal Code] Section 207 or 209 [kidnapping] committed with the intent to violate [Penal Code] Section 261, 286, 288, 288a, or 289.”
“‘Statutory interpretation begins with an analysis of the statutory language. [Citation.] “If the statute’s text evinces an unmistakable plain meaning, we need go no further.” [Citation.] If the statute’s language is ambiguous, we examine additional sources of information to determine the Legislature’s intent in drafting the statute. [Citations.]’ [Citation.]” (V.C. v. Superior Court (2009) 173 Cal.App.4th 1455, 1467-1468 (V.C.).)
Appellant asserts “[t]he Legislature has plainly indicated that in order for a minor to be committed to the DJJ/DJF [under section 731] he must[, as a threshold matter, ] be found to have committed a section 707, subdivision (b) offense.” Appellant points to section 731(a)(4)’s use of “and” to connect the 707(b) reference with the section 733 restriction. Appellant asserts the use of “and” creates two requirements for imposing a DJJ commitment: (1) commission of a 707(b) offense, and (2) eligibility under the restrictions of section 733.
Respondent points out that, “[i]f a DJF commitment under section 731 was limited solely to offenses listed in section 707, subdivision (b), that language, ‘unless the offense is a sex offense, ’ in section 733, subdivision (c), would be completely moot, and [make] the remainder of [section 733(c) redundant with section 731(a)(4)].” We agree with respondent.
This court addressed this precise issue in In re Robert M. (2011) 192 Cal.App.4th 329, a case now under review by our Supreme Court, review granted April 20, 2011, S191261, but pending resolution of their review of In re C.H. (May 18, 2010, B214707) [nonpub. opn.], a case both parties pointed out in briefings. In Robert M., we determined section 731(a)(4) permits a DJF commitment for a Penal Code section 288(a) offense.
The language of sections 731(a)(4) or 733(c), when read separately appears clear and unambiguous. But, when read together they are inconsistent. If we were to adopt W.M.’s interpretation of the two statutes, then the language in section 733(c)—that a youth shall be excluded from the DJF, “unless the offense is a sex offense set forth in subdivision (c) of Section 290.008 of the Penal Code”—would have no meaning or purpose. With its 2007 and 2008 amendments to section 733, the Legislature did not merely add, as an exception to the exclusionary clause, the inclusionary language of section 731(a)(4) (requiring that a § 707(b) offense be committed), but it also specifically included sex crimes listed in Penal Code section 290.008. “When two seemingly inconsistent statutes apply, we harmonize the competing statutes and ‘avoid an interpretation that requires one statute to be ignored.’” (Watkins v. County of Alameda (2009) 177 Cal.App.4th 320, 343.)
If a ward could only be committed to the DJF if he committed a section 707(b) offense, we would have to ignore the language in section 733(c) that includes, as an exception to the DJF exclusions, a ward who committed a sex offense set forth in subdivision (c) of Penal Code section 290.008. This we cannot do. The Legislature did not merely “mention” Penal Code section 290.008 in section 733(c), but expressly added that section along with section 707(b). Thus, it is clear the statutory language was added for a purpose. That purpose is to allow the court to commit a minor to the Division of Juvenile Facilities when the minor has committed an offense listed in Penal Code section 290.008.
This court has previously implicitly reached this same conclusion. In In re N.D. (2008) 167 Cal.App.4th 885, we explained the recently enacted limitations of DJF commitment decisions, quoting sections 731 and 733, and noting, “[n]one of the offenses alleged in any of the petitions against [the appellant] were described in section 707, subdivision (b), and none were sex offenses, ” (id. at p. 890) thus implying that section 707(b) offenses were considered separately from sex offenses and both types of offenses were eligible for DJF commitment.
Moreover, the Third District has also noted this interpretation in V.C., supra, 173 Cal.App.4th at pp.1459-1460: “On September 1, 2007, the Legislature amended former section 733. [Citation.] The new legislation limits eligibility for commitment to DJF to minors found to have committed the criminal offenses listed in section 707, subdivision (b) and the sex offenses listed in Penal Code section 290, former subdivision (d)(3). [Citation.]” (Italics added.) The court explained the statutory application to the petitioner, stating, “the 2007 petition originally alleged V.C. had committed three criminal offenses; one felony and two misdemeanors. The felony (lewd and lascivious conduct in violation of Pen. Code, § 288, subd. (a)) was a DJF eligible offense under the new terms of section 733(c). [Fn. omitted.]” (Id. at pp. 1465-1466.)
Legislative history supports our interpretation. As the V.C. court noted, “[t]he Senate Floor Analysis for section 733(c) explains ‘[t]his bill will stop the intake of youthful offenders adjudicated for non-violent, non-serious offenses … to the [DJF] ….’ [Citation.] The Assembly floor analysis [of the provision] similarly states the legislation ‘[p]rohibits the intake of youthful offenders adjudicated for non-violent, non-serious offenses … to the [DJF] ….’ [Citation.]” (V.C., supra, 173 Cal.App.4th at p. 1468.) The V.C. court concluded, “[t]he import of these analyses seems clear; the Legislature intended only currently violent or serious juvenile offenders to be sent to DJF ….” (Ibid.)
We note count 1 was charged as a serious felony, within the meaning of Penal Code section 1192.7, subdivision (c)(6), and which appellant admitted to at the jurisdictional hearing.
Having rejected appellant’s argument that the juvenile court acted contrary to section 733, subdivision (c), we also reject his contention that its state law error violated his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution.
II. THE JUVENILE COURT PROPERLY EXERCISED ITS DISCRETION WHEN IT COMMITTED APPELLANT TO THE DJF
Appellant asserts in the alternative the juvenile court abused its discretion in imposing a DJF commitment because it “focused exclusively on the disparity in age and physical maturity between appellant and the victims, and was unmoved by the facts that appellant denied the majority of the allegations, or mitigated them with an explanation regarding his history of drug abuse.” Appellant further asserts the juvenile court “erroneously overlooked a less restrictive program that could have suited appellant ….” The record fails to support appellant’s assertions.
“The appellate court reviews a commitment decision for abuse of discretion, indulging all reasonable inferences to support the juvenile court’s decision. [Citations.]” (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) Under section 734, “[n]o ward of the juvenile court shall be committed to the [DJF] 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 [DJF].” In making its judgment, the court must also consider the minor’s age, the circumstances and gravity of the offense, and the minor’s previous delinquent history. (§ 725.5.)
Commitment to the DJJ cannot be based solely on retribution grounds. (In re Michael D. (1987) 188 Cal.App.3d 1392, 1396 (Michael D.).) Evidence must demonstrate (1) a probable benefit to the minor and (2) that less restrictive alternatives are ineffective or inappropriate. (Ibid.) However, “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.” (In re Lorenza M. (1989) 212 Cal.App.3d 49, 58.) We will not disturb the juvenile court’s findings if substantial evidence supports them. (In re Jonathan T. (2008) 166 Cal.App.4th 474, 485.)
While the Juvenile Court Law contemplates a progressively restrictive and punitive series of dispositions, as appellant acknowledges, there is no absolute rule that a minor must have attempted a less restrictive placement before the juvenile court may order a DJJ commitment. (In re Ricky H. (1981) 30 Cal.3d 176, 183.) Moreover, “[t]he new provisions [of the Juvenile Court Law] recognize[] punishment as a rehabilitative tool. [Citation.] Section 202 [setting forth the purpose of the Juvenile Court Law] also shifted its emphasis from a primarily less restrictive alternative approach oriented towards the benefit of the minor to the express ‘protection and safety of the public’ [citations], where care, treatment, and guidance shall conform to the interests of public safety and protection. [Citation.]” (Michael D., supra, 188 Cal.App.3d at p. 1396.)
We have explained in the past, “if there is evidence in the record to show a consideration of less restrictive placements was before the court, the fact the judge does not state on the record his consideration of those alternatives and reasons for rejecting them will not result in a reversal.” (In re Teofilio A. (1989) 210 Cal.App.3d 571, 577.) Here, ample evidence indicates the juvenile court considered less restrictive placements. The parties specifically argued in front of the juvenile court the viability of less restrictive alternatives, including the Kern Crossroads Facility that appellant advocates here. Furthermore, the RPO discussed in detail why specific less restrictive alternatives, including the Kern Crossroads Facility, were inappropriate or would be ineffective.
The RPO thoroughly considered the facts of appellant’s case in reaching its recommendation for a DJF referral. The report expressed a number of factors considered while determining the most appropriate and suitable disposition for appellant, “including the extremely serious nature of the minor’s offense, the length of time in which the minor engaged in these sexual assaults, the fact there are multiple victims and multiple occurrences, the significant difference in the age of the minor and the victims (and consequently the significant difference in the size, weight, and intellect of the minor and his victims), the minor’s lack of remorse or regret for what he did and the minor’s complete unwillingness to accept any responsibility for what he did.” The RPO also noted appellant sexually abused his victims only when the parents were out of the home, which “indicates a certain degree of planning and deliberate care to not only ensure he would not be discovered or exposed, but also to communicate to his victims there was no one else in the home they could turn to look for safety and protection.” The appellant thus violated a position of trust as well.
In considering what disposition to recommend, the RPO noted it considered Juvenile Hall or a commitment to a local program, including the Kern Crossroads Facility, “but each was rejected as none of these options can provide the minor with the counseling and treatment targeted to the juvenile sex offender.” Although appellant notes a psychotherapist recommended the Kern Crossroads Facility, the probation officer was aware of this but “confirmed this program does not offer any certified counseling in this area.” The RPO also “considered, but ultimately rejected, ” a group home placement specific to juvenile sex offenders. The RPO then went on to explain in depth the benefits of a DJF commitment specific to appellant.
While appellant acknowledges the RPO discussed the Kern Crossroads Facility recommendation specifically, appellant mischaracterizes the RPO’s rejection of the facility as a viable option. Appellant asserts appellant was committed to the DJF solely because of an “unavailability of suitable alternatives” because the Kern Crossroads Facility did not have adequate counseling programs. The RPO, however, further noted, “the likelihood of the minor actually completing a program is in serious jeopardy due to the minor’s steadfast unwillingness to admit his responsibility for the sexual abuse.” This led the probation officer to conclude only a DJF commitment would be appropriate as it would provide a period of confinement that takes into consideration the safety and protection of the victims and the general community, while having a program already in place that specifically targets juvenile sexual abuse offenders, in addition to other programs for appellant’s education, anger management, substance abuse, and other aspects of rehabilitation.
The juvenile court made clear it spent considerable time considering appellant’s dispositional options. The court noted, “it’s not a decision reached lightly. I read [the RPO] yesterday and reread it again as [the victims’ mother] was reading her letter, which was extensively quoted in the report.” In setting forth its ruling, the juvenile court provided detailed reasons supporting its decision to commit appellant to the DJF, describing factors including both circumstances of the offense and appellant’s conduct, and the benefit the DJF could offer appellant. The court specifically discussed not only the great physical disparity between appellant and the victims, but also a number of other facts supporting a DJF commitment: “the extent of physical contact between this minor and these very young boys over a period of time”; appellant’s attempt to characterize his conduct as only one incident performed while under the influence of drugs, “as opposed to a predatory conduct … [which] it was”; appellant’s actions were “under the circumstances that he assumed would shield him from disclosure”; “consciousness of guilt in the way it was done … and that’s the underlying aspect of it”; “what the [DJF] is supposed to do in these types of cases … has an intensive rehabilitation aspect to it”; and finally noted, “I’m not even assured that the minor has accepted responsibility and hardly acknowledged his role in all of this.”
Substantial evidence supports the juvenile court’s finding that appellant could benefit from a DJF commitment and the court reasonably believed a less restrictive disposition would not be adequate to hold appellant accountable for the serious offense he committed or to provide for the safety and protection of his victims or the public. The court did not abuse its discretion in ordering appellant committed to the DJF.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Wiseman, Acting P.J., Detjen, J.