Opinion
H045043
08-27-2018
In re N.J.B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. N.J.B., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 3-16-JV-42124A)
N.J.B. (N.B.) appeals from a disposition order committing him to the California Department of Corrections and Rehabilitation, Division of Juvenile Facilities (DJF). (See Welf. & Inst. Code, §§ 602, 725, subd. (b), 731, subd. (a)(4), 800.) After N.B. admitted that he committed a forcible lewd and lascivious act, the juvenile court held a contested disposition hearing and adjudged N.B. a ward of the court. (Welf. & Inst. Code, §§ 602, 725, subd. (b), 731, subd. (a)(4), 800.) At the time of disposition, N.B. was 20 years old. The juvenile court rejected the probation department's recommended disposition for probation supervision and outpatient sexual offender counseling and instead ordered a DJF commitment.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
The sole issue on appeal is whether the juvenile court abused its discretion by ordering a DJF commitment. N.B. asserts that no evidence established that a commitment to the DJF would benefit him and less restrictive alternatives would not benefit him. Defendant requests that this court remand the matter for a new disposition hearing.
"Commencing July 1, 2005, the establishment, organization, jurisdiction, powers, duties, responsibilities, and functions of the Youth Authority as provided in the Youth Authority Act (Chapter 1 (commencing with Section 1700) of Division 2.5 of the Welfare and Institutions Code), as it existed on June 30, 2005, are continued in the Department of Corrections and Rehabilitation, Division of Juvenile Facilities." (Pen. Code, § 6001.) "Commencing July 1, 2005, any reference to the Department of the Youth Authority in [the Welfare and Institutions Code] or any other code refers to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities." (§ 1710, subd. (a).) The Department of Corrections and Rehabilitation comprises multiple divisions, including a division of "Juvenile Justice" [DJJ]. (Gov. Code, § 12838, subd. (a).) Oftentimes, courts and others use the terms DJF and DJJ interchangeably in the context of committing a ward of the court. (See e.g. In re J.C. (2017) 13 Cal.App.5th 1201, 1204, fn. 2; In re J.L. (2008) 168 Cal.App.4th 43, 47, fn. 1.]) We will substitute "DJF" for statutory or case law references to the California Youth Authority or CYA and for references to the DJJ.
We conclude that the juvenile court did not abuse its discretion and affirm.
I
Procedural History
A juvenile wardship petition was filed against N.B. on December 8, 2016. It alleged five counts of committing a forcible lewd and lascivious act upon a child under 14 years old in violation of Penal Code section 288, subdivision (b).
Over a year earlier, on November 2, 2015, a felony complaint was filed against N.B. in adult court. It alleged five counts of committing a forcible lewd and lascivious act against a single victim under the age of 14 years during specified time periods in 2013 and 2014 when N.B. was 16 years old and contained an allegation under former section 707, subd. (d)(1). In November 2016, the voters approved Proposition 57, the "Public Safety and Rehabilitation Act of 2016." (Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 57, § 1, p. 141; People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303 (Lara); see also former Cal. Const., art. II, § 10, subd. (a) [effective date].) "Proposition 57 prohibits prosecutors from charging juveniles with crimes directly in adult court. Instead, they must commence the action in juvenile court. If the prosecution wishes to try the juvenile as an adult, the juvenile court must conduct . . . a 'transfer hearing' to determine whether the matter should remain in juvenile court or be transferred to adult court. Only if the juvenile court transfers the matter to adult court can the juvenile be tried and sentenced as an adult. (See Welf. & Inst. Code, § 707, subd. (a).)" (Lara, supra, at p. 303, fn. omitted.) The Supreme Court has held that "this part of Proposition 57 applies to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted." (Id. at p. 304.) In this case, the trial court issued a "Juvenile Certification and Order," filed December 5, 2016, suspending the criminal proceedings pursuant to Proposition 57. On December 9, 2016, the juvenile court accepted the certification and detained N.B. under juvenile law.
On June 1, 2017, the date calendared for a judicial transfer hearing to adult court, the parties agreed that count one of the juvenile wardship petition would be amended to allege that the forcible lewd and lascivious act occurred during a specified time frame in January and February 2013 when N.B. was 15 years old and the victim was approximately seven years old, that N.B. would admit the count, and that the matter would be set for a contested disposition hearing in juvenile court. An admission and waiver form containing advisements, stipulations and declarations, initialed and signed by N.B., was filed. N.B. admitted the amended count 1. The parties stipulated that there was a factual basis for count 1 as amended. The juvenile court found that N.B. had "made a knowing and voluntary waiver of [his] constitutional rights" and accepted his admission. It found that the admitted count was a felony offense and an offense under section 707, subdivision (b).
A probation report, dated June 22, 2017, was prepared by Joseph Maningo, a Santa Clara County deputy probation officer, for the disposition hearing in this case. It indicated that the offense had come to light when the victim, N.B.'s younger sister, was interviewed by police at her elementary school in October 2015. The interview was precipitated by a report of child abuse. A child protective services social worker, who was investigating a possible case of neglect, was also present at the school that day.
According to the probation report, the victim, who was N.B.'s only sister and nine years old when interviewed in October 2015, disclosed to authorities that she had been sexually abused by N.B. on multiple occasions approximately two years earlier. She said that N.B. had gone into her bedroom early in the morning, taken off her clothes, undressed himself, " 'fiddle[d]' with her 'private parts' and showed her his 'privates.' " She had told N.B. that she did not like it, but he had acted "like he did not hear her." She reported that N.B. had "instructed her not to tell anyone because he did not want to get in trouble." She recalled five incidents but stated that after she had reported the molestation to her parents, the touching had stopped.
The report disclosed that the victim also revealed that another older brother, L., had engaged in inappropriate conduct involving her feet on 10 occasions, the most recent of which had occurred only a couple of weeks earlier. When L. was interviewed, L. admitted that he had a "foot fetish" and that he had massaged the victim's feet and dripped melted wax on her feet while the two of them were in his closet.
When N.B. was interviewed by Morgan Hill police, N.B. indicated that he had learned about " 'BDSM' (Bondage, Dominance, Submission, Sadomasochism)" on the Internet and that he liked bondage because "it reminded him of the 'damsel in distress.' " He admitted that, two to three years before, he had gone into his younger sister's bedroom and touched her. He expressed regret for what he had done to her. N.B. indicated that he had tied his sister's hands and feet together but had not hurt her or inflicted pain. He had touched her "naked vagina" with his hands. He recalled that on one occasion he had attempted to insert his penis into her vagina but realized that it would not fit and had stopped. He acknowledged that he had rubbed his penis on his sister's "naked vagina to the point of ejaculation," masturbated in front of her, and had her touch his penis.
According to N.B., his sister had "told him to stop on two to three occasions" and he had stopped. He stopped the touching altogether because "he realized it was probably wrong" and his father had "the 'talk' with him during a camping trip" based on a guide called "Passage to Purity." Since that conversation with his father, N.B. had had "to 'fight his urges' and avoid his sister." At the end of the police interview, N.B. agreed to write an apology letter to the victim and his parents. In the letter, N.B. stated, "[T]here was [sic] a couple of times when I was younger that I followed my passions and unfortunately touched [my sister] inappropriately which has been my biggest regret that's [sic] haunted me and still haunts me now." He said he was "deeply sorry."
N.B.'s father told Maningo that he had spoken with N.B. after N.B.'s sister had disclosed inappropriate behavior by N.B., which the father had understood to involve looking but not touching, and N.B. had been " 'clearly ashamed of his behavior' and apologized." N.B.'s father pinpointed the "weekend trip to review the 'Passage to Purity' curriculum" as having occurred on February 1 to 3, 2013.
The probation report indicated that N.B. had been coping with certain external stressors when he was 15 years old, including the sudden death of his maternal grandmother in 2010, which N.B. had described as "a 'big blow' to the family," his "parent's issues," and bullying at school. N.B. had indicated that his mother had reacted emotionally to his grandmother's death for over a year and that his father had not known how to provide emotional support to his mother. N.B.'s mother had also indicated that her mother's death was a traumatic event. N.B.'s father had been laid off in February 2012, had found some contract work, had been unemployed for a period, and had gone to work for a company in San Diego in July 2015 and had come home every other weekend.
The probation report indicated that N.B.'s mother told Maningo that N.B. had not presented any behavioral issues before the offense. According to his mother, N.B. " 'got along' " with other family members, and he complied with "house rules." She indicated that as to discipline, it did not take much to correct his behavior. N.B.'s mother approved of his "peer group," most of whom were part of their church's youth group. N.B's few school friends shared "the same interests such as 'trains and video games.' " N.B.'s father reported that N.B. "attended school, participated in church activities and was 'well behaved' at home." Both parents had described N.B. as compliant.
The report indicated that after the disclosures of N.B.'s sister to authorities, N.B.'s five younger siblings had been taken into protective custody. N.B.'s five younger siblings were declared dependents of the juvenile court. N.B. had been taken to county jail and he was eventually housed in the Elmwood Correctional Facility, where he still was when the probation report was prepared.
The probation report disclosed that during a follow-up police interview of N.B.'s sister in November 2015, his sister reported that the molestation by N.B. had taken place in her bedroom and in N.B.'s bedroom closet and N.B had locked her closet door so that she could not leave. She said that N.B. had touched his private parts in front of her, " 'wiggled it,' " and rubbed her vagina. She disclosed that it had happened seven to nine times and that N.B. had given her candy after he touched her. But she denied that N.B. had attempted to put his penis in her vagina. His sister reported that after she told her parents about the touching, her father had spoken with N.B. in his room, and the touching never happened again.
According to the probation report, N.B. shared extensive information about his social history with Maningo, but N.B. invoked his Miranda rights as to the alleged touching. The report indicated that he had said that he had viewed "the 'dark side' (pornography)" on the Internet approximately five times. After discovering that activity, N.B.'s father had put in place safeguards and moved the computer to a common area for supervision purposes. N.B. had expressed regret for viewing "pornographic material" and understood "it was 'wrong.' "
As the result of the family's progress and fulfillment of the dependency case plan, which included counseling for the victim and N.B.'s parents, the dependency case was terminated and four of N.B.'s siblings were returned to parental custody. In June 2016, N.B.'s younger brother, L., was granted a deferred entry of judgement (DEJ) in a delinquency case based on his felony violation of Penal Code, sections 236/237 (false imprisonment) and his misdemeanor violation of section 647.6, subdivision (a) (annoying or molesting a child under 18 years of age). As part of the DEJ program, L. attended sex offender counseling, and he successfully completed the DEJ program in June 2017.
The report indicated that N.B.'s parents had given Maningo permission to speak to their daughter but requested that he not ask questions pertaining to the allegations because she had already been interviewed multiple times and they were concerned with "possible re-victimization." When interviewed in March 2017, N.B.'s sister, then a fifth-grade student, indicated that she had adjusted well since returning to parental custody. She had friends and was happy overall with her home, school, and social life.
According to the probation report, N.B.'s parents had proposed three out-of-home placement options for N.B.: (1) a room in the Santa Clara County home of fellow church members; (2) an apartment that would be rented by the family in San Jose or in the city where N.B.'s father was then working out of the area, and as a "last resort," (3) the residence of a maternal aunt and uncle who lived out of the area in California.
The probation report summarized the mental health evaluation conducted by Dr. Francesca Lehman, a licensed clinical and forensic psychologist. She had conducted a three-hour clinical interview and administered a "Personality Assessment Inventory." The psychologist's report explained that there was no risk assessment tool, not even the Static-99R or the JSORRST-II, that could be properly used to evaluate N.B. given his age at the time of the alleged offense (15 years old) and his age at the time of evaluation (19 years old). JSORRST-II risk assessments expired at 18 years of age and had not been validated for assessing risk of reoffending beyond that age.
The probation report indicated that N.B. had reported to the psychologist that he had been "acting out a rescue fantasy, rather than trying to incapacitate his sister to gain compliance." The offenses had "clearly occurred within the context of a dysfunctional home environment . . . ." Further, "based on [N.B.'s] developmental immaturity, he was likely at a much younger developmental level than his chronological age." She found "no indication [N.B.'s] sexual misconduct [was] compulsive or resistant to reasonable intervention that can be arranged through the Juvenile Justice system." The psychologist had found it important that N.B. had "desisted from the sexual conduct with minimal intervention and had not abused his sister for two years before his arrest, indicating the behavior was neither predatory nor compulsive."
Even though the psychologist found "certain aspects of the offense [were] jarring," she determined N.B. posed a low risk for reoffending. She "strongly recommended" more thorough evaluation of N.B.'s "psychosexual functioning and development" to determine whether "treatment goals in this area are warranted." Her concerns included N.B.'s developmental immaturity and his social awkwardness. She indicated that N.B. had "presented with aspects of a mild form of 'Autism Spectrum Disorder,' " not amounting to a diagnosable disorder but affecting his social interactions. In her opinion, those concerns "would be best managed through 'out-patient' treatment that include[d] both individual and group treatment that [was] specifically designed for individuals with a history of sexual misconduct." She strongly urged the court to view N.B.'s misconduct in light of his age at the time of its commission and his developmental immaturity.
The probation report indicated that a JAIS (Juvenile Assessment and Intervention System) evaluation identified N.B.'s criminogenic needs/risk factors as social inadequacy, "isolated-situational," and emotional. The evaluation determined that his risk to recidivate was low and that the appropriate supervision strategy was selective intervention (SI). The report stated: "According to the JAIS, SI youth 'tend to be distinguished by positive, pro-social adjustment and the absence of significant behavior problems prior to an abrupt onset of delinquency. . . . Initially, delinquent behavior for these youth occurs in response to an external stressor or to a core emotional problem. . . .' "
In the probation report, Maningo explained that due to N.B.'s age, N.B. was ineligible to participate in the PEAK (Providing Education, Alternatives, and Knowledge) or EDGE (Encouraging Diversity through Growth and Education) programs. For the same reason, he was not eligible for a commitment to a juvenile rehabilitation facility and could not be screened for a short-term residential treatment program. The probation report observed that a commitment to the DJF was a "viable option" because the admitted offense was a section 707, subdivision (b), offense. Nevertheless, the option was "deemed inappropriate" by Maningo because of N.B.'s age at the time of offense, his ability to desist from further offense with minimal family intervention, the mental health evaluator's recommendation, and the JAIS assessment.
Maningo had contacted Dr. Edward Momrow, who provided sexual offender counseling for the Santa Clara County Probation Department. In Dr. Momrow's opinion, N.B. could complete the treatment program before his 21st birthday if N.B. was willing to attend more than one session per week. Dr. Momrow had told Maningo that N.B. would be provided an individual treatment plan based upon an initial assessment. He explained: "Treatment plans include identifying the therapist's role, parent's participation, identifying goals, understanding the offense, submitting a letter of apology to the victim, completing 'my life story,' understanding health sexuality, errors in thinking, participating in scenarios, pro-social thinking, completing a relapse prevention plan, understanding emotions, and reviewing lessons and insights the subject has learned."
The report stated that N.B. was in 12th grade when he was arrested in October 2015. In high school, N.B. had earned 175 credits toward a high school diploma and had an overall grade point average of 2.41. While in custody, N.B. had been eligible to participate in PACE ("Program About Change and Experience"), which offered GED preparation, parenting classes, job readiness courses, and self-assessments, but he had not requested any programming. According to N.B.'s attorney, N.B. had participated "in daily bible studies and completed a 'Leadership Program' " provided by the Elmwood Correctional Facility's chaplain.
The probation report recommended, partially based on the low risk of reoffense as determined by the mental health evaluation and the JAIS assessment, that the court adjudge N.B. a ward of the court and order intensive outpatient sexual behavior therapy. The report stated: "To his credit, [N.B.] demonstrated the ability to refrain from inappropriate sexual behavior given the fact he desisted from continuing said behavior for two years, despite minimal intervention previously utilized by the parents and with even less supervision in the home (as the father was [at the time] working in San Diego). This suggests [N.B.] is capable of making safe and rational decisions."
In addition, the probation report recommended 60 days of electronic monitoring on the Electric Monitoring Program (EMP) and certain terms and conditions of probation. They included but were not limited to N.B. completing sexual behavior therapy, attending school or vocational training or maintaining full-time employment, complying with a nighttime curfew, "not knowingly [being] within his arm's reach of any minor twelve years of age or under in any non-public place unless he [was] under competent adult supervision and [was] within the sight or hearing range of that adult," and not intentionally having "contact of any type" with the victim, his sister.
In June 2017, a contested evidentiary hearing regarding disposition was held. The People called Maningo to testify. He admitted that he had no medical background and no training in psychology, psychiatry, or related fields. He had an undergraduate degree in sociology from U.C. Berkeley. This delinquency case was the first case involving sexual assault that he handled through disposition.
Maningo testified that he had not taken undergraduate classes on child molestation and he had never read any literature on recidivism in sex offenders. He had received eight hours of training on sexual assault as part of his initial core training for the probation department. He had not had the opportunity to read the other sexual assault police reports, and he had not learned from his training or experience that it was "not uncommon" for a victim's "allegations to become either increasingly serious" or more numerous once the victim came forward and talked more.
Maningo had been involved in N.B.'s case since December 2016. Maningo testified that N.B. had declined to speak with him about the charges, but N.B. had talked about his social history, which included viewing Internet pornography. N.B. had told Maningo that he began viewing pornography on a computer when he was in eighth or ninth grade. Because N.B. invoked his Miranda rights, Maningo had not spoken to N.B. about whether he still had sexual urges toward his younger sister or how he currently dealt with such urges.
Maningo acknowledged that during the probation department's interview of the victim, who was 11 years old at the time of the hearing in 2017, he had not asked any questions about the alleged offenses to avoid retraumatizing her. He had not watched her police interview. The victim had been nine years old when she reported N.B. had molested her approximately two years earlier.
Maningo confirmed that the police report indicated that N.B. said he stopped molesting his sister when he realized it was probably wrong and his father had "the talk" with him during a camping trip. The talk was conducted using "Passage to Purity," a conservative Christian sexual education training guide. But Maningo had not spoken to N.B. about "the talk" or the "Passage to Purity." Maningo understood that the parents had not allowed N.B. to attend sexual education in the public school and that the trip to review "Passage to Purity" had taken place the weekend of February 1 to 3 2013.
Maningo learned from the police report that even after N.B. had received the "Passage to Purity" guidance from his father, N.B. had struggled with, and had to fight, his sexual urges, and he had had to avoid his sister. But the police report did not clarify what N.B. meant by "urges." Maningo agreed that having impure thoughts, masturbating, and viewing pornography were all be discouraged in Christian-based sexual education. Maningo had no evidence that N.B. had viewed child pornography or that N.B. had ever used illegal substances.
N.B. had told Maningo that he had been bullied in middle and high school. Maningo learned that N.B. had started a railroad club at school with friends who shared his passion for model trains. N.B. had two close friends, one of whom was autistic. N.B. had a brother who was on the autism spectrum.
Maningo testified that reports indicated that the victim had told her mother about what N.B. had done and then their father had spoken to N.B. The reports also indicated that N.B. had not engaged in any further lewd and lascivious acts after his father had spoken to him. After being taken into protective custody, the victim had received mental health treatment and counseling until December 2016. The dependency case was terminated and N.B.'s siblings were returned to parental custody.
Maningo testified that while N.B. was in custody in Elmwood Correctional Facility, N.B. had not taken advantage of any PACE programming, which focused on GED preparation, parenting, job readiness, and self-assessment. N.B. had not asked for or received any sexual assault counseling or treatment during his two years of custody. On cross-examination, Maningo clarified that sex offender therapy or programming had not been available in jail and that N.B. would not have benefitted from a parenting class. He also believed that it would be preferable for N.B. to obtain a high school diploma rather than a GED. N.B. had participated in daily bible studies and a leadership program provided by the chaplain.
At the time of the disposition hearing, Maningo confirmed that N.B.'s mother and his five younger siblings were living in another state and his father was living out of the area. Maningo had not communicated with the authorities in that other state and he did not know the situation there.
In recommending a disposition, Maningo had considered the report by Dr. Lehman. Maningo understood that she had been retained by the defense to keep N.B. out of the adult criminal system, and he had factored that into his evaluation of her opinion. He recognized that even she had found certain conduct "jarring." Maningo also acknowledged that the JAIS assessment tool does not specifically address the likelihood of a sexual offender reoffending.
Maningo acknowledged that N.B. had recently turned 20 years old and that the juvenile court would have jurisdiction over N.B. only until his 21st birthday if, impliedly, the court placed N.B. under the supervision of a probation officer. Due to N.B.'s age, he was ineligible to participate in the PEAK program, and in any case, it was not a sexual offender program. He was also ineligible for placement at the juvenile ranch, where an eligible ward could receive sexual assault counseling or education.
Maningo agreed that N.B. would receive sexual assault counseling if the court committed him to the DJF. He understood that the DJF's sexual counseling program for sexual offenders was "a quality program." In addition, the DJF could retain jurisdiction over N.B. until his 23rd birthday. Although Maningo had considered a commitment to the DJF "a viable option," he had decided not to recommend it for multiple reasons, including N.B.'s age at the time of offense, Dr. Lehman's mental health evaluation, N.B.'s apparent ability to desist from further sexual molestation of his sister during the two years he was still in the home after being counseled by his father, and the goal of rehabilitation.
But Maningo agreed that N.B.'s conduct was closer to the "extreme end of the spectrum" of seriousness as to sexual offenses because the victim had been tied and bound and he had skin-on-skin contact with the victim. Maningo conceded that N.B. had no opportunity in custody to have contact with little girls and that he could not predict how N.B would react to being alone with a minor. Despite the seriousness of the case, Maningo still believed that the appropriate disposition would involve treatment in the community.
Maningo indicated that under his recommendation, N.B. would participate in the EMP for 60 days and he would be provided sexual offender counseling through Santa Clara County probation department. Maningo had learned from speaking to Dr. Momrow that N.B. had ample time to complete the 52-week sexual offender program before he turned 21 if he put effort into attending the program once or twice a week. Dr. Momrow advised that a cooperative and motivated probationer could finish the program in less than 52 weeks, and he was willing to facilitate that schedule for N.B. Maningo acknowledged that N.B.'s ability to complete the program would depend upon his desire to do so and the effort he made.
Maningo confirmed that if N.B. cut off his EMP bracelet or failed to put out sufficient effort to timely complete the counseling program, his behavior would be treated as a probation violation. He agreed that in the event N.B. violated probation, a commitment to the DJF would become an option.
Maningo indicated that there had been several options proposed for housing N.B. during the EMP period, including placing N.B. with a church friend, renting an apartment for him and his father, and placing him with an aunt and an uncle who lived out of the area. But Maningo had learned that the first and third options were no longer viable, in part because the aunt and uncle were going on vacation. An apartment was still an option, but no apartment had yet been rented. N.B.'s father would continue to work while N.B. was participating in the EMP, but he could work remotely. The family was also exploring Victory Outreach in Gilroy as a possible placement for N.B. Maningo confirmed that N.B. would not be released until appropriate housing was secured.
Maningo indicated that N.B. had ties to the community even though his immediate family had moved away because he had gone to church and high school in Santa Clara County, he had had friends while at school, and he had a grandfather in a nearby city, a grandmother in Alameda County, and an uncle not far away. In the EMP, N.B. would be able to go to treatment, school, church, and the probation department.
Maningo conceded that placement of N.B. on the EMP would not disallow him from using electronic devices such as computers, tablets and phones or having access to the Internet. Maningo was aware that N.B. had a history of searching the Internet at home for pornography and BDSM materials, which Maningo confirmed referred to "bondage, dominance, submission, and sadomasochism."
Maningo explained that probation supervision would involve a probation officer's personal contact with N.B. at least once a month for an hour at most, either at the probation department or in N.B.'s home. Maningo acknowledged that "[o]bviously" he was not personally "going to be able to enforce" the recommended probation condition prohibiting N.B. from knowingly being within arm's reach of a minor who was 12 years or under in a nonpublic place without adult supervision.
After the 60-day EMP period, Maningo contemplated that N.B. would be granted permission to live independently, apart from his parents, perhaps in his own apartment. Maningo indicated that he was recommending that N.B. live independently from his parents, in which case, he would not have parental oversight. The other possibility involved N.B. living with his aunt and uncle out of the area. Maningo understood from speaking with N.B.'s parents that there were no parks or schools around the aunt and uncle's home.
Maningo knew, based on his training, that juvenile sex offenders who received treatment were at low risk to reoffend. He agreed that a juvenile is more likely to successfully complete probation conditions where parents support the probation department and the process. N.B.'s five siblings had been removed from the home in dependency proceedings after allegations of molestation. One of N.B.'s brothers had successfully completed sex offender counseling with Dr. Momrow as part of the DEJ program. The family members had successfully completed required counseling in the dependency case, the children had been returned to their parents, and the dependency case had been closed.
Maningo testified that his interactions with N.B. did not indicate that N.B. would defy authority. There was no family problem of substance abuse or domestic violence.
Guadalupe Ramirez was called as a witness on behalf of N.B. She was a social worker employed by the Public Defender's Office. She indicated that if N.B. were released, she would be able to support him and his family with his transition back into the community, including connecting with medical insurance. She indicated that, as part of a transitional discharge plan from Elwood, N.B. had received a referral for re-entry services, which would include Medi-Cal and employment services. Ramirez stated that N.B.'s family already had a connection to Families First, EMQ, which was his first option but that Santa Clara County had "an array of providers that accept Medi-Cal." Ramirez testified that she could assist with obtaining referrals for behavioral health services in addition to counseling with Dr. Momrow, securing appropriate housing, enrolling in an adult program to complete a high school diploma, and subsequently entering community college. She would be available to assist him in assessing his needs and would try to answer any questions or help with any problems he might have.
According to Ramirez, N.B.'s family had indicated that it would provide financial support so he could use public transportation. Ramirez could help N.B. obtain "an I.D. that could potentially lead to hi[s] obtaining [of] a driver's license . . . ." Ramirez indicated that the immediate housing plan was for N.B. to live with a parent in his aunt and uncle's home while they were away for approximately a month and for that parent to temporarily drive N.B. to Santa Clara County.
Ramirez worked "hand in hand" with the re-entry center to ensure clients' needs were met. In this case, she had contacted the Elmwood rehabilitation officer so that N.B. could obtain a referral to services before his release. The rehabilitation officer had already spoken with N.B., assessed his needs, and provided a transitional discharge planning report.
Following the testimony at the disposition hearing, the prosecutor argued that N.B. did not have adequate plans in place for a support system, housing, transportation, employment, supervision, or food and clothing. He contended that N.B.'s access to electronics and the Internet were a primary concern in light of N.B.'s fantasies that he had acted upon. He argued that Maningo had "zero experience" with juvenile sexual assault and minimal, if any, training on the subject. He pointed out that Ramirez was an employee of the Public Defender's Office and that Dr. Lehman was clearly retained by the defense. The prosecutor asserted that N.B. had engaged in a continuing course of predatory sexual conduct that involved sneaking into his sister's room at night, tying and binding her, attempting to insert his penis into her vagina, and disregarding her repeated requests that he stop. The prosecutor maintained that N.B. had understood what he was doing was wrong because he had told his sister not to tell. He urged the juvenile court to commit N.B. to the DJF based on the gravity and seriousness of the crime in order to protect community safety.
Defense counsel reminded the court of the standard for commitment. She argued that the prosecutor had presented no evidence to suggest that N.B. posed a high risk of reoffending. She pointed out that N.B. had refrained from reoffending without treatment, and she suggested that his parents had demonstrated their ability to support probation in that they successfully complied with the dependency case plan and supported L.'s successful completion of the DEJ program. Defense counsel argued that N.B.'s sexual misconduct was opportunistic rather than predatory and certainly was not compulsive since it ceased after minimal intervention by his father. She emphasized that the People had presented no testimony to the effect that a commitment to the DJF was a more appropriate disposition than supervised release into the community with sexual offender therapy. She argued that Dr. Momrow was a "perfect fit" to provide such therapy because he was already up to speed on the familial issues. She recommended that the court accept the probation department's recommendation, especially since the court would have the opportunity to send N.B. to the DJF if he failed to follow through with his treatment in the community.
On July 5, 2017, defense counsel objected to the juvenile court's tentative disposition of a DJF commitment. She clarified that the parents were willing to ensure that one of them would be with N.B. for the first 60 days and they were willing to pay for Uber transportation after the initial 60 days. She told the court that Dr. Momrow had indicated that he could complete N.B.'s therapy in as little as six months. The family had also located a "faith-based group sexual behavioral therapy treatment" in which N.B. could participate through Skype. She argued that the risk posed by N.B. to community safety if released into the community for outpatient treatment was low whereas a commitment to the DJF would "saddle him" with lifetime sex offender registration.
After the prosecutor reiterated his arguments, the juvenile court indicated that it had "a really, really hard decision." The court had a concern for public safety because the "particular facts" surrounding the molestation were "so disturbing and concerning." The court knew that if it committed N.B. he would "receive sexual therapy from a renown[ed] program." The court did not have confidence that N.B. could resolve his issues before he turned 21—i.e., in less than a year. It believed that the victim was particularly vulnerable in that she was N.B.'s sister and only seven years old and that N.B. took advantage of a position of trust as her older brother. The court also considered the circumstances that N.B. had committed no other law violations and had acknowledged wronging when interviewed by police.
The juvenile court ultimately found the "mental and physical conditions [and] qualifications of the subject render it probable that he will benefit from both reformatory discipline and sexual offender treatment and other treatment provided by the Division of Juvenile Justice pursuant to Welfare and Institutions Code section 734." The court declared the admitted offense (count 1 as amended) to be a felony. It indicated that N.B. would be required to register as a sex offender. The court dismissed the remaining counts. It committed N.B. to the DJF.
II
Discussion
N.B. argues on appeal that the trial court abused its discretion by committing him to the DJF because there was no evidence that such commitment would benefit him and less restrictive alternatives would not benefit him. A. Standard of Review
"The abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court's ruling under review. The trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious." (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712, fns. omitted.)
Under the substantial evidence standard of review, an appellate court reviews the record in the light most favorable to the findings of the trier of fact. (See In re George T. (2004) 33 Cal.4th 620, 630.) " ' " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.' " ' [Citation.]" (Id. at p. 631.)
While the abuse of discretion standard of review is "deferential, " it is "not empty." (People v. Williams (1998) 17 Cal.4th 148, 162.) "[I]t asks in substance whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts [citations]." (Ibid.) Thus, " ['] "[t]he 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." ' [Citation.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
"A merely debatable ruling cannot be deemed an abuse of discretion. [Citations.]" (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377.) B. Governing Law
Section 202 sets forth the general purposes of juvenile court law. Section 202, subdivision (a), states: "The purpose of [the chapter on Juvenile Court Law] is to provide for the protection and safety 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. If removal of a minor is determined by the juvenile court to be necessary, reunification of the minor with his or her family shall be a primary objective. If the minor is removed from his or her own family, it is the purpose of this chapter to secure for the minor custody, care, and discipline as nearly as possible equivalent to that which should have been given by his or her parents. This chapter shall be liberally construed to carry out these purposes."
The predecessors to section 202 that was enacted in 1984 (Stats. 1984, ch. 756, § 2, pp. 2726-2727) "favored juvenile court treatment 'in [the person's] own home.' [Citations.] Until this preference was removed from the statutory scheme, persons within the juvenile court's jurisdiction under section 602 received the most lenient disposition initially, and experienced more restrictive placements incrementally, after less restrictive options were tried. [Citations.]" (John L. v. Superior Court (2004) 33 Cal.4th 158, 184, fn. 10.)
Section 202, subdivision (b), provides in part: "Minors under the jurisdiction of the juvenile court as a consequence of delinquent conduct shall, in conformity with the interests of public safety and protection, receive care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances. This guidance may include punishment that is consistent with the rehabilitative objectives of this chapter." In this context, " 'punishment' means the imposition of sanctions" but "[i]t does not include retribution." (§ 202, subd. (e).) Under section 202, permissible sanctions include a commitment to the DJF. (§ 202, subd. (e)(5).)
"If a minor is adjudged a ward of the court on the ground that he or she is a person described by Section 602," the juvenile court may, in addition to other authorized orders, "[c]ommit the ward to the [DJF] if the ward has committed an offense described in subdivision (b) of Section 707 or subdivision (c) of Section 290.008 of the Penal Code, and is not otherwise ineligible for commitment to the division under Section 733." (§ 731, subd. (a)(4).) "The most restrictive placement [for a ward] is the [DJF]. (See §§ 731, 734.)" (In re Eddie M. (2003) 31 Cal.4th 480, 488; see In re Greg F. (2012) 55 Cal.4th 393, 404.)
One of the offenses described in section 707, subdivision (b), is "[a] lewd or lascivious act as provided in subdivision (b) of Section 288 of the Penal Code." (§ 707, subd. (b)(6).) That offense is also included in Penal Code section 290.008, subdivision (c)(2).) Section 733 prohibits the commitment of a ward to DJF if "[t]he ward is under 11 years of age" (§ 733, subd. (a)), "[t]he ward is suffering from any contagious, infectious, or other disease that would probably endanger the lives or health of the other inmates of any facility" (§ 733, subd. (b)), or "[t]he ward has been or is adjudged a ward of the court pursuant to Section 602, and the most recent offense alleged in any petition and admitted or found to be true by the court is not described in subdivision (b) of Section 707 or subdivision (c) of Section 290.008 of the Penal Code" (§ 733, subd. (c)).
Section 734 provides: "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 will be benefited by the reformatory educational discipline or other treatment provided by the [DJF]." (Italics added.) "[A] commitment to [the DJF] must be supported by a determination, based upon substantial evidence in the record, of probable benefit to the minor." (In re Aline D. (1975) 14 Cal.3d 557, 567 (Aline D.).)
But "there is no absolute rule that a [DJF] commitment should never be ordered unless less restrictive placements have been attempted. [Citations.]" (In re Ricky H. (1981) 30 Cal.3d 176, 183 (Ricky H.); see In re Asean D. (1993) 14 Cal.App.4th 467, 473 ["a commitment to the [DJF] may be made in the first instance, without previous resort to less restrictive placements"].) On the other hand, "[t]he unavailability of suitable alternatives, standing alone, does not justify the commitment of a nondelinquent or marginally delinquent child to an institution primarily designed for the incarceration and discipline of serious offenders." (Aline D., supra, 14 Cal.3d at p. 567; see Ricky H., supra, at pp. 182-183.) "In order to commit a minor to the [DJF], the record must show that less restrictive alternatives would be ineffective or inappropriate. (In re Teofilio A. (1989) 210 Cal.App.3d 571, 576.)" (Superior Court (Lara), supra, 4 Cal.5th at p. 306.)
"The juvenile court may in its discretion commit persons subject to its jurisdiction to the [DJF], and the [DJF] may in its discretion accept such commitments." (§ 1736, see Cal. Code of Regs., tit. 15, rule 4170.5.) "The decision of the juvenile court may be reversed on appeal only upon a showing that the court abused its discretion in committing a minor to [the DJF]. [Citations.] An appellate court will not lightly substitute its decision for that rendered by the juvenile 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. [Citations.] 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. [Citations.]" (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.) C. Analysis
"Within 60 days of intake, the [DJF] shall provide the court and the probation department with a treatment plan for the ward." (§ 1766, subd. (c).) --------
N.B. was within the class of wards whom the juvenile court could commit to the DJF based on their commission of a specified sex offense. (See § 731, subd. (a)(4); see also § 733, subd. (c).) The gravity of the molestation admitted by N.B. was undisputed.
In determining the proper disposition, the juvenile court was required to consider, among other things, "the circumstances and gravity of the offense committed by the minor" (§ 725.5) as well as the probation officer's report (see § 706). In a juvenile wardship case, "statutory mandates and good sense require consideration of all relevant circumstances when deciding the level of restriction to be imposed, even those related to dismissed allegations." (In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684.)
The psychologist retained by the defense, whose evaluation was relied upon by probation officer Maningo and summarized in the probation report, acknowledged that "certain aspects of the offense [were] jarring" and recommended further evaluation of his "psychosexual functioning and development." Maningo recognized that N.B.'s sexual misconduct was "egregious" and closer to the "extreme end of the spectrum" of seriousness. There was evidence that N.B. had admitted to police that he had watched sexual materials on the Internet, that he had been interested in bondage, that he had tied his approximately seven-year-old sister's hands and feet together, that he had touched her vagina with his hands and penis, that he had masturbated in front of her, that he had had her touch his penis, and that he had tried to insert his penis into her vagina but had stopped when he realized it would not fit.
In the probation report, Maningo recognized that a commitment to the DJF was a "viable option" but nevertheless concluded it was not an appropriate disposition. At the disposition hearing, however, he acknowledged that the DJF's sexual assault counseling program was "a quality program" and N.B. would receive sexual assault counseling if committed to the DJF.
The evidence that N.B. needed sexual offender treatment was uncontroverted. Section 727.6 states that "[w]here any minor has been adjudged a ward of the court for the commission of a 'sexually violent offense,' as defined in Section 6600, and committed to the [DJF], the ward shall be given sexual offender treatment consistent with protocols for that treatment developed or implemented by the [DJF]." (See ante, fn. 2.) A forcible lewd and lascivious act (Pen. Code, § 288, subd. (b)(1)) is a "sexually violent offense," as defined in Section 6600. (See People v. Superior Court (Johannes) (1999) 70 Cal.App.4th 558, 565, fn. 10.)
Moreover, although he was taken into custody in October 2015, N.B. had not taken advantage of any of the programs available in jail to prepare him for reentry into the community, such as PACE's GED preparation or job readiness classes. To successfully complete the recommended 52-week, outpatient sexual offender treatment program with Dr. Momrow before he turned 21 years old, N.B. would need to attend a year of counseling sessions in less than a year. N.B. had not demonstrated that kind of motivation and sustained effort while in custody.
Maningo recognized that N.B. was already 20 years old and that the juvenile court would have jurisdiction over N.B. only until his 21st birthday if the recommended disposition were adopted by the court whereas the DJF could retain N.B. until his 23rd birthday. (See § 607; 1771, subd. (b).) Thus, a commitment to the DJF allowed for a longer period of sexual offender treatment and a possibly a greater opportunity for successful completion of the program than the proposed local placement with outpatient treatment.
This is not a case where the evidence failed to specify any specific DJF program that would provide probable benefit to a ward. (See In re Carlos J. (2018) 22 Cal.App.5th 1, 4, 14 [record lacked specific information regarding the programs at the DJF].) Further, the defense presented no evidence that that DJF's existing sexual offender treatment program was materially deficient or inappropriate for N.B., that there were aspects of a DJF commitment that might actually harm N.B. and the potential harm outweighed the potential benefit to him, or that the DJF's sexual offender treatment would not be timely available to N.B. for any reason, such as a long waitlist or a reduced program size due to understaffing or budget cuts.
The probation department's recommended disposition was somewhat sketchy and did not squarely address some of the identified concerns, such N.B.'s situational isolation, social inadequacy, or developmental immaturity. If N.B. were placed under probation supervision, it was uncertain where N.B. would live since his mother and siblings were living out of state (and he could not live with his sister in any case) and his father was employed and living out of the area. No definite housing had been found for N.B. If the court adopted the recommended disposition, it was not clear that N.B. would have sufficient supervision, structure, support, and socialization for the recommended disposition to be effective. It appeared he might well be living by himself in an apartment for the first time and probation would check on him only once a month. There was no showing that any of N.B.'s extended family members who lived in or near Santa Clara County wished to and were able to provide ongoing personal support and supervision of N.B. Further, it was not clear how N.B. would get to his appointments and other places since he had no driver's license or car. The juvenile court could reasonably conclude that the recommended disposition was not an effective or appropriate disposition in this case.
The juvenile court was required to consider the probation report but not to necessarily adopt its recommendations. (See § 706; cf. People v. Warner (1978) 20 Cal.3d 678, 683, superseded by statute on another ground as recognized in People v. Douglas (1999) 20 Cal.4th 85, 92, fn. 6.) The court acted within the bounds of reason in concluding "the mental and physical condition and qualifications of the ward" were "such as to render it probable that he will be benefited by" the sexual offender treatment provided by the DJF. (§ 734; see § 727.6.)
DISPOSITION
The order committing N.B. to the California Department of Corrections and Rehabilitation, Division of Juvenile Facilities is affirmed.
/s/_________
ELIA, ACTING P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.