Opinion
A128905
06-13-2012
In re ISAAC D., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ISAAC D., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J10-00138)
Fifteen-year-old Isaac D. was declared a ward of the court under Welfare and Institutions Code section 602 based on his alleged commission of a lewd act upon Jane Doe, a three-year-old girl. (Pen. Code, § 288, subd. (a).) He contends the admission of prior statements of the young victim, who was found incompetent to testify, violated section 1360 of the Evidence Code and his Fourteenth Amendment right to due process. He also claims the court abused its discretion by placing him out-of-home in a residential facility offering a sex offender treatment program.
Statutory references are to the Evidence Code unless otherwise indicated.
We conclude Doe's prior statements were reliable enough to meet the standard of admissibility under section 1360, subdivision (a)(2), and the requirements of due process. We also conclude there was no abuse of discretion in the disposition. We thus affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On January 19, 2010, three-year-old Jane Doe and her mother, C.B., were visiting at the home of the mother's friend, Marissa C. Marissa's three-year-old son, M. C., was also at the home. At about 2:30 p.m., when the two children fell asleep, C.B. and Marissa decided to run some errands, leaving the children in the care of Marissa's mother, who also lived there. Also at home was Marissa's fifteen-year-old brother, Isaac D., who had moved into the house about a month earlier.
Jane Doe was three at the time of the alleged molestation and four at the time of the jurisdictional hearing.
The women returned at about 4:45 p.m., having picked up their older children from school. C.B. helped her older daughter with homework for about an hour, then she and Marissa went to C.B.'s house to pick up some clean laundry.
At about 9:00 p.m., within 20 minutes after the two women again returned to Marissa's house, Doe approached C.B. on the stairs and told her that Isaac had put a toy in her "girl parts," which is how she referred to her vagina. She also told her mother that Isaac "tasted her" and pointed to her vagina and buttocks. Doe said these things "matter of factly, like it was nothing, like no big deal . . . ." C.B. asked her some further questions, including whether it hurt, to which Doe responded, "ouch."
C.B. then brought Doe into Marissa's bedroom and instructed her to repeat the information to Marissa. Doe also told Marissa that Isaac put a toy in her girl parts and tasted her. She told the two women the toy Isaac had used was a walkie-talkie.
C.B. then had Doe repeat the story a third time while Marissa recorded their conversation with a cell phone video camera. In the video Doe said Isaac put the "long part" (antenna) of the walkie-talkie into her "girl parts." She said he took off her pants and panties and that what he did hurt her, and she told him to stop. She also said he "licked" her and put his mouth on her booty and her girl parts.
Much of Doe's dialogue on the video is inaudible, and she frequently whispers to her mother, who repeated on the video what her daughter whispered in her ear. As part of the video Doe retrieved the walkie-talkie for her mother. C.B. put the walkie-talkie into a plastic bag.
C.B. then sent Doe to bed while she thought about what to do next. After discussing the issue with Isaac's mother, at about midnight C.B. took Doe to the hospital to make sure she was not injured. A physical examination was normal and was inconclusive as to sexual abuse. Hospital staff called the police, who interviewed Doe at the hospital.
Part of the report of the Sexual Abuse Response Team (S.A.R.T.) physician was admitted by stipulation as defense exhibit B, but it is not contained in the record on appeal. Defense counsel represented, without contradiction, the report showed "there was no evidence found one way or the other to indicate there was any sexual abuse."
At about 1:00 a.m., Doe repeated her story to the police officer, including that Isaac put a walkie-talkie into her "girl parts" and "booty" and licked her on "both sides," pointing to her vagina and her "booty." Doe told the officer that Isaac had removed her pants and panties before engaging in this conduct. She told the officer it hurt.
Doe's mother asked her if Isaac had used the toy anywhere other than her "girl parts," and she said no.
At 2:00 a.m. or 3:00 a.m. the police went to Isaac's home, had his mother awaken him, and interviewed him outside his parents' presence. In an audio recorded statement Isaac at first denied Doe's accusations. Eventually, after being told that it would be possible for the police to detect saliva on Doe's skin, he admitted that saliva might be found on Doe's "bottom." His mouth made contact with her bottom once, but Isaac continued to deny that he licked her vagina. He said Doe's pants were "sort of" down, but he did not pull them down and her underpants remained on the whole time.
The incident happened while he was "crawling and chasing" the children. He also was "poking them around" with the walkie-talkie and "acting like [he was] a monster," "trying to get 'em with it." He admitted "maybe" he had touched Doe's vagina "on accident" when his mouth made contact with her bottom. Isaac said his penis never came out of his pants during the incident and he did not have an erection.
A petition was filed against Isaac on January 22, 2010, under Welfare and Institutions Code section 602 alleging he had committed a lewd act with a child under age 14. (Pen. Code, § 288, subd. (a).) A contested jurisdictional hearing was conducted beginning April 5, 2010.
Isaac testified at the hearing, elaborating on the story he had told the police. He said he was playing a "licking monster" game with Doe and M. in which he chased them while on his hands and knees with his tongue out, threatening to lick their faces. He said he accidentally licked the upper part of Doe's buttocks during the game when M. jumped onto his back and neck, propelling his head toward Doe's rear end.
Isaac said Doe's pants may have been partially down during this incident, and his tongue may have touched her upper buttocks area just below the waistband. She was wearing her older sister's pants, which were too loose on her. He insisted, however, that her pants never came completely off and her underwear remained on during the entire time. He did not lick her anus. He admitted on cross-examination that he never told the police officer the saliva got on Doe's bottom accidentally, but he thought his description of the monster game conveyed that.
Isaac denied licking Doe's vagina and denied inserting the walkie-talkie into her vagina. He said he was poking the children in the arms and stomachs with the antenna of the toy in a form of battle play. He could not remember if he told the police his saliva might be found on Doe's vagina, but if so it was because he may have drooled on her and the saliva may have trickled down to her vagina. He thought it was unlikely his saliva would be found there.
Isaac denied being sexually attracted to Doe and denied that he had an erection during the incident. He apologized to Doe after the accidental licking. She replied, "I accept your apology."
On May 3, 2010, Isaac was adjudged a ward of the court, and on June 10, 2010, he was ordered to live in a residential facility that offered sex offender treatment. Facts related to the dispositional order will be detailed in the discussion of the challenge to that determination.
DISCUSSION
I. Admissibility of Doe's prior statements under Evidence Code section 1360
A. Factual background
On April 5, 2010, the court heard voir dire on the competency of Doe to testify. It concluded she was unavailable as a witness because she was incapable of discerning truth from falsehood and unable to appreciate the consequences of lying.
On April 23, 2010, the court considered the admissibility of all of Doe's prior statements: (1) to her mother, (2) to Marissa, (3) on the cell phone video recording, and (4) to the police at the hospital. Isaac's counsel objected on hearsay grounds, and argued the statements were not admissible under section 1360.
The court concluded the latter two statements—the cell phone recording and the statement to police—were testimonial under Crawford v. Washington (2004) 541 U.S. 36 (Crawford) and excluded them for their truth because Isaac had never been given an opportunity to cross-examine Doe.
Crawford held "at a minimum" "testimonial" hearsay includes "prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and . . . police interrogations." (Crawford v. Washington, supra, 541 U.S. at p. 68.) Statements will be deemed testimonial when "the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Davis v. Washington (2006) 547 U.S. 813, 822; accord, Michigan v. Bryant (2011) __ U.S. __, 131 S.Ct. 1143, 1154-1155 [when procured with "primary purpose of creating an out-of-court substitute for trial testimony"].) Nontestimonial hearsay has been left to the states to regulate in their development of hearsay law. (Crawford, supra, 541 U.S. at p. 68; see also, People v. Cage (2007) 40 Cal.4th 965, 981-982, fn. 10.) Statements to family members and friends are normally considered nontetstimonial. (Myers, Myers on Evidence of Interpersonal Violence: Child Maltreatment, Intimate Partner Violence, Rape, Stalking, and Elder Abuse (5th ed. 2011) § 7.25[D][1], at p. 861; People v. Cervantes (2004) 118 Cal.App.4th 162, 173-174 [statement to neighbor was nontestimonial].)
Although the third and fourth statements were not admitted for their truth, the court did admit those statements solely as evidence of consistent repetition in support of its reliability determination on the first two statements.
The court concluded the first two statements to Doe's mother and to Marissa, however, were nontestimonial, and Isaac's trial counsel agreed. Isaac's appellate counsel also agrees and therefore concedes the confrontation clause was not violated by admission of those two statements. (See People v. Gutierrez (2009) 45 Cal.4th 789, 812-813.) Therefore at issue are only the court's evidentiary ruling under section 1360 and the due process clause of the federal Constitution. (U.S. Const., 14th Amend.)
B. The juvenile court's ruling under section 1360
On April 23 and again on May 3, 2010, the court heard extended argument on whether the first two statements to C.B. and Marissa were admissible under section 1360, which provides as follows:
"(a) In a criminal prosecution where the victim is a minor, a statement made by the victim when under the age of 12 describing any act of child abuse or neglect performed with or on the child by another, or describing any attempted act of child abuse or neglect with or on the child by another, is not made inadmissible by the hearsay rule if all of the following apply:
"(1) The statement is not otherwise admissible by statute or court rule.
"(2) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability.
"(3) The child either:
"(A) Testifies at the proceedings.
"(B) Is unavailable as a witness, in which case the statement may be admitted only if there is evidence of the child abuse or neglect that corroborates the statement made by the child.
"(b) A statement may not be admitted under this section unless the proponent of the statement makes known to the adverse party the intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings in order to provide the adverse party with a fair opportunity to prepare to meet the statement.
"(c) For purposes of this section, 'child abuse' means an act proscribed by Section 273a, 273d, or 288.5 of the Penal Code, or any of the acts described in Section 11165.1 of the Penal Code, and 'child neglect' means any of the acts described in Section 11165.2 of the Penal Code."
The acts described by Doe fall within the statutory definition of "child abuse" under subdivision (c), based on its incorporation of acts specified in Penal Code section 11165.1, subdivision (a), which includes lewd acts with children. (Pen. Code, § 288.)
The juvenile court found the evidence of Doe's hearsay statements to C.B. and Marissa sufficiently reliable to allow their admission under subdivision (a)(2), despite finding Doe truth incompetent. After admitting the first two of Doe's statements and testimony from the police officer who interviewed Isaac, as well as hearing from Isaac, the court found the charge of violating Penal Code section 288, subdivision (a) true beyond a reasonable doubt. It specifically found Doe's demeanor on the cell phone video to be "guileless," a reflection of "pure innocence." It found, on the other hand, Isaac's testimony to be a "fanciful account."
References to subdivisions without designation of statute are to the subdivisions of section 1360.
In re Cindy L. (1997) 17 Cal.4th 15, 31 (Cindy L.), distinguished between "fear incompetency"—where the child understands the difference between the truth and a lie and understands the duty to tell the truth, but is overawed by the courtroom setting and therefore unable to testify—and "truth incompetency"—where, as here, a child is incompetent because she or he does not understand the difference between truth and falsehood.
C. Standard of review
The parties disagree regarding the standard of review. Citing People v. Eccleston (2001) 89 Cal.App.4th 436, 445 (Eccleston), Isaac contends a de novo standard of review should apply because the reliability determination under section 1360 is a mixed question of fact and law implicating a defendant's constitutional rights of confrontation and due process. The Attorney General asserts the abuse of discretion standard applies to questions of admissibility.
In determining whether the evidence was admissible under section 1360, which is our present concern, we will apply the ordinary abuse of discretion standard. (Cf. Cindy L., supra, 17 Cal.4th at p. 35; People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1367 (Roberto V.); People v. Brodit (1998) 61 Cal.App.4th 1312, 1330 (Brodit).) Put otherwise, we must uphold the juvenile court's findings leading to its admissibility determination, and that determination itself, if they are supported by substantial evidence. (In re Lucero L. (2000) 22 Cal.4th 1227, 1249 (Lucero L.).)
D. Reliability under subdivision (a)(2)
In Idaho v. Wright (1990) 497 U.S. 805 (Wright), the United States Supreme Court discussed the constitutionality of a state's use of its residual hearsay exception to admit a nontestifying child's prior hearsay statements regarding sexual abuse. It found admission of a child's out-of-court statements under such a statute did not offend the confrontation clause of the Sixth Amendment, so long as those statements bore " 'particularized guarantees of trustworthiness.' " (Id. at p. 816.) This was in the pre -Crawford era when reliability was the touchstone of admissibility under a confrontation clause analysis. (Id. at pp. 814-816; see generally, Ohio v. Roberts (1980) 448 U.S. 56, 65-66, overruled in Crawford, supra, 541 U.S. at pp. 60-61.)
In Wright, a young child, age three at trial, was declared unavailable as a witness because she was not capable of communicating to the jury. (Wright, supra, 497 U.S. at p. 809.) Her prior statement to a physician describing lewd contact with her stepfather was admitted at trial under a state residual hearsay rule. (Id. at pp. 812-813.) The Supreme Court identified four nonexclusive factors that enter into a reliability determination in ruling on the admissibility of such testimony: (1) spontaneity and consistent repetition, (2) the mental state of the declarant, (3) use of terminology unexpected of a child of similar age, and (4) lack of a motive to fabricate. (Id. at pp. 821-822.)
The Supreme Court rejected the state's argument that corroborating evidence in the record served to support a finding that the child's hearsay was reliable. It held " 'particularized guarantees of trustworthiness' must be shown from the totality of the circumstances, but . . . the relevant circumstances include only those that surround the making of the statement and that render the declarant particularly worthy of belief." (Wright, supra, 497 U.S. at p. 819; see also Roberto V., supra, 93 Cal.App.4th at p. 1374.)
The courts of California have adopted the same four nonexhaustive criteria. (E.g., Lucero L., supra, 22 Cal.4th at p. 1239; Cindy L., supra, 17 Cal.4th at pp. 29-30; Eccleston, supra, 89 Cal.App.4th at p. 445; Roberto V., supra, 93 Cal.App.4th at p. 1374; Brodit, supra, 61 Cal.App.4th 1312, 1329-1330.) They have also explicitly recognized a fifth factor—the child's truth competence or incompetence—as bearing on the reliability determination in similar circumstances. (Cindy L., supra, 17 Cal.4th at p. 30 [child dependency hearsay exception].)
The court in this case actively engaged in extensive discussion with counsel on whether the statements met the four Wright criteria in determining whether Doe's statements were admissible under section 1360. In addition, the court considered the fifth criterion—the child's incompetence to testify—as a factor weighing against admissibility. This approach was consistent with the reasoning of Wright, supra, 497 U.S. at p. 824, Cindy L., supra, 17 Cal.4th at p. 18, and Roberto V., supra, 93 Cal.App.4th at p. 1374.
E. Hearsay of truth incompetent children
Section 1360 was adopted in 1995. (Stats. 1995, ch. 87, § 3.) Prior to its enactment, the courts had only recently begun to recognize a similar judicially-created hearsay exception for children's statements both in social studies and in testimony by other witnesses in dependency cases. (In re Carmen O. (1994) 28 Cal.App.4th 908, 921.)
Carmen O. involved a four-year-old child who was not necessarily truth incompetent but was unable to testify due to the formality of the proceedings. (Carmen O., supra, 28 Cal.App.4th at pp. 911-912.) Carmen told Ruby, her 13-year-old half sister, that her father had molested her. (Id. at p. 912.) Ruby repeated Carmen's accusations to their grandmother, who then reported the complaints to Carmen's mother. (Ibid.) A medical examination showed "consistency with the possibility of hymen injury." (Ibid.) Statements Carmen had made to a social worker were deemed admissible, as were statements she had made to Ruby, which were repeated to her grandmother and mother. (Id. at p. 912.) In determining that Ruby, the mother, and grandmother could testify to Carmen's statements in a dependency proceeding, the Fourth District held the prior statements of a fear incompetent child (as opposed to a truth incompetent child) were admissible under a new, judicially-created "child dependency hearsay exception." (Carmen O., supra, 28 Cal.App.4th at pp. 915, 921.)
That hearsay exception was subsequently refined and approved by the Supreme Court in Cindy L., supra, 17 Cal.4th at p. 18, where the court applied the rule of Carmen O. in a case involving a truth incompetent child. Cindy L. was nearly four years old at the time of the alleged molestation by her father and nearly four and a half at the jurisdictional hearing. (Cindy L., supra, at p. 19.) The abuse came to light when Cindy was observed at her preschool touching her genital area during nap time. She told a teacher's aide "my father always touches me right here." (Ibid.) A doctor who subsequently conducted a physical examination was unable to visualize a hymen, which was "consistent with the reported history of sexual abuse." (Id. at p. 20.) Testimony by the teacher's aide was deemed admissible under the hearsay exception recognized in Carmen O., supra, 28 Cal.App.4th at p. 921. (Id. at pp. 20-21, 34-36.)
Cindy L. held that truth incompetence does not preclude admission of child hearsay categorically. "[A] finding that a child is not competent to differentiate between truth and falsehood or to understand the duty to tell the truth at the time he or she is prepared to testify should not be an absolute bar to the admission of the child's hearsay testimony, but only one circumstance to be considered in determining whether the child's statement is reliable." (Cindy L., supra, 17 Cal.4th at p. 18; see also, Wright, supra, 497 U.S. at p. 824.)
Cindy L. acknowledged " 'on the one hand the childish disposition to weave romances and to treat imagination for verity, and on the other hand the rooted ingenuousness of children in their tendency to speak straightforwardly what is in their minds.' (2 Wigmore, Evidence (Chadbourn ed. 1979) § 509, p. 719.)" (Cindy L., supra, 17 Cal.4th at p. 34.) It also noted that "contemporary psychological research affirms a young child's capacity to tell the truth. (See, e.g., Melton et al., Psychological Evaluations for the Courts (2d ed. 1997) § 7.07, p. 173 [reporting little relationship between age and honesty, although conceptualization of duty to tell the truth varies with age].)" (Ibid.) The court therefore concluded, "There is no logical reason for denying admission of out-of-court statements that circumstances indicate originate from a child's 'rooted ingenuousness' merely because he or she appears unable to understand, in the abstract, the duty to tell the truth." (Id. at pp. 34-35) Thus, while "a child's truth competence is a factor in determining the reliability of a hearsay statement, it is not necessarily the decisive factor." (Ibid.)
There is some disagreement in the case law whether a child's truth incompetency makes his or her statements more reliable or less reliable. Some jurists argue that very young children may be less likely, or no more likely than older children, to fabricate. (Lucero L., supra, 22 Cal.4th at p. 1255 (Chin, J., conc.); Carmen O., supra, 28 Cal.App.4th at p. 921 [where child was of "of a very young age . . . it is unlikely that the accusation was fabricated or the product of imagination].) The psychological research appears to be divided on the subject. (See Raeder, Distrusting Young Children Who Allege Sexual Abuse: Why Stereotypes Don't Die and Ways to Facilitate Child Testimony (2010) 16 Widener L. Rev. 239, 242.) For purposes of this case we adhere to the view of the Lucero L. plurality that the truth incompetence of a child declarant "detracts from the declarant's reliability." (Lucero L., supra, 22 Cal.4th at p. 1247.)
F. The reliability factors in Isaac's case
Analyzing the Wright and Cindy L. factors identified above, the juvenile court did not abuse its discretion in concluding the evidence possessed "sufficient indicia of reliability" within the meaning of subdivision (a)(2).
It is unclear how promptly after the alleged sexual act Doe reported the incident to her mother. C.B. testified that Doe approached her within 20 minutes after she returned to Marissa's house for the second time. Doe's report did not include exactly when the molestation happened (i.e., during the mother's first absence or second). Doe said on the cell phone video her older sister was at school when it happened, which suggests it happened earlier in the day, during C.B.'s first absence. Isaac said in the police interview that the encounter occurred about 15 minutes before C.B. returned home, but his testimony suggests it was before C.B. returned in the afternoon.
Still, the first account was volunteered by Doe without questioning or prompting by anyone. In that sense the "spontaneity" factor supports the court's decision to admit the first statement under section 1360, subdivision (a)(2). (See Wright, supra, 497 U.S. at pp. 821-822.)
The court did not rely on spontaneity with respect to the second statement, as Doe's mother appears to have instructed her to repeat her earlier statements. Since the two statements were essentially identical, however, we could not find any error in admitting the second statement to be prejudicial.
Doe also fairly consistently repeated her allegations, both to Marissa and in the later two statements on video and to the police officer. The parties argued at some length below about whether all the details of the statements were consistent. The child added some detail as she told the story repeatedly, for instance, identifying the exact part of the toy (antenna) that was used in the third and fourth statements. Such addition of detail is not particularly troubling with respect to the reliability determination.
Other inconsistencies appear to be of more concern. Doe told the police that Isaac inserted the toy into her "booty," which conflicts with what she had told her mother. In the cell phone video she said Isaac used the walkie-talkie "one time" and was going to do it "two times later." She told the police officer that Isaac used it "a lot" of times. She also said in the cell phone video that no one had ever touched her girl parts before and yet responded that she did not know whether Isaac had ever done it before. Asked once whether she told him to stop she responded, "Uh-huh." Asked the same question later she said, "No." While these inconsistencies give us some pause, they do not alter our conclusion that Doe's statements were sufficiently reliable to be admissible under section 1360.
Because the allegation of molestation was consistent throughout, these differences do not render the statements inadmissible for purposes of section 1360. (See Lucero L., supra, 22 Cal.4th at p. 1250 [child's statements not identical in every detail, but "consistently informed questioners she was molested by [her father]"].) There was substantial evidence to support the court's finding that Doe had spontaneously made the first statement and consistently repeated her allegations thereafter.
The juvenile court weighed the second factor, the child's mental state, against admissibility. C.B. testified twice that Doe was not upset at the time she made the statements and reported the incident "matter of factly." Thus, her mental state would not qualify her statements as excited utterances or put her in the posture of one of seeking help for a medical problem, such as would make fabrication unlikely. (Cf. §§ 1240, 1253.) The Attorney General argues, however, that even this factor supports a reliability finding because the court did observe that Doe was "a little self-conscious" during her video-taped statement, which suggests she was not altogether comfortable with the subject matter. The court found this "very telling." Using that analysis, Doe's discomfort may have tended to increase her reliability because she was disclosing conduct by Isaac that was out of the ordinary and somewhat embarrassing.
Neither the timing nor the child's manner would support admission of the evidence under an excited utterance rationale (§ 1240), and it was ruled inadmissible under that section.
The third factor, use of terminology unexpected of a child of similar age, strongly favored admissibility. Although Doe did not use sophisticated or explicit "terminology," she described sexual conduct with which a child of such tender years would not ordinarily be expected to be familiar. That she referred to penetration with a foreign object and oral copulation suggests exposure to experience atypical of a three-year-old. Her use of childish, nontechnical terminology, such as "girl parts" and "booty," does not undermine this consideration as weighing in favor of admissibility. Such language tends to show she was speaking from her own knowledge, using her own words, and was not being coached. (See Lucero L., supra, 22 Cal.4th at p. 1250.)
The fourth factor, whether she had a motive to lie, was considered by the court as favoring admissibility. Isaac objects to the court's partial reliance on this factor because, he claims, there was no evidence one way or the other on this issue.
But Isaac himself testified about his difficult relationship with Marissa, and his counsel theorized that Marissa's animosity toward Isaac could have influenced Doe. Even if some degree of sibling rivalry existed between him and Marissa, the court found it a "speculative stretch" that such tension between the siblings would have influenced Doe to make up a story about Isaac. Nor was there any evidence of prompting or coaching by C.B. or Marissa for Doe to accuse Isaac of misconduct in the first instance.
There was also no evidence that Doe felt any animosity or resentment toward Isaac. They had played together at Marissa's house before, and Isaac had previously babysat her. Isaac expressed no belief that Doe wanted to get him into trouble, nor was there any reason to believe she knew her statements would get him into trouble. We find no error in the court's consideration of this factor.
The fifth factor—Doe's testimonial incompetence—is as we have discussed but one factor to be considered with the others. In light of the juvenile court's careful consideration of the relevant factors in Isaac's case, we find it did not abuse its discretion in determining that Doe's first two statements were reliable enough to be admissible under the hearsay exception established by section 1360.
G. Corroboration under subdivision (a)(3)(B)
Because Doe was unavailable as a witness, section 1360 required independent "evidence of the child abuse or neglect that corroborates the statement made by the child." (§ 1360, subd. (a)(3)(B).) The Attorney General posits that Isaac's statement to the police provided the required corroboration. Isaac's appellate counsel does not seriously contest this point, admitting Isaac's statement provides "partial corroboration." Isaac claims, however, that by comparison to the corroboration provided in other cases, the evidence here was insufficient to render Doe's statements admissible because Doe's medical examination was inconclusive and there was no evidence of prior sexual misconduct by Isaac.
In Cindy L., supra, 17 Cal.4th at p. 29, the Supreme Court wove into its "child dependency hearsay exception" a requirement of corroboration similar to that contained in section 1360 if the child witness is unavailable. The "requirement of corroboration is an additional safeguard against the possibility of fabrication by very young witnesses whose out-of-court statements are insulated from the rigors of cross-examination." (Id. at p. 30; accord, Eccleston, supra, 89 Cal.App.4th at p. 449.)
Corroborating evidence is defined as " 'evidence supplementary to that already given and tending to strengthen or confirm it. Additional evidence of a different character to the same point.' " (In re B.D. (2007) 156 Cal.App.4th 975, 984 (B.D.).) "Corroborative evidence in this context is ' " 'evidence . . . which would support a logical and reasonable inference' " ' that the act of abuse described in the hearsay statement occurred." (Cindy L., supra, 17 Cal.4th at p. 35.)
We agree with Isaac that the corroboration in this case was weak by comparison with that in other cases. For instance, there was no independent medical evidence that Isaac had molested Doe. (Cf. Wright, supra, 497 U.S. at p. 809; Lucero L., supra, 22 Cal.4th at p. 1234 [anal fissure]; Cindy L., supra, 17 Cal.4th at p. 20 [no visible hymen]; Carmen O., supra, 28 Cal.App.4th at p. 912 [hymen injury].) And unlike several other cases, there was no evidence that Isaac had ever abused another child. (Lucero L., supra, 22 Cal.4th at pp. 1232, 1234-1235; Roberto V., supra, 93 Cal.App.4th at pp. 1358-1360; Eccleston, supra, 89 Cal.App.4th at p. 441.) In Wright, supra, 497 U.S. at p. 809, Lucero L., supra, 22 Cal.4th at pp. 1232-1235, and Roberto V., supra, 93 Cal.App.4th at p. 1358, an older child was abused and reported both her own molestation and that of her younger sister. In Brodit the abused child testified, and thus corroboration was not necessary under section 1360. (Brodit, supra, 61 Cal.App.4th at p. 1322.)
Still, a corroboration requirement generally calls for only "slight" corroboration. (Cf., e.g., People v. Gurule (2002) 28 Cal.4th 557, 628 [accomplice testimony, which requires corroboration under Penal Code section 1111, requires only "slight corroboration"]; In re B.D., supra, 156 Cal.App.4th at p. 984 [only "slight" corroborating evidence necessary to support admissibility of child hearsay in social study in dependency proceeding].) Isaac's statement to the police included an admission that his saliva might be found on Doe's "bottom." This admission, though never substantiated by forensic evidence, would tend to "support a logical and reasonable inference that the act of abuse described in the hearsay statement occurred." (Cindy L., supra, 17 Cal.4th at p. 35.) His improbable explanation—rejected by the judge who witnessed him testify—arguably tended to show a consciousness of guilt. We therefore find there was sufficient corroboration to render Doe's first and second statements admissible under section 1360.
Reviewing the court's implicit finding of corroboration deferentially, and applying a "slight corroboration" requirement, we find no basis for reversing the juvenile court's decision to admit evidence of Doe's statements to C.B. and Marissa.
II. Admissibility and substantiality of Doe's hearsay under due process clause
Isaac concedes the admission of Doe's prior statements did not violate the confrontation clause because the statements were not testimonial. He nevertheless argues he had "a right to test the reliability of Doe's testimony under the due process clause of the Fourteenth Amendment" and that his jurisdictional hearing was "fundamentally unfair" due to the lack of reliability of Doe's prior statements.
A due process violation flows from erroneous admission of evidence only if the trial is rendered fundamentally unfair. (Estelle v. McGuire (1991) 502 U.S. 62, 75; People v. Partida (2005) 37 Cal.4th 428, 439.) Whether admission of Doe's statement violated due process is a mixed question of fact and law subject to de novo review. (Roberto V., supra, 93 Cal.App.4th at p. 1374 [confrontation clause challenge]; Eccleston, supra, 89 Cal.App.4th at p. 445 [same]; see also, e.g., People v. Cromer (2001) 24 Cal.4th 889, 900 [whether prosecution used reasonable diligence to locate witness].)
We review the sufficiency of the evidence using the substantial evidence standard, taking into account the prosecution's burden of proof. (In re Cesar V. (2011) 192 Cal.App.4th 989, 994-995.) "Substantial" evidence is that which is reasonable, credible and of solid value. (Id. at p. 994.) A conviction based on evidence which does not meet that standard violates due process. (Jackson v. Virginia (1979) 443 U.S. 307, 317-319.)
Isaac focuses on whether the evidence was admissible, but we read his briefing as also encompassing a sufficiency of the evidence claim.
In re Lucero L. (2000) 22 Cal.4th 1227
1. Facts
Though it construed a different hearsay exception, Lucero L., supra, 22 Cal.4th 1227 sheds light on this issue. In that case the court was called upon to decide whether hearsay statements of the truth incompetent three-year-old Lucero could be admitted in a dependency proceeding under section 300 of the Welfare and Institutions Code. Lucero had told both Maribel (her 17-year-old half sister) and a social worker that her father touched her vaginal area; she also complained of pain in that region. (Id. at pp. 1231-1232.) Maribel told the social worker that Lucero's father had also molested her, including raping her. (Id. at p. 1232). After Lucero was removed from the home, she also made statements to her foster mother suggesting her father had abused her. (Id. at pp. 1233, 1250.) A police investigation was inconclusive, but in a taped statement Lucero used words and actions indicating her father had touched her vaginal and rectal areas. (Id. at pp. 1233-1234.) A physical examination of Lucero showed an anal fissure which could have been the result of constipation or abuse. (Id. at p. 1234.)
The trial court ruled Lucero's statements were inadmissible under Cindy L., supra, 17 Cal.4th 15 because, although inherently reliable, they were uncorroborated. It further concluded, however, that Lucero's statements quoted in her social study were admissible under Welfare and Institutions Code section 355, subdivision (c)(1)(B) and (C), which permits reliance on the hearsay statements in social studies made by minors under age 12 who are the subject of the jurisdictional hearing. (Lucero L., supra, 22 Cal.4th at p. 1234.)
At the jurisdictional hearing, Maribel retracted her accusations about her stepfather, claiming she could not remember if he had touched her inappropriately, although her testimony was equivocal and was evidently influenced by her mother. Maribel's credibility was impeached by the testimony of a social worker who said Maribel had repeated the accusation that Lucero's father had raped her just one week prior to her testimony. (Lucero L., supra, 22 Cal.4th at p. 1235.)
The juvenile court found that Lucero and Maribel had both been molested and that Maribel's recantations were false. (Lucero L., supra, 22 Cal.4th at p. 1236.) Lucero was adjudged a dependent child both because she had been abused and because she was at risk of being abused. (Welf. & Inst. Code, section 300, subds. (d) & (j).) The Court of Appeal affirmed, holding Welfare and Institutions Code section 355 "created an exception to the rule against hearsay that was separate from and in some respects broader than the child dependency exception recognized in Cindy L." (Id. at p. 1237.) The Court of Appeal "did not distinguish between the lower court's finding that Lucero had been abused, which appears to have been based solely on her hearsay statements, and its finding that there was substantial risk that she would be abused, based on the testimony of Maribel." (Ibid.) The court also could properly rely on an expert witness for the prosecution who testified about the frequent recantation of victims of child molestation and the increased risk to a man's biological daughter if he had previously molested a nonbiological female child in the home. (Lucero L., supra, 22 Cal.4th at pp. 1235, 1237.).
2. Admissibility
The initial question before the Supreme Court in Lucero L. was whether the trial court had properly admitted Lucero's hearsay statements in the social study under Welfare and Institutions Code section 355, which allows hearsay of child abuse victims contained in a social study to be admitted in dependency proceedings intended to protect that same declarant. (Welf. & Inst. Code, § 355, subd. (b).) Such statements may be relied on as the sole evidence of abuse if the declarant "is a minor under the age of 12 years who is the subject of the jurisdictional hearing"; the statute places the burden on the party opposing introduction of the hearsay to prove "that the statement is unreliable because it was the product of fraud, deceit, or undue influence." (Welf. & Inst. Code, § 355, subd. (c)(1)(B).)
Welfare and Institutions Code section 355 provides in part as follows:
"(a) . . . Any legally admissible evidence that is relevant to the circumstances or acts that are alleged to bring the minor within the jurisdiction of the juvenile court is admissible and may be received in evidence. . . .
"(b) A social study prepared by the petitioning agency, and hearsay evidence contained in it, is admissible and constitutes competent evidence upon which a finding of jurisdiction pursuant to Section 300 may be based, to the extent allowed by subdivisions (c) and (d). [¶] . . . [¶]
"(c)(1) If any party to the jurisdictional hearing raises a timely objection to the admission of specific hearsay evidence contained in a social study, the specific hearsay evidence shall not be sufficient by itself to support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based, unless the petitioner establishes one or more of the following exceptions:
"(A) The hearsay evidence would be admissible in any civil or criminal proceeding under any statutory or decisional exception to the prohibition against hearsay.
"(B) The hearsay declarant is a minor under the age of 12 years who is the subject of the jurisdictional hearing. However, the hearsay statement of a minor under the age of 12 years shall not be admissible if the objecting party establishes that the statement is unreliable because it was the product of fraud, deceit, or undue influence.
"(C) The hearsay declarant is a peace officer . . . , a health practitioner . . . , a social worker . . . , or a teacher . . . . For the purpose of this subdivision, evidence in a declaration is admissible only to the extent that it would otherwise be admissible under this section or if the declarant were present and testifying in court.
"(D) The hearsay declarant is available for crossexamination. For purposes of this section, the court may deem a witness available for crossexamination if it determines that the witness is on telephone standby and can be present in court within a reasonable time of a request to examine the witness. [¶] . . . [¶]
"(d) This section shall not be construed to limit the right of any party to the jurisdictional hearing to subpoena a witness whose statement is contained in the social study or to introduce admissible evidence relevant to the weight of the hearsay evidence or the credibility of the hearsay declarant."
The Supreme Court held that though she was deemed truth incompetent, Lucero's statements were admissible under the statute even if they did not meet the requirements of Cindy L.'s "child dependency hearsay exception." (Lucero L., supra, 22 Cal.4th at p. 1242.) Specifically, the court held the corroboration requirement under Cindy L.— which is not included in Welfare and Institutions Code section 355—is not mandated by due process as a prerequisite of admissibility. (Lucero L., supra, 22 Cal.4th at pp. 1248-1249.)
3. Substantiality
Significantly for our discussion, the plurality opinion of the Supreme Court did not stop with an interpretation of the statute. It went on to hold that unreliable hearsay cannot, as a matter of due process, form the sole basis for a dependency jurisdictional finding. (Lucero L., supra, 22 Cal.4th at p. 1244.) Interestingly, and in contrast to section 1360, Welfare and Institutions Code section 355, subdivision (c)(1), makes provision not only for admissibility of child hearsay, but also places limits on the court's reliance on any such hearsay: hearsay in a social study, if objected to, "shall not be sufficient by itself to support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based . . . ." It excepts, inter alia, (1) statements admissible under another hearsay exception, and (2) statements made by a child under 12 years old who is the subject of the jurisdictional hearing. (Id., subd. (c)(1)(A) & (c)(1)(B).) (See fn. 17, ante.)
Apparently with reference to the first of these exceptions, Lucero L., supra, 22 Cal.4th at p. 1244, recited that a child's hearsay statement may not be the sole evidence upon which a jurisdictional finding is based "[e]xcept in those instances recognized by statute where the reliability of hearsay is established." This suggests that evidence admissible under section 1360, because it contains a reliability requirement for admission, also meets the substantiality standard. (See Welf. & Inst. Code, § 355, subd. (c)(1)(A).) That the hearsay exception we construe also corresponds to the second exception identified above makes it all the more clear that Doe's evidence was not only admissible but could be considered sufficient evidence of abuse if it had been offered in a child dependency proceeding.
The lead opinion in Lucero L. noted that questions of admissibility and substantiality are separate and different. (Lucero L., supra, 22 Cal.App.4th at p. 1244.) The plurality opinion interposed a due process reliability requirement in addition to the statutory provisions: although uncorroborated, unreliable hearsay may be admissible, Lucero L. held " ' "mere uncorroborated hearsay or rumor does not constitute substantial evidence." ' " (Ibid.) It rooted this limitation in the due process clause.
"[W]hile the hearsay declaration of a child contained in a social study may be constitutionally admitted, Malinda S. [(1990) 51 Cal.3d 368] and the cases on which it relied suggest the due process problems inherent in relying too heavily on the hearsay statements of incompetent minors to make jurisdictional findings when there has been no opportunity for cross-examining the minor." (Lucero L., supra, 22 Cal.4th at p. 1244.) Therefore, the plurality opinion addressed whether Lucero's statements, concededly admissible, could alone support a jurisdictional finding. (Lucero L., supra, 22 Cal.4th at p. 1242.)
The plurality in Lucero L. held that hearsay of a truth incompetent child in a social study could not, consistent with due process, be relied upon as the sole evidence supporting a jurisdictional finding in the absence of "special indicia of reliability." (Lucero L., supra, 22 Cal.4th at pp. 1231, 1246-1248.) It found such indicia present in Lucero's case. (Id. at p. 1231.) In so holding, the opinion used an analysis similar to the reliability factors of Wright and Cindy L. (Lucero L., supra, at p. 1250.)
The Supreme Court employed the four-part "flexible balancing standard" under California and federal law to determine what sort of process is due: " ' " '(1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the [dignity] interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible governmental official, and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.' " ' " (Lucero L., supra, 22 Cal.4th at p. 1246.)
Indeed, it appears to us that the "special indicia of reliability" required under Lucero L. may be roughly equated with "sufficient indicia of reliability" required under section 1360, subdivision (a)(2). Lucero L. alternately described the due process restriction as requiring that " 'the time, content and circumstances of the statement provide sufficient indicia of reliability.' " (Lucero L., supra, 22 Cal.4th at p. 1248). This formulation tracks the language of section 1360, subdivision (a)(2), which further suggests the two tests are interchangeable. (Lucero, supra, at pp. 1247-1248.)
The Lucero L. plurality further cautioned: "[W]e emphasize the importance of juvenile court scrutiny of the statements of young children who are both legally incompetent and insulated from cross-examination. At least in the case of a truth incompetent minor, the court may rely exclusively on these out-of-court statements only 'if the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility . . . .' " (Lucero L., supra, 22 Cal.4th at p. 1249.) We requested supplemental briefing on whether this "marginal utility" test applies in this delinquency proceeding, and if so, whether it was met.
We are persuaded that, generally speaking, the Lucero L. due process analysis applies in juvenile delinquency proceedings. We reach that conclusion because of the significance of the minor's interest in a juvenile adjudication. Where a juvenile's liberty is at issue, as well as social stigma and potential collateral consequences (such as the prospect of sex offender registration), the government must be held to at least as stringent a proof requirement as where parental rights are involved. That the government shares an interest in assuring juveniles are declared wards only on reliable evidence strongly suggests to us that the due process analysis of Lucero L., including the "marginal utility" test, applies whenever the state relies solely on the hearsay statement of an incompetent minor in making a delinquency finding.
A plurality opinion is not generally binding. (Board of Supervisors v. Local Agency Formation Com. (1992) 3 Cal.4th 903, 918 [plurality opinion "lacks authority as precedent"]; People v. Karis (1988) 46 Cal.3d 612, 632] [opinion "is not binding precedent since a majority of the court did not join in the plurality opinion"]; Quinn v. U.S. Bank NA (2011) 196 Cal.App.4th 168, 180.) " '[A]ny proposition or principle stated in an opinion is not to be taken as the opinion of the court, unless it is agreed to by at least four of the justices.' [Citations.]" (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 829.)
In Lucero L., concurring Justices Kennard and Brown agreed with the notion that a truth incompetent child's hearsay statements may not constitute the "sole basis for a jurisdictional finding unless they show special indicia of reliability" but did not expressly indicate agreement with the "marginal utility" test quoted in text ante. (22 Cal.4th at pp. 12501251 (Kennard, J., conc.).) Whether that test is binding is therefore unclear. Regardless whether the test enunciated by the plurality is binding, we agree with Isaac that it is appropriately applied in juvenile delinquency proceedings.
But that does Isaac little good. Lucero L. expressly limited its due process substantiality analysis, and its "marginal utility" test, to those cases in which an incompetent child's hearsay statement is relied on "solely" or "exclusively" to support a jurisdictional finding. (22 Cal.4th at pp. 1231, 1249.) Although Doe's statements were the most significant evidence against Isaac, they were not the sole evidence that he molested Doe. As discussed above, Isaac's admission to police and the court that his mouth had touched Doe's bottom constituted sufficient corroboration to justify admission of Doe's first two hearsay statements. It also took the case out of the rule of Lucero L., which imposes due process limits on the court's sole reliance upon such hearsay. Thus, even if Doe's statements alone would not have been substantial evidence of molestation, Isaac's subsequent admission makes the "marginal utility" test of Lucero L. inapplicable.
In B.D., supra, 156 Cal.App.4th at pp. 975, 984-985, four adult witnesses saw a teenage mother hit her child on the head and throw him into a bench. (Id. at pp. 980-981.) The witnesses did not testify at the jurisdictional hearing, but their statements were contained in the child's social study. (Id. at pp. 981-982.) The mother, who had a history of mental health issues, told police she merely "tapped" the boy on the head and gave inconsistent explanations for how he got a bloody nose. (Id. at pp. 978, 980, 985.) This, together with the child's physical injuries and demonstrated fear of his mother, was deemed sufficient corroboration to meet the substantiality standards of Welfare and Institutions Code section 355, so that the juvenile court's dismissal of the petition was reversed. The hearsay statements were made by adults and therefore were not governed by the Lucero L. marginal utility test. The case does demonstrate, however, that the corroboration required, at least for reliance under the Welfare and Institutions Code section 355, is minimal and may consist at least in part of an incredible explanation by the accused.
We think the same is true of the requirement of corroboration to comply with the due process limits on substantiality. As we have discussed, Isaac's admissions and improbable explanations amounted to only slight corroboration of Doe's statements. Nevertheless, the focus under the "marginal utility" test, while ultimately phrased in terms of the utility of cross-examination (since it was initially propounded in a challenge based on the confrontation clause), has as its analytical focus whether the witness's " 'truthfulness is . . . clear from the surrounding circumstances.' " Lucero L., supra, 22 Cal.4th at p. 1249. Thus it appears to be, in essence, another form of reliability test. And regardless whether it finds its roots in the confrontation clause or the due process clause, we find the statements by Doe bore sufficient indicia of truthfulness that their admission and the court's reliance upon them did not offend the constitution.
Having conducted an assessment of the reliability of Doe's statements above, and finding the court did not rely "solely" or "exclusively" upon them, we conclude Doe's hearsay statements were admissible under section 1360 and the due process clause, and combined with Isaac's own statements, they were sufficiently trustworthy to constitute substantial evidence supporting the juvenile court's jurisdictional finding and order. Isaac was not deprived of due process in the jurisdictional proceeding.
III. Abuse of discretion in disposition
Isaac's other argument is that the court erred in placing him out-of-home in a facility where he could receive sex offender treatment. He claims his father's home would have been a preferable placement and he could have received sex offender treatment as an outpatient at A Step Forward, a program for adolescent offenders. Isaac points out he had no prior juvenile record and was a reasonably good student. Because two defense experts recommended that Isaac be allowed to live at home with his father, Isaac claims the court abused its discretion in committing him to a residential sex offender treatment program.
Isaac's father was described by one expert as "consistent" and "caring" and by another as "more than willing" to do whatever was needed to assist Isaac, including making contact with A Step Forward, where he had arranged for Isaac's enrollment. The father had been a minister, but he had become disabled. At the time of disposition he was living in Richmond with his sister and her husband. There were no children in that household.
One of defendant's experts, Raymond Newman, was a longtime mental health program manager for Contra Costa County's West County Child and Adolescent Services. He had run a county-wide adolescent sex offender program for seven years. Newman had interacted with Isaac while he was in juvenile hall, having spent a total of 10 to 15 hours with him. Newman concluded there was no evidence that Isaac had a sexual interest in children and there was no other history of impulsive high risk behaviors. He believed Isaac was truly remorseful over the event, and he thought Isaac would do well in an outpatient program such as A Step Forward (with which Newman was also affiliated), which would allow him to continue going to school and participating in the community.
Larry Wornian, a neuropsychologist, also wrote a report recommending home placement and outpatient treatment for Isaac, but he did not testify. He had spent about four and a half hours with Isaac and had administered psychological tests in addition to interviewing him. He characterized Isaac as having high-average IQ but being at risk for becoming overwhelmed by emotion and losing "ideational and behavioral control." He opined the offense against Doe was committed "spontaneously" and doubted there was any planning involved. He found Isaac showed a "clinically significant level of sexual discomfort" and would not admit even normal adolescent male sexual interests. He also recommended that Isaac be placed with his father and that he participate in outpatient sex offender treatment.
On the other hand, the probation officer recommended an out-of-home placement that would allow for intensive sex offender treatment. She gave several reasons for her recommendation, including her less sanguine view of Isaac's progress in school, noting he had been getting mostly D's and had been absent from school "numerous" times. Isaac had also been reprimanded at school for disrespectful and defiant behavior, including "spanking" a female peer, fighting, lying, and otherwise violating school rules. His behavior at juvenile hall had also been "up and down" with some reports that he was manipulative and immature and had trouble accepting accountability for his offense. Isaac had also been observed by juvenile hall authorities standing in his open bedroom doorway holding his penis, an event that seemed to be of particular significance to the juvenile court. The probation officer deemed Isaac "a high risk to the community."
The family dynamics were also very poor. Isaac's parents had separated in 2006. Even before the incident with Doe, Isaac's mother had accused his father of beating Isaac with a stick, though it was never substantiated. This resulted in a change of custody from the father's to the mother's home, where the incident with Doe occurred. The parents argued and sometimes put Isaac in the middle of their arguments. The probation officer observed that Isaac's mother had trouble focusing on Isaac's misconduct because she remained disturbed by the manner in which the incident came to light. The animosity between the parents became so extreme that juvenile hall staff was forced to intervene in one of their arguments.
It was evident from the tape of Isaac's police interview that the family problems were causing him distress. Shortly before the incident with Doe, Isaac had found out he was adopted because his mother blurted it out during an argument with his father. The mother also suspected that the father was having an affair with one of the women with whom he and Isaac had shared a home, and Isaac was drawn into the dispute in defense of his father. Indeed, the probation officer noted that Isaac was so distracted by "other family issues" that he found it difficult to focus on "the offense at hand." Given Isaac's emotional reaction to the family's problems, the probation officer concluded that the family's living arrangement was "unstable" for Isaac and he needed to be in a "structured and nurturing environment." Indeed, even Dr. Wornian's report acknowledges the seriousness of the conflict between the two parents, noting that Isaac had been "caught in the crosshairs of each parents' [sic] anger toward the other" and there was "little reason to doubt that the parents will continue to bicker and proceed with their own divorce."
The court declined to follow the recommendations of Newman and Wornian and ordered Isaac placed in a residential treatment program for adolescent sex offenders. Although the court did not doubt the parents' dedication to Isaac, it believed they had not shown appropriate concern about his school attendance and behavioral problems. But the court's biggest concern, shared by the probation officer, appears to have been Isaac's failure to come to grips with his own misconduct, having given an exculpatory version of the events to both Newman and Wornian.
Specifically, Isaac told Newman he had not licked Doe's skin or her vagina, and he denied putting the walkie-talkie in her vagina. Isaac continued to tell Newman it was a game that had gone too far. Isaac also told Dr. Wornian that he "never touched the walkie-talkies at all" and that he licked Doe's bottom "with her clothes on", even though he admitted in his statement to the police and at the jurisdictional hearing that he had, in fact, used the walkie-talkie in some manner in interacting with Doe and that his mouth had touched her bottom. The court observed that offenders who accept responsibility for their actions are more likely to succeed in a treatment program.
The question before us is whether the court erred in accepting the probation officer's recommendation rather than that of Isaac's expert witnesses. Specifically, Isaac contends there was no substantial evidence to support either the disposition or the juvenile court's finding that the probation department had made reasonable efforts to prevent Isaac's removal from his family's home. But the probation department worked with the family for several months while Isaac was in juvenile hall, trying to assess the viability of returning Isaac home. Isaac identifies no specific services that should have been provided and were not. We think the record adequately supports the court's finding on this point.
As Isaac acknowledges, a claim contesting a juvenile disposition is reviewed only for abuse of discretion, and we indulge all reasonable inferences to support the decision of the juvenile court. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330; In re Asean D. (1993) 14 Cal.App.4th 467, 473.) An abuse of discretion occurs when there is no substantial evidence to support the decision, as demonstrated by the record at the dispositional hearing. (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395; In re Martin L. (1986) 187 Cal.App.3d 534, 544.)
Given the discretionary nature of the decision, we find no error in this case. The judge stated on the record that it had considered all of the expert's reports in addition to the probation report and that it had thought "very, very hard and very long" about the case. We are impressed with the fact that the court not only heard Newman's testimony but reread it before making its disposition. Handwritten notes on Dr. Wornian's report also suggest the court gave careful consideration to it.
Isaac's argument is that the expert witnesses were more qualified than the probation officer to predict Isaac's future dangerousness and to opine on the best treatment for him. But the mere fact that the court declined to follow the advice of the defense experts is not dispositive. A trial court is not required to accept even unanimous expert opinion at face value. As long as the decision is not arbitrary, the trial court may reject the conclusion of an expert. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890; Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 632; People v. Sword (1994) 29 Cal.App.4th 614, 628-629.) Especially in these circumstances, where the experts' opinions were predictive of the future welfare of a minor and the risks he might pose to others, rather than an opinion regarding past facts, the trial court was not bound to accept the defense experts' opinions.
Moreover, social workers have frequently been recognized as experts in assessing risk and placement of children. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1427.) Viewed in that light, rather than "ignor[ing]" or "disregarding" the expert testimony as Isaac suggests , the court simply chose one expert's opinion in preference to the others. There was no lack of reason in making that choice. It is not an abuse of discretion for the trial court to give more credit to one expert's opinion than to another's. (People v. Venghiattis (1986) 185 Cal.App.3d 326, 333; Bullock's, Inc. v. Security-First Nat. Bk. (1958) 160 Cal.App.2d 277, 285.)
The decision in this case was not arbitrary or without support in the record. The juvenile court specifically rejected the testimony of Newman as "biased and incomplete," finding it a "conclusion in search of reasons or justifications." The judge questioned Newman's credibility because the factors brought out in cross-examination—some of which he had not known prior to testifying—possibly cast doubt on his recommendation. The court was concerned that Newman was "completely unaware of" "a number of critical issues" relating to Isaac's conduct. Newman refused to acknowledge any impact from such additional factors on his original recommendation. The judge believed Newman "discounted negative pieces of behavior," which caused him to doubt Newman's objectivity. The court specifically expressed concern that Isaac had been seen in the doorway of his room at juvenile hall holding his penis in his hand. Although the staff did not view it as an intentional sexual exposure, the incident was significant enough to the judge that he was concerned that Newman did not address it.
The court gave greater credence to Dr. Wornian's report but was disturbed, as noted above, that Isaac had not leveled with Dr. Wornian with regard to the seriousness of his conduct. The court believed this showed Isaac still had not accepted responsibility for his conduct. In addition, Dr. Wornian's tests showed Isaac's sexual discomfort level was quite high.
Finally, the court had difficulty agreeing with Dr. Wornian's conclusion that the offense was "spontaneous" rather than planned and was troubled by the doctor's observation that Isaac was given to impulsive behavior. Since the current crime was seen as the product of such impulsivity, the court worried that a lack of impulse control could lead Isaac to reoffend. The court found Wornian's comments about Isaac's impulsivity to be "distinctly at odds" with the doctor's prediction that he was at low risk to reoffend. Ultimately, the court was concerned not only with Isaac's best interests but with public safety.
We may agree for purposes of argument that an unreasoned rejection of expert testimony would be an abuse of discretion. (People ex rel. Brown v. Tri-Union Seafoods, LLC (2009) 171 Cal.App.4th 1549, 1567-1568; People v. Cross (2005) 127 Cal.App.4th 63, 73-75.) Here, as we have explained, the court's decision not to follow the defense experts' recommendation was not unreasoned or unreasonable and not an abuse of discretion.
DISPOSITION
The jurisdictional and dispositional orders are affirmed.
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Richman, J.
We concur:
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Haerle, Acting P.J.
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Lambden, J.