Opinion
A146788
03-09-2017
In re ADRIAN R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ADRIAN R., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J1500289)
Sixteen year old Adrian R. admitted to one count of forcible rape on 15 year old Jane Doe, in exchange for dismissal of a second rape count. Following a lengthy, and hotly contested, disposition hearing, the juvenile court committed Adrian to Division of Juvenile Facilities (DJF).
Adrian's appeal presents two claims of substantive error by the juvenile court. In Adrian's words, the juvenile court (1) "violated California law by punitively committing Adrian to [DJF] simply because he committed rape, rather than selecting a less restrictive and more rehabilitative alternative," and (2) violated Adrian and his family's "constitutional rights . . . by removing Adrian from his home absent a compelling reason for doing so." Adrian also contends the commitment form must be revised.
We conclude that neither of Adrian's substantive claims has merit. We also conclude that the procedural error can be rectified on appeal. We thus affirm, with direction to the juvenile court to amend the commitment report.
BACKGROUND
Introduction
Adrian's opening brief begins with this: "This is a date rape case in which a teenage boy, engaged in consensual sexual foreplay with a teenage girl, momentarily 'went too far.' " Then, following a statement of the case, Adrian's brief has a section entitled "Facts of the Offense." The section is one and one-half pages long, and devotes a total of 17 lines to a description of the relationship between Adrian and the victim, Jane Doe, which 17 lines include the rape itself.
California Rules of Court, rule 8.204(a)(2)(C) provides that an appellant's opening brief shall "[p]rovide a summary of the significant facts . . . ." And the leading California appellate practice guide instructs about this: "Before addressing the legal issues, your brief should accurately and fairly state the critical facts (including the evidence), free of bias; and likewise as to the applicable law. [¶] Misstatements, misrepresentations and/or material omissions of the relevant facts or law can instantly 'undo' an otherwise effective brief, waiving issues and arguments; it will certainly cast doubt on your credibility, may draw sanctions [citation], and may well cause you to lose the case!" (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2016) ¶ 9:27, p. 9-8, italics omitted.)
Adrian's brief does not measure up. The salient facts are these.
The Facts
Adrian first met Doe when they were in the second grade, when they attended the same grammar school. They apparently did not go to the same middle school, though they "dated" in the seventh grade. What that "dating" consisted of, or how long it lasted, is not in the record. They did not "keep in touch" after middle school, and did not attend the same high school. However, when Doe was a sophomore, Adrian contacted her on Facebook, sending her his profile and picture. Doe provided Adrian her telephone number, they began texting, and after some period of time, Doe agreed to meet Adrian in front of a movie theater in Concord.
Doe's mother drove her to the theater, Adrian was waiting for her, and they went to a movie and kissed while in the theater. During the movie, Adrian tried to put his hand down Doe's pants to touch her vagina. She removed his hand, testifying she was surprised because she "didn't know he would ever do that."
After the movie, they walked through a park on the way to her home, and again kissed while lying on the grass. Again, Adrian tried to touch her vagina, Doe told Adrian to stop and he did. He then walked Doe home and asked her "not to talk about it." After that, Doe said she was "confused and weirded-out" because she did not expect Adrian to be like "that" with her. And she "erased" Adrian's cell phone number from her phone.
A month or two later, Doe and her young cousin were on a bus travelling to Doe's mother's residence when Adrian repeatedly texted Doe and asked her to meet. She agreed, and they were to meet at Chuck E. Cheese.
This was the day the rape occurred.
Adrian's reply brief describes the Attorney General's brief as setting forth a "detailed, and generally accurate, summary of facts," a description with which we agree. We thus quote her description of the facts on the day in question, where Adrian is described as "appellant":
"About 2:00 p.m., Doe left her cousin at Chuck E. Cheese and got into appellant's white Ford pickup truck. He drove about 15 minutes to an isolated wooded area far from the restaurant. Appellant immediately started kissing Doe and reclined her seat until she was lying flat. Appellant moved on top of Doe while kissing her and tried to pull down her shorts. Doe held onto the belt loop on her shorts in an attempt to keep them on while she repeatedly told appellant 'No.' Appellant did not stop. Instead, he held Doe down with his knees and lay on top of her. Doe 'was kind of scared because of what he was doing.' She tried to twist away from appellant and open the door to get out of the truck, but was not able to do so. However, while trying to open the door, Doe let go of her shorts, which appellant pulled down.
"Doe said that she 'felt threatened' when she felt appellant's erect penis touch her leg. Until that moment, she 'didn't know he had it out' of his pants. Appellant pressed his knees on Doe's legs and held her arms while he inserted his penis in her vagina. Doe kept saying, 'No, no.' Appellant told Doe, 'Believe me . . . nothing is going to happen.' Appellant also told Doe 'that if I kept on moving that he would come in me.' She lay still because she was afraid of getting pregnant. After two thrusts, appellant got off Doe and she pulled up her shorts. Appellant drove Doe back to Chuck E. Cheese and said 'sorry.'
"Doe said that as a result of appellant's assault she had bruises on her arms and legs. She did not sleep well for over a month. Appellant contacted her on Facebook and asked to see her, but she declined because, as she wrote to him, she 'could not trust him ever again.' Appellant replied that he had 'changed,' and 'swore it on his mom's life.' "
Over the ensuing months Adrian attempted to contact Doe via text message. She felt she could not trust him, and refused.
After school resumed, Doe was looking at some photographs on social media with two friends, Yesenia and Gerardo. Gerardo showed Doe a photograph of Adrian's brother, a picture that showed Adrian in the background. Doe began to cry. Her friends asked her why, and she said it was because Adrian raped her. Yesenia persuaded Doe to report the incident to her school counselor, and they went together to the counselor's office. Yesenia initially reported the rape, and Doe confirmed it.
Doe later talked to two police officers, and Adrian was arrested.
The Proceedings Below
On March 5, 2015, the Contra Costa County District Attorney filed a wardship petition (Welf. & Inst. Code, § 602(a)) alleging that Adrian, age 16, committed two counts of forcible rape. (Pen. Code, § 261, subd. (a)(2).) The petition alleged that both counts occurred in June or July, 2014.
All undesignated statutory references are to this code.
Adrian filed a motion to suppress evidence. The juvenile court ruled that the suppression hearing would be incorporated into the jurisdictional hearing, and the combined hearing began on August 11, 2015. The prosecution presented brief testimony of the arresting officer. This was followed by lengthy testimony of Doe, whose direct testimony concluded late that day. Cross-examination began, but the matter recessed for the day, to resume at 1:30 p.m. on August 12.
Doe's testimony would not be completed, as before the testimony resumed, Adrian entered into an agreement to admit one count of forcible rape in exchange for dismissal of the second rape count and a maximum commitment of 11 years.
The dispositional hearing began on September 18, against the background that Probation Officer Paul Nicolosi had prepared a comprehensive 26-page report that described in detail Adrian's background, much of it in favorable terms. For example, Adrian had no criminal record prior to the rape, no history of misconduct in school, did not abuse drugs or alcohol, and did not associate with any gang. The report said Adrian had a close relationship with his parents, both of whom were employed. In fact, Adrian at times helped his mother in her job (cleaning houses) and his father in his (building fences).
Concerning school, Adrian had a learning disability that required an individualized educational program (IEP), which IEP had been updated on March 31, 2015. Adrian had performed well during his six months attending the high school in juvenile hall, where he earned a 3.5 GPA. By contrast, at his public school he had mostly D's and F's, with a 1.95 GPA. Adrian acknowledged attempting to commit suicide on the day he was detained in juvenile hall in this case because he was "ashamed" of himself; otherwise he had no mental health issues.
The report addressed possible recidivism, reporting that on the "juvenile sexual offense recidivism risk assessment tool" test (JSORRAT) Adrian tested at "1-3," the low to moderate range of risk for committing another sexual offense.
Adrian's relationship with the probation department was positive, summarized as follows: "[Staff] reported that the minor has been adjusting exceptionally well in all respects since his arrival. They say that he has been consistently following unit rules, obeying staff directions, getting along with other wards, demonstrating a respectful attitude, and performing well in school. Due to his ongoing excellent adjustment, staff advise that the minor has maintained 'Level One' behavioral status through most of his stay, and is usually a unit worker every week. They describe him as 'one of the best kids on the unit.' "
As to possible placements, Adrian had been screened for both Orin Allen Youth Rehabilitation Facility (OAYRF) and the Youthful Offender Treatment Program (YOTP), and had been rejected at both, as neither facility had a juvenile sex offender program. Adrian was screened and found eligible for DJF. There, Adrian would be a "Category 3" ward, meaning he would be considered for release after spending a minimum of three years in the "juvenile sex offender treatment" (JSOT) program, or until he turned 23. His treatment plan would involve completing the JSOT program, receiving individual and group counseling, earning his high school diploma, attending college courses and/or vocational training, and learning independent living skills.
Concerning the crime itself, the report noted that Adrian acknowledged raping Doe, simply to "know what it felt like," and that he knew that Doe did not want to have sex with him.
Following all that, the report concluded: "[T]hrough the close supervision and intervention afforded by the juvenile court the minor will receive the appropriate corrective services necessary to help him address and hopefully overcome his problems. . . . [T]he minor should remain out of the community for an additional period of time, so he can receive the necessary help . . . without risk of his reoffending." "Keeping the minor in custody will also serve to hold him duly accountable for his serious criminal conduct . . . .
"Considering the nature and gravity of the minor's present offense, and given that he has been rejected for all less restrictive county-based correctional programs, it is probation's opinion that the most appropriate residential rehabilitative course of action for him is commitment to [DJF]. [¶] While at [DJF], the minor will be in a highly structured and disciplined environment, where the values of accountability and personal responsibility are constantly being reinforced. He will also be removed from general society for a more than moderate period of time, thereby safeguarding the community from potential further sexually assaultive conduct on his part while affording him the much needed corrective intervention."
On September 18, ten days before the dispositional hearing, Adrian's attorney filed an objection to the disposition report, among other things requesting that Adrian be placed on home probation to attend either A Step Forward or the South San Francisco Youth Service Bureau programs. In claimed support, the objection included several attachments, two of which were psychological evaluations, one by Dr. John Peters, a private practitioner in Fairfield and Albany, the other by Dr. Kimberly Dickson of A Step Forward. Alternatively, the objection proposed that if a residential treatment were necessary, Adrian be placed at either Oakendell in San Andreas, Children's Home of Stockton, Gateway in Sacramento, Promesa in Fresno, or Rancho San Antonio, going on to acknowledge that none of his proposed placements had actually accepted Adrian. One other attachment was the result of a polygraph test on April 25, 2015.
The polygraph test report was a three-page letter by the polygraph examiner that concluded there was "no deception indicated" when Adrian answered that there was not "even one known lie" "in the statement [he] wrote today," which was attached. The statement read in its entirety as follows:
"Sometime last June or July, I went to Castle Rock Park with my friend [Doe]. We were in my car began kissing and making out. She took her hand and put it inside my pants and began to grab my penis and jerking off.
"At no time did I force or guied [sic] he[r] hand into my penis.
"She continued to do this for 30 seconds.
"This is a true statement."
The Attorney General describes this statement as one in which Adrian "implied that Doe had initiated her rape" by masturbating Adrian's penis. Adrian's reply takes issue with this, and responds as follows: "According to Respondent, appellant essentially blamed the victim when he implied that she had, in essence 'asked for it,' by 'masturbat[ing] his penis.' As reflected in the record on appeal, Adrian never said that the victim 'asked for it.' These are Respondent's words, injected into the appeal in service of political diatribe. In reality, the testimony concerning Jane caressing Adrian's penis was introduced by Adrian's trial counsel to offer some factual context for Adrian's loss of control, and not to blame Jane for what happened."
We observe only that no such "testimony" was introduced; that the statement is hardly a complete version of what happened on the day of the rape; and that Doe's testimony made no reference to this, and she was not asked about it on crossexamination.
The dispositional hearing was held on September 18. Adrian called Dr. Peters, who practiced clinical psychology in Solano County. The essence of Dr. Peters's testimony was that the best rehabilitative option was for Adrian to remain in his positive home environment while receiving outpatient treatment at the Step Forward program. Step Forward, he said, was an excellent juvenile sex offender treatment program because they have "serious docs" with a great deal of experience. Adrian was, in Dr. Peters's opinion, "very treatable" in an outpatient setting like Step Forward because he's "very naïve" and the "opposite of the sociopath." However, he also described Adrian as a "sexually-repressed offender," i.e., one who places the blame for the offense on external forces outside their consciousness, namely, the victim. As to DJF, Dr. Peters said that its literature indicated its JSOT program was for "higher-risk offenders."
Dr. Peters was followed by Probation Officer Nicolosi, who testified he did not contact any of the home placement services proposed by Adrian. Instead, he followed the "standard screening procedure," including that he advised all parties who screened Adrian for potential programs—Mr. Waters at DJF and Elvin Baddley at OAYRF—that Adrian was a special education student. He also provided them Adrian's updated IEP. Nicolosi said Waters made the preliminary assessment whether a minor should be screened for out-of-home placement providers, i.e., whether the minor is "appropriate" for such placement. And even if the minor is "technically eligible," if Waters concludes that the minor is "inappropriate," then the process for an out-of-home placement "stops there." Nicolosi said that Waters's conclusion that Adrian was not amenable for home placement was due to the "serious nature of the offense," i.e., the forcible rape.
Nicolosi also provided the juvenile court with a five-page summary of the JSOT program at DJF; and another probation officer provided information about the JSORRAT. The court admitted both items in evidence.
At the conclusion of the hearing, the juvenile court said it "would like to . . . hear from DJJ and hear about their programs at DJJ." And the court continued the matter to October 2.
On October 2 the juvenile court heard lengthy testimony from Anastasia Park, the senior psychologist supervisor at DJF and the coordinator of the sex behavior treatment program (SBTP) there. Park testified that she oversaw the JSOT programs, which included youth placement, entrance and exit criteria, and assessments in treatment program designations. Specifically as to the initial placement, Park said the JSOT program has two components: the orientation unit and the residential unit. The orientation unit consists of an eight to ten week program where the minor undergoes a comprehensive assessment by the treatment team. Based on that information, the treatment team devises a comprehensive individualized treatment plan and determines where to house the minor.
Actually, Park referred to DJF's sex offender program as the "sex behavior treatment program." For consistency with the juvenile court and the briefing, we use the abbreviation "JSOT."
As to housing, Park testified minors in the JSOT program are housed separately from the other wards at DJF. Currently, there are three separate living units for the 75 wards presently designated for the JSOT program at the Northern California Youth Correctional Center in Stockton. They are housed based on their age, risk level, and individualized treatment plan. Minors in the JSOT program are kept entirely separate from the general population, even after completing their program.
The therapeutic services provided in the JSOT program are presented in "seven stages," and are "designed to be completed in 18 months." The stages include 180 minutes of group therapy each week, 120 minutes of individual therapy in school each month, and attendance at resource groups each week. The wards have 30 minutes with a caseworker each week and one hour each week in large group led by a youth correction counselor regarding specific treatments and social skills. Wards are also given the opportunity to grow fruits and vegetables, and to participate in a book club.
Park testified that wards at DJF may also participate in weekly family counseling if they and their family desire. If the family is unable to travel to Stockton, the counseling may be conducted by telephone. Wards are permitted two 30-minute phone calls home each week. And DJF has family nights twice each year where the families are informed about the program and can speak with the minor's treatment team.
Following completion of Park's testimony, the prosecutor read Doe's victim impact statement. The court then heard from the attorneys. The prosecutor spoke for less than a page in the transcript. Adrian's attorney spoke for six pages. His remarks included his acknowledgment "we have a serious charge and that [Doe was] affected by this incident [and] has suffered from it," though going on to argue that Doe's testimony about the crime and her impact statement was "based on . . . half-truths, omissions, exaggerations." There was, he said, no valid basis for probation's recommendation of DJF, that the defense experts supported the request for home probation, and for the court to do otherwise "would be in conflict with" those experts.
Following that, the court rendered its decision, concluding that Adrian be committed to DJF. The court explained its holding in detail for over four pages, an explanation that included the following:
"The court has read the report dated September the 10th, 2015, and this case has been vigorously litigated. [Defense counsel] has done . . . all that . . . is possible to do, . . . but the facts are really stubborn things. And the facts of this case are this victim was raped by this minor, and there's some other facts that are pretty stubborn, as well.
"The probation department has not recommended the ranch, YOTP, or placement. There are no [JSOT] services at YOTP or the ranch, and there's no security at placement. Obviously, someone who is a rapist, which Adrian is, is someone who poses a danger to the community. [¶] As noted in the report, this is a violent sexual offense. It is a [section] 707(b) offense. And the facts that came out through the victim's testimony . . . include . . . that she . . . had bruising to her legs, she felt pain in her arms, her shoulders and her elbows, she had bruising to her arms. The defendant, when contacted, did confess to the police. He said that he wanted to see how it felt. He admitted to intending to rape her. And, . . . that's really the case in a nutshell with regard to the facts of the offense.
"With regard to the investigation by the defense that's been referred to in the victim impact statement, I'm not holding that against the defendant. If it's true, I wouldn't hold it against him. It would be unfortunate, but I think sometimes any type of questioning, any kind of embarrassment, . . . is something that's upsetting, but absent Adrian directing something to happen like that, that would be unfair. I'm not holding that against him. I don't find that it is true. I do find that she's . . . been very upset about the whole proceeding.
"The option of home supervision and an outpatient program is not appropriate. Home supervision is like electronic [monitoring]. The court has to consider the safety of the community. That's one of the problems with the placement is that there isn't . . . a locked facility. The defendant needs to be in a locked facility.
"Dr. Peters didn't really even know anything about [DJF], and that's why the testimony by Ms. Park was presented to describe all of the treatment programs that they have at [DJF]. And the court is impressed with what they have at [DJF].
"The court also finds that it is in the best interest of the minor that he go to [DJF], and it's also in the . . . safety of the community. [¶] The court has the authority to impose ten years, five months, and one day of custody time as of today. [¶] His welfare does require that he be adjudged an indefinite ward of the court. [¶] His welfare requires that custody be removed from his parents pursuant to [section] 726(a)(3) . . . . [¶] It's ordered that the minor be committed to [DJF] for a maximum term of 11 years. Credits to be given to the minor for 210 days already served in custody. [¶] . . . [¶]
"The local resources are inappropriate in the rehabilitation of the minor. [¶] The mental and physical conditions and qualifications of the minor are such as to render it probable that he will be benefitted by the reformatory educational discipline or other treatment provided by [DJF]. [¶] . . . [¶] The court also finds that the minor has exceptional educational needs and an active [IEP]."
Following that lengthy explanation, the juvenile court adjudged Adrian a ward of the court and committed him to DJF for the maximum potential term of 11 years, with credit for 210 days served. On October 30, the court amended the disposition order to show that the maximum custody time was eight years, and that the court had read and considered the social study and defense statements.
The original commitment order provided: "8. Confinement period: [¶] a. The maximum period of confinement is . . . 11 years-0 months." On November 4, 2015, an amended commitment order clarified the maximum term of confinement: "8. Confinement period: [¶] a. The maximum period of confinement is . . . 8 years-0 months."
Meanwhile, on October 30, Adrian filed a notice of appeal.
DISCUSSION
Applicable Law: The Statutory Framework
"The purpose of juvenile delinquency laws is twofold: (1) to serve the 'best interests' of the delinquent ward by providing care, treatment, and guidance to rehabilitate the ward and 'enable him or her to be a law-abiding and productive member of his or her family and the community,' and (2) to 'provide for the protection and safety of the public . . . .' " (In re Charles G. (2004) 115 Cal.App.4th 608, 614-615, quoting § 202, subds. (a), (b) & (d).) Section 202 was amended in 1984 to shift "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.' " (In re Michael D. (1987) 188 Cal.App.3d 1392, 1396 (Michael D.); see also In re Javier R. (1984) 159 Cal.App.3d 913, 958.) While greater emphasis has been placed on "punishment for rehabilitative purposes and on a restrictive commitment as a means of protecting the public safety," commitment to DJF cannot be based exclusively on retribution. (Michael D., supra, 188 Cal.App.3d at p. 1396.) At disposition, the juvenile court must act consistently with these purposes. (In re Schmidt (2006) 143 Cal.App.4th 694, 716.)
In order to commit a minor to the DJF, "there must be evidence in the record demonstrating both a probable benefit to the minor by a [DJF] commitment and the inappropriateness or ineffectiveness of less restrictive alternatives." (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396; accord, In re George M. (1993) 14 Cal.App.4th 376, 379; Michael D., supra, 188 Cal.App.3d at p. 1396; see also § 734 ["No 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 [or she] will be benefited by the reformatory educational discipline or other treatment provided by the [DJF]."].)
In making its dispositional order, the court must "consider 'the broadest range of information' in determining how best to rehabilitate a minor and afford him adequate care." (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329 (Robert H.), quoting In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684.) In addition to any other relevant and material evidence, the court should also consider "(1) the age of the minor, (2) the circumstances and gravity of the offense committed by the minor, and (3) the minor's previous delinquent history." (§ 725.5.)
Applicable Law: Standard of Review
We review the juvenile court's decision to commit defendant to the DJF for abuse of discretion. (Robert H., supra, 96 Cal.App.4th at pp. 1329-1330; In re Asean D. (1993) 14 Cal.App.4th 467, 473; see also In re Emmanuel R. (2001) 94 Cal.App.4th 452, 465 [" ' " 'The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.' " ' "].) "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." (Michael D., supra, 188 Cal.App.3d at p. 1395; accord, Robert H., supra, 96 Cal.App.4th at pp. 1329-1330; In re Asean D., supra, 14 Cal.App.4th at p. 473.) Substantial evidence is " 'evidence which is reasonable, credible, and of solid value . . . .' " (In re Paul C. (1990) 221 Cal.App.3d 43, 52.)
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. These purposes include (1) "the protection and safety of the public," and (2) "care, treatment, and guidance that is consistent with [the minor's] best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances[, which] may include punishment that is consistent with the rehabilitative objectives of [the juvenile court law]." (§ 202, subds. (a), (b).)
We conclude that the juvenile court acted in conformance with the above standards, and that Adrian's commitment to the DJF did not constitute an abuse of discretion.
The Commitment to DJF is Supported by the Record
Introduction to the Analysis
As indicated, Adrian first contends that the juvenile court violated California law by "punitively committing Adrian to [DJF] simply because he committed rape, rather than selecting a less restrictive and more rehabilitative alternative." The argument begins by asserting that "the juvenile court violated California law by committing Adrian to [DJF] as a knee-jerk reaction to the finding that he committed forcible rape, rather than fully considering the particulars of the offense and the offender, and then selecting the least restrictive option likely to rehabilitate Adrian." Or, as the opening brief later describes it, "the juvenile court in this case objectified Adrian by reducing him to a label. The court called Adrian 'a rapist.' The juvenile court then proceeded from this label to the completely unwarranted assumption that Adrian belonged in a locked facility, by stating, 'Obviously someone who is a rapist, which Adrian is, is someone who poses a danger to the community.' " Adrian's reply brief continues in the same vein, asserting, for example, that the commitment was "solely because" Adrian was convicted of forcible rape, and that the juvenile court "reduc[ed] Adrian to a one-word label consisting of his offense."
Such hyperbole is misplaced—there was much more to it than that. And no abuse of discretion.
No Abuse of Discretion
We do begin with the gravity of the offense, as it is "by statute a proper consideration at disposition [(§ 725.5)]." (Robert H., supra, 96 Cal.App.4th at p. 1330.) Here, the offense was forcible rape, an " 'act of sexual intercourse accomplished with a person not the spouse of the perpetrator . . . [¶] . . . [¶] (2) [w]here it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.' (Pen. Code, §261, subd. (a)(2).)" (People v. Griffin (2004) 33 Cal.4th 1015, 1022.)
Adrian told the police that he raped Doe, a childhood friend, simply "to know what it felt like." He acknowledged that he knew that Doe did not want to have sex with him, and thus he pinned her down to rape her. Adrian only admitted his conduct after being confronted with Doe's graphic—and uncontradicted—testimony that she repeatedly told him "No," tried to open the door to escape, became truly afraid when she realized he had exposed his penis, and suffered extensive bruising to her arms and legs from the forcible rape. Even Adrian's expert Dr. Peters acknowledged that Adrian was the type of sex offender who blamed his victim, i.e., a "sexually-repressed offender."
Moreover, while Adrian had no prior criminal record, his admission that he forcibly raped a friend merely to see "how it felt" established that he was a danger to the public—not to mention in need of an long term JSOT program to address his violent conduct. The record as a whole confirmed the probation recommendation, adopted by the court, that Adrian needed the "secure setting to address his violent sexual nature to ensure the safety of the community." (See In re Jonathan T. (2008) 166 Cal.App.4th 474, 486 ["it is not merely the programs at [DJF] which provide a benefit to minor, but the secure setting as well"].) As indicated, section 202, subdivision (b) "now recognizes punishment as a rehabilitative tool and emphasizes the protection and safety of the public." (In re Lorenza M. (1989) 212 Cal.App.3d 49, 57.
Furthermore, the focus of the juvenile court was to commit Adrian to the place where he would most benefit, a decision, it will be recalled, that the juvenile court postponed making until it heard specifically about DJF and what it offered. Only then did the juvenile court rule, concluding that DJF could provide the three-year JSOT program to meet Adrian's rehabilitative needs while also providing the secure environment that would protect the public. It was reasonable for the court to conclude that, given Adrian's age, the violence of his offense, and his rejection from OAYRF and YOTP, it would be difficult, if not impossible, to place him in any alternative setting that could equal the security and long term JSOT program provided by DJF.
One last observation is apt, this in response to Adrian's assertion that DJF "was not a good option because Adrian would receive only eighteen months of sex offender treatment there, and would spend the balance of his incarceration in contact with murderers, gang members, stabbers, shooters, and thieves, who would subject Adrian to peer contagion, when they were not ridiculing him or physically attacking him for being a sex offender." Not only is Adrian's statement unsupported by record reference, it is directly contrary to Park's undisputed testimony that wards in the JSOT program are segregated from the general population, segregation that continues even after the ward completes the program.
In short, Adrian's claim that he was committed to DJF solely because of his crime is not supported by the record. The commitment was also based on Adrian's—and the community's—need that he be in a secure setting, and because of his need for a JSOT program, a probable benefit to Adrian.
In making its dispositional order, the juvenile court must "consider 'the broadest range of information' in determining how best to rehabilitate a minor and afford him adequate care." (Robert H., supra, 96 Cal.App.4th at p. 1329, quoting In re Jimmy P., supra, 50 Cal.App.4th 1679, 1684.) The rehabilitative purposes of a DJF commitment are satisfied when there is (1) evidence in the record demonstrating probable benefit to the minor, and (2) evidence supporting a determination that less restrictive alternatives are ineffective or inappropriate. (§ 734; In re Pedro M. (2000) 81 Cal.App.4th 550, 555-556.) As the Supreme Court observed in In re Greg F. (2012) 55 Cal.4th 393, 417 "A DJF commitment is not necessarily contrary to a minor's welfare. . . . [Citations.] Some wards, like the minor here, may be best served by the structured institutional environment and special programs available only at the DJF." That describes the situation here.
No Denial of Due Process
Adrian's other substantive argument is that "the juvenile court violated the constitutional rights of Adrian and his family by removing Adrian from his home absent a compelling reason for doing so." The argument begins by citation to several United States Supreme Court and federal circuit court cases that have nothing to do with the commitment of a minor. Following those citations, the argument runs as follows:
The cases cited include Moore v. City of East Cleveland, Ohio (1977) 431 U.S. 494 [municipal ordinance could not prohibit grandmother from living with two grandsons]; United States v. Wolf Child (9th Cir. 2012) 699 F.3d 1082 [paroled adult sex offender not barred from living with his own children]; United States v. Napulou (9th Cir. 2010) 593 F.3d 1041 [former adult prison inmates could associate]; and United States v. Lonjose (10th Cir. 2011) 663 F.3d 1292 [paroled adult sex offender not barred from contact with son].
"Broadly speaking, California's Welfare and Institutions Code reflects the foregoing federal constitutional principles. Welfare and Institutions Code section 202, subdivision (a) states that the 'purpose of this chapter is to provide for the safety and protection of the public and each minor under the jurisdiction of the juvenile court and to preserve and strengthen the minor's family ties whenever possible, removing the minor from the custody of his or her parents only when necessary for his or her welfare, or for the safety and protection of the public.' Welfare and Institutions Code section 726 similarly provides that a ward may not be taken from the physical custody of a parent absent a showing that the parent cannot care for the child, the child has failed on probation, or the welfare of the child requires that custody be taken from the parent. In interpreting these statutes, California courts should bear firmly in mind the federal constitutional principles upon which the statutes are based.
"Thus, in summary, before a California juvenile court may commit a minor to DJJ, there must not only be evidence that the minor will benefit from DJJ, and that less restrictive alternatives are inappropriate; there must also be a showing of compelling necessity for disrupting the family's constitutional right to live as a family.
"Because the right of familial association is a constitutional right, its violation is deemed reversible error unless the prosecution can prove that the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.)"
The Attorney General argues the issue was forfeited, because Adrian did not assert the claim below. Adrian disagrees, arguing that there is no forfeiture where "a claim of error, raised for the first time on appeal, merely 'places a new constitutional gloss on claims preserved below.' [Citations.] Such is what happened here. Trial defense counsel argued that Adrian should not be separated from his family. Appellant's Opening Brief merely placed a constitutional gloss on that argument. Indeed, every contested juvenile court hearing, where out-of-home placement is considered, implicates the constitutional right of familial association."
We need not address the forfeiture issue, as we fundamentally agree with Adrian that every juvenile hearing that ends with out of home placement necessarily involves his being removed from the home. Put otherwise, we understand that the analysis must be as it is on any out of home commitment case, to be assessed under the principles described above. In any event, Adrian demonstrates no due process violations.
"[D]ue process then requires only that the [juvenile] court properly consider all factors relevant to its dispositional choice." (In re Romeo C. (1995) 33 Cal.App.4th 1838, 1848.) And as to the family ties, it is true that the authorities recognize the importance of family, and the preservation and strengthening of the minor's family ties whenever possible. However, as we noted in In re James R. (2007) 153 Cal.App.4th 413, 434, that interest may be limited on the basis of other compelling interests, "such as the protection and safety of the public, the rehabilitation of the delinquent minor, and the minor's 'best interests' in receiving the type of care that would 'enable him . . . to be a law-abiding and productive member of his . . . family and community.' " As shown above, these compelling interests are present here.
No Remand is Necessary
Adrian's final argument is that there are two "obvious defects . . . apparent on the face" of Judicial Council form JV-732: (1) the form shows the same eight-year term for the maximum term of commitment (MTC), and for the maximum term of physical confinement, but no credits were awarded for the time served in juvenile hall; and (2) the court failed to check box 8(b) as required by section 731, subdivision (c).
As to the credits, the disposition report of September 10, 2015 indicated that Adrian's "aggregate custody time" was "11 years," that Adrian had been detained in juvenile hall for 192 days, and thus his custody time remaining was "10 years, 5 months, and 18 days." The commitment order of October 2 stated the MTC was "11 years," with credit as of September 18 for "200" "days in custody," resulting in a "total confinement time" of 10 years, five months, 10 days. And at the dispositional hearing, the court orally stated that Adrian was afforded credit for 210 days served.
As mentioned above, the original JV-732 form states the MTC is "11 years-0 months," "8. Confinement period: [¶] a. The maximum period of confinement is . . . 11 years-0 months." On October 30, 2015, at a placement review hearing, the minute order reflects the following handwritten comment: "In consideration from [sic] letter from [DJF], the Court amends disposition to state maximum custody time is 8 years." And November 4, an amended commitment order was filed stating: "8. Confinement period: [¶] a. The maximum period of confinement is . . . 8 years-0 months." Neither the original commitment order nor that of November 4 has a check mark in the box at line "8.b.," which states, "The court has considered the individual facts and circumstances of the case in determining the maximum period of confinement."
As to credits, the Attorney General asserts: that the court's oral pronouncement at the dispositional hearing said that Adrian "had 210 days served. (RT 272.) It is understood that upon Adrian's actual transfer to DJF, his total credits earned will be calculated and applied to his MTC. [Adrian] does not dispute the court's calculation—which was based on the unchallenged calculation in the disposition report—or raise any claim of error regarding his credits. He simply wants the Judicial Council form amended."
As to the failure to check box 8(b), Adrian asserts that the juvenile court is required to acknowledge and record its exercise of section 731 subd. (c) discretion by setting a maximum term of confinement for the minor in light of the facts of the individual case. Citing In re Julian R. (2009) 47 Cal.4th 487, Adrian argues that the purpose of line 8 is to ensure that juvenile courts are aware of their section 731 subd. (c) discretion, exercise such discretion, and never leave the appellate court in doubt as to whether discretion was exercised. And, Adrian goes on, the juvenile court's failure to check box 8(b) on the Judicial Council form establishes that the court did not consider the facts and circumstances of his case, such that it did not understand or exercise its discretion to impose less than the MTC. We disagree. And Julian R. is not availing.
"A ward committed to the [DJF] may not be held in physical confinement for a period of time in excess of the maximum period of imprisonment that could be imposed upon an adult convicted of the offense or offenses that brought or continued the minor under the jurisdiction of the juvenile court. A ward committed to the [DJF] also may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter or matters that brought or continued the ward under the jurisdiction of the juvenile court, which may not exceed the maximum period of adult confinement as determined pursuant to this section." --------
In Julian R. the minor claimed that because the record was silent, the juvenile court must have failed to consider the " 'facts and circumstances' " of his crimes which could have resulted in setting a lower maximum term of confinement. (In re Julian R., supra, 47 Cal.4th at p. 498.) The Supreme Court rejected the argument, essentially relying on the presumption that the court is to presume that the juvenile court performed its duty to consider the facts and circumstances of an individual minor's case when setting the MTC. (Id. at pp. 492, 498-499.)
Unless Adrian offers evidence overcoming this presumption by a preponderance of evidence, the presumption applies here. (Evid. Code, §§ 115, 600, et seq.) He has not.
As shown above, the record shows that the juvenile court was aware of its discretion to impose less than the fullest possible term of confinement, especially given the amended commitment order that reduced Adrian's MTC from 11 years to eight years. The court's familiarity with the record in this case, including the evidence presented at the jurisdictional hearing and contested dispositional hearing, overcomes any inference of a failure to check box 8(b). In short, we conclude that the failure to check box 8(b) is an inadvertent omission rather than a judicial officer's misapplication of the law, more in the nature of ministerial error than judicial error. (People v. Mitchell (2001) 26 Cal.4th 181, 185; Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 750, fn. 8; Pen. Code, § 1260.)
The parties spend much time in the briefs on the issue of whether these matters require or justify a formal "remand" to the juvenile court. We think it much simpler to order preparation of a new order of commitment. In the course of preparing that document, the MTC will be specified as eight years and zero months, the number of custody credits will be shown as 210, and box 8(b) can be checked if that reflects the juvenile court's exercise of its discretion pursuant to section 731.
DISPOSITION
The juvenile court is directed to prepare an amended order of commitment (Judicial Council form JV-732) in accordance with this opinion, and to forward a certified copy to the Division of Juvenile Facilities of the Department of Juvenile Justice. The order of commitment is affirmed in all other respects.
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Miller, J.