Opinion
A131530
08-19-2011
In re B.C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. B.C., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County Super. Ct. No. 36780J)
B.C. (appellant) appeals from a dispositional order placing him in a residential treatment program after he admitted he willfully, unlawfully, and lewdly committed a lewd or lascivious act upon a child under the age of 14 (Pen. Code, § 288, subd. (a), count 1). Appellant's counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, and requests that we conduct an independent review of the record. Appellant was informed of his right to file a supplemental brief and did not file such a brief. Having independently reviewed the record, we conclude there are no issues that require further briefing, and affirm the order.
All further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On January 5, 2011, the Sonoma County district attorney's office filed a juvenile wardship petition alleging appellant willfully, unlawfully, and lewdly committed a lewd or lascivious act upon a child under the age of 14 on January 3, 2011 (§ 288, subd. (a), count 1), unlawfully participated in an act of sodomy with a child under the age of 18 (§ 286, subd. (b)(1), count 2), unlawfully participated in an act of oral copulation with a child under the age of 18 (§ 288a, subd. (b)(1), count 3), willfully, unlawfully, and lewdly committed a lewd and lascivious act upon a child under the age of 14 from October 1, 2008, through February 1, 2009 (§ 288, subd. (a), count 4), and unlawfully engaged in three and more acts of "substantial sexual conduct" and three and more lewd and lascivious acts from October 1, 2008, through January 3, 2011, with a child under the age of 14 while he resided with, and had recurring access, to the child (§ 288.5, subd. (a), count 5).
According to the probation report, appellant's father stopped by his house at about 10 a.m. on January 3, 2011, to check on two of his children—16-year-old appellant and 11-year-old L.C. When he heard a noise coming from appellant's room, he entered and found L.C. naked and crying near the closet and appellant naked under the covers. He yelled at appellant, slapped him across the face, and removed L.C. from the bedroom. L.C. said that appellant "had touched her private area." Appellant's father had L.C.'s aunt pick her up and take her to the aunt's house, instructed appellant to stay in his room, and went to the police department to report the incident. Police officers responded to the house but did not find appellant there; later, they found him walking with a friend and transported him to the police department.
L.C. reported that appellant began molesting her when she was about nine years old. He would "put his hand [and mouth] on her vagina" when they were alone and also tried to "put his penis into her mouth. . . [and] anus." He "punched and slapped her" as his way of coercing her not to tell anyone. She told appellant to stop and that "it really hurts" but he did not stop. On January 3, 2011, appellant "touched her vagina with his penis, but only on the outside," "mov[ed] it back and forth," "made her lie on top of him as he touched her buttocks . . . and licked her breasts," "told her she 'better do it' when he grabbed her hand and placed it on his penis . . . [and] made her hand go 'up and down' on his penis." Appellant pushed her off his bed and hid when their father came home. An examination revealed there was a small cut in L.C.'s vagina that appeared to be healing.
Appellant said during a police interview that L.C. came into his room that morning and touched him. He said "he forgot about everything and responded to her in the way he normally would." He touched his sister and they took their pants off. He regretted what he did but stated, "There was no penetration of the penis to the vagina, so it wasn't rape." He said that L.C. "came on to him most of the time" but that he was not going to blame her because he could have said "no." He eventually acknowledged engaging in many of the acts L.C. had described and said he did not tell anyone what was going on because he did not want his sister to get into trouble. He estimated he molested L.C. approximately eight times over a one year period. He denied threatening, hitting or slapping L.C. to prevent her from telling someone about the molestation.
Appellant's parents said it was "relatively rare" for appellant and L.C. to be home alone and "thought that perhaps they may have believed their older son was home [with appellant and L.C.] when in fact he was not." They wanted appellant to "get the help he needs" but also wanted him to come home. Appellant's aunt and uncle were prepared to accept him into their home. The parents acknowledged appellant was not doing well in school because he did not study and did not complete assignments. They believed his experience in juvenile hall had changed him and that he had realized, "I can do so much better than that."
A screening committee reviewed appellant's case and determined that the most appropriate placement was in a residential treatment program. The committee noted that the crime was serious, appellant was not taking responsibility for his actions, and the parents appeared to be in denial about the seriousness of what had occurred, as their main focus was to have appellant home as soon as possible, despite the fact that the victim, L.C., was still living there. The committee considered having appellant placed with his aunt and uncle but felt that neither he nor L.C. could begin to rehabilitate if appellant was living in the community. A court ordered psychological evaluation found there was a low risk of reoccurrence of sexual abuse and that community placement would be suitable under certain conditions. The probation report concluded, "this department believes [appellant] needs to successfully complete a residential sex offender treatment program, before returning to the community."
On February 10, 2011, appellant admitted the first count (§ 288, subd. (a) [lewd or lascivious act upon a child under the age of 14]) and the remaining counts were dismissed. The parties agreed the court would be allowed to consider all of the circumstances relating to all of the allegations for disposition purposes. At the dispositional hearing, the court found appellant's parents were incapable of providing proper maintenance, training and education of appellant and that his welfare required that he be placed outside of their physical custody. The court expressed concern that the parents had tried to establish communications between appellant and L.C. while the case was pending. The parents were also unrealistic in assessing the time needed for appellant and L.C. to recover and appeared to believe appellant had changed and was ready to come home after just a few weeks in juvenile hall. The court found the psychological evaluation was not persuasive because it referred to a single incident of sexual molestation rather than an ongoing series of incidents. The court removed appellant from his parents' physical custody and placed him under the supervision of the probation department for placement in a residential treatment program. It ordered appellant to submit to warrantless searches and random chemical testing, abstain from alcohol and not possess any weapons, and to have no contact with L.C. until approved. It also ordered that he provide a DNA sample and undergo HIV testing.
DISCUSSION
The record shows appellant voluntarily and knowingly entered his plea. The juvenile court did not abuse its discretion in placing appellant in a residential treatment program. Appellant was adequately represented by counsel at every stage of the proceedings. He has been competently represented by counsel in this appeal. We have reviewed the "entire record in this case and have found no arguable issues therein." (See People v. Wende, supra, 25 Cal.3d at p. 443.)
DISPOSITION
The dispositional order is affirmed.
McGuiness, P.J. We concur: Siggins, J. Jenkins, J.