Opinion
F062361 Super. Ct. No. JW125662-00
01-19-2012
In re JORGE T., Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JORGE T., Defendant and Appellant.
Gabriel C. Vivas, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Wiseman, Acting P.J., Dawson, J., Kane, J.
APPEAL from a judgment of the Superior Court of Kern County. Louie L. Vega, Judge.
Gabriel C. Vivas, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On December 29, 2010, a juvenile wardship petition was filed pursuant to Welfare and Institutions Code section 602, alleging that appellant, Jorge T., committed multiple sex offenses. Jorge was charged with committing oral copulation on a minor incapable of giving consent (Pen. Code, § 288a, subd. (g), count one), committing a lewd and lascivious act on a child under 14 years of age (Pen. Code, § 288, subd. (a), count two), committing sodomy on a child four years old with a mental disorder, developmental or physical disability (Pen. Code, § 286, subd. (g), count three), committing sodomy on a victim under 18 years of age (Pen. Code, § 286, subd. (b)(1), count four), committing three counts of lewd or lascivious acts on a child under 14 years of age with force, violence, or duress (Pen. Code, § 288, subd. (b)(1), counts five, six, and seven). Count two was alleged to be a serious felony within the meaning of Penal Code section 1192.7, subdivision (c)(6).
Unless otherwise designated, all statutory references are to the Welfare and Institutions Code.
On February 25, 2011, an uncontested jurisdiction hearing was held in which appellant waived his constitutional rights and admitted count two as a serious felony in exchange for the dismissal of the remaining allegations. A contested disposition hearing was held on April 8, 2011. The juvenile court committed appellant to the California Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF), for a maximum term of confinement of eight years.
Appellant was advised, prior to entering his change of plea, that the juvenile court could refer to the dismissed allegations in determining the disposition of the case.
DJF was formerly known as the California Youth Authority (CYA). DJF was renamed by statutory enactment in 2005. (§§ 202, subd. (e)(5), §§ 1000, 1703, subd. (c), & 1710, subd. (a).) The DJF is part of the Division of Juvenile Justice. (Gov. Code, §§ 12838, 12838.3, 12838.5, 12838.13.) DJF is referenced in statutes, such as sections 731 and 733, that formerly referred to CYA. (In re N.D. (2008) 167 Cal.App.4th 885, 890, fn. 2.) In this opinion, we will use the name DJF uniformly, even when referring to older cases and statutes.
Appellant contends the juvenile court abused its discretion in rejecting treatment for appellant in Mexico, committing him to DJF, and for setting his maximum term of physical confinement at eight years. The California Supreme Court recently filed In re C.H. (Dec. 12, 2011, S183737) __ Cal.4th __ (C.H.). As a result of C.H., we must reverse the juvenile court's order committing appellant to DJF and remand for a new disposition hearing.
Appellant also challenges the juvenile court's determination of the maximum term of confinement. In light of our ruling, the juvenile court's selection of the maximum term of confinement is now moot and we do not reach that issue.
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FACTS
On December 26, 2010, at 6:25 p.m., police officers from the Arvin Police Department were dispatched to investigate allegations regarding a lewd and lascivious act on K., who was four years old. K.'s mother, M.H. was contacted by the officers. M.H. had left K. home with appellant because K. was sleeping. A few minutes later, M.H. received a call from an adult friend, A.V. A.V. could not find K. or appellant. A.V. discovered a locked door and asked why it was locked.
A few moments later, appellant opened the door for A.V. A.V. saw K. pulling up her pants. Because K. looked scared, A.V. asked her what happened. K. said appellant kissed her on the mouth and vagina. A.V. detected the presence of semen on the comforter on the bed.
K. told M.H. that appellant took off his pants and put his "wee-wee" into her "butt." M.H. examined K. and found no bleeding but noticed her rectum was red and slightly swollen. K. explained that appellant did something with his penis and her rectum and it was still hurting her. When shown a drawing of a nude female by officers and asked where appellant touched her, K. pointed to the vagina in the drawing. K. said appellant touched her there with his mouth.
When officers asked where else appellant touched her with his penis, K. pointed to the buttocks on the drawing. K. said she only took off her pants. After his arrest, appellant denied doing anything other than playing with K. Appellant said he went into K.'s room and she told him she wanted to play "Mommy and Daddy." Appellant claimed K. lowered her pants and then A.V. arrived, entered the room, and saw K. pulling up her pants.
Appellant said he did kiss K. and a sibling on the cheek earlier in the day. Appellant admitted there was semen on the comforter. According to appellant, it just came out of him and he did not know why. Appellant denied putting his penis on or in K.'s buttocks.
Appellant then said he would tell the truth, but he was afraid. Appellant said he hugged and kissed K. and took off her pants and underwear. Appellant said his pants were already stained with semen. Appellant said he placed K. on top of his chest and kissed her once. Then appellant said K. took off her pants and he touched her buttocks with his hands. Appellant's penis was sticking out of his boxer shorts as K. laid on top of him and her private part made contact with his penis. Appellant said he took K. off of him.
Appellant admitted investigators would find his semen on K.'s vagina. Appellant admitted kissing the victim on her upper buttocks and lower back. Appellant said he did not know what he was doing and it got out of hand. Appellant admitted touching and trying to enter the victim's vagina with his penis, making thrusting motions, and ejaculating semen after the victim got off of him.
DISPOSITION HEARING
DIF Report
Reports were prepared for the disposition hearing by the Mexican Department of Family Services (DIF) and the probation department. The DIF evaluation noted appellant could live in Mexico with his father and teenage siblings. Appellant could receive professional help and rehabilitation for sexual offenders in Mexico from the Department of Childhood Protection and the Program for Fighting Child Sexual Exploitation. These programs could provide counseling and psychological treatment depending on the minor's evaluation/assessment.
A forensic evaluation was conducted on appellant by Dr. Eugene Couture. Appellant reported that his parents live in Mexico and are separated. Appellant has three sisters and two brothers ranging in age from nine to 18. The siblings live either with their father or their mother. Appellant came to the United States alone because he was curious and wanted to visit this country. Appellant did not pass second grade and by age 12 left school altogether. Appellant denied using drugs or alcohol and denied any gang affiliation.
Appellant denied being molested and denied having sexual intercourse with anyone in his life. Appellant denied doing anything inappropriate with the victim and denied attempting to have sex with her. He denied kissing the victim inappropriately. Although appellant understood right from wrong, he was "not so aware of victim empathy." Appellant did not appear to Dr. Couture to have premeditated the molestation of the victim.
Appellant told Dr. Couture that he was not interested in sexuality and denied any history of aggressive behavior. Appellant did not appear to have any mental disorder. Appellant's thinking was rational and, in Dr. Couture's opinion, he was competent to stand trial and could understand legal procedures and assist his attorney.
Appellant had inconsistent parental supervision, living off and on with each parent. Appellant's mother gave him permission to come to the United States with neighbors. Dr. Couture did not believe appellant appeared to be a predator, although he did engage in playing with children much younger than him. Dr. Couture believed appellant needed counseling. Appellant was not sophisticated enough to understand the ramifications of his wrongdoing. Appellant had not had appropriate supervision in Mexico with either his father or his mother.
Dr. Couture concluded appellant did not appear to be at a high risk to reoffend and that placement in DJF could be detrimental to appellant. Dr. Couture did not believe appellant should be placed in a home where young children reside. Appellant could receive sex offender counseling in Kern County. In this country, however, appellant did not have adequate supervision and would need to be referred to a group home. Appellant could also be sent back to Mexico to reside with his parents.
The DJF evaluation also included the Sixteenth Report of the Special Master concerning the state of rehabilitation services at DJF. The report noted that there were improvements with services provided at DJF, as well as areas requiring further improvement.
DIF included a letter from the director of the DIF system in appellant's community. The director explained that appellant could attend the Commercial Child Sexual Exploitation Program, which works by building up alliances within the family, promoting active participation in the formative development of children, and channeling government agencies in order to provide an integral approach to benefit the adolescent child. This could not be accomplished, however, without first examining the victim or the aggressor.
Probation Report
The probation officer reported that appellant waited until the victim's mother left the residence and there were no other adults present before preying on the victim. Appellant showed little empathy for the victim and did not understand the wrongfulness of his actions. Appellant believed he was just playing a game with the victim and that he had no sexual ideations during the offense. The probation officer believed appellant was "in dire need of intensive individual and group juvenile sex abuse offender counseling."
In consideration of commitment to a local program, the probation officer noted that Camp Erwin Owen and the Kern Crossroads Facility were inappropriate because neither program includes individual or group counseling to specifically address juvenile sexual offenders. The probation officer also considered having appellant deported back to Mexico to participate in DIF programming. The DIF report indicated appellant could get professional help and rehabilitation for sexual offenders in Mexico. The report, however, did not state what type of supervision or services would be offered. There was no indication as to the extent of counseling and psychological treatment that would be offered.
Appellant told Dr. Couture that he went back and forth between his mother and father. There was no guarantee appellant would stay with his father and there were young children living with appellant's mother. Because the appellant failed to understand the severity of his actions, the probation officer felt there was a greater likelihood that he would reoffend. Because the minor successfully smuggled himself illegally into the United States, the probation officer believed appellant was a greater flight risk and may attempt to reenter the United States should he receive out of home placement.
The probation officer believed appellant's rehabilitation would be most appropriately served by a commitment to DJF. DJF had a residential sex offender treatment program at two locations. Appellant would receive an individualized treatment plan and levels of treatment for inappropriate sexual behavior. Appellant would receive individual therapy, as well as support work in a group setting. Appellant would also have access, in DJF, to psychological/educational resource groups and ancillary treatment strategies to help him develop the capacity of self-awareness and self-reflection. Appellant would also receive education at DJF. The probation officer believed that appellant's commitment to DJF was the best way for him to receive the treatment he needed, in a secure environment, so he would no longer possess a threat to his victims or the community. A representative with Immigration and Customs Enforcement told the probation officer that they would put a hold on appellant so when he was released from DJF, they could facilitate appellant's deportation back to Mexico with the help of the Mexican Consulate.
Hearing
The juvenile court stated that it had considered the report from DIF, the special master's report on DJF, and the probation department's report. The court also read Dr. Couture's report that specifically indicated appellant should not be placed in an environment with other minors. The court observed that there were young minors in appellant's family. The court found appellant's amenability to rehabilitation, as well as his and the community's best interests, would be best served by commitment to DJF. At DJF, appellant would be segregated by age and size.
Defense counsel argued appellant's maximum term of confinement should be two years given his young age. Also, appellant could continue to receive services in Mexico. The court stated it needed to give flexibility to the program at DJF and was not going to restrict appellant's confinement to two years. The prosecutor argued that it would be better to set the maximum term of confinement to eight years and let DJF determine appellant's progress. The court found this point to be well taken.
The court set appellant's maximum term of confinement at eight years. The court found that the mental and physical condition of the appellant were such as to render it probable that he would be benefited by the reformatory educational discipline or other treatment provided by DJF.
COMMITMENT TO DJF
Appellant contends the trial court abused its discretion by not sending him to Mexico to receive services and for failing to show that less restrictive alternatives to a DJF commitment would be inappropriate. The California Supreme Court filed C.H., supra, __ Cal.4th __ . C.H. holds that where a juvenile offender has an adjudication for Penal Code section 288, subdivision (a), and no prior sustained petition for a violation of a section 707, subdivision (b) offense, the minor cannot be committed initially to DJF. This issue was not raised by the parties. Pursuant to Government Code section 68081, we requested additional briefing on the effect of C.H. on the instant action.
The appellant replied, arguing C.H. was dispositive here because he had no prior sustained petition for a section 707, subdivision (b) offense and that the only sustained allegation in the current petition was for a violation of section 288, subdivision (a). Respondent's response concedes that C.H. compels reversal of the juvenile court's disposition. We are bound by the decisions of our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
For the reasons explained in C.H., we find that the trial court did not have the statutory authority to commit appellant to DJF based on a single sustained allegation that he violated section 288, subdivision (a). Accordingly, we reverse the juvenile court's order committing appellant to DJF.
DISPOSITION
The juvenile court's order committing appellant to DJF is reversed and the case is remanded for the juvenile court to conduct a new disposition hearing.