Opinion
F086032
11-09-2023
In re O.J., a Person Coming Under the Juvenile Court Law. v. O.J., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
Linda K. Harvie, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County No. JJD073418. John P. Bianco, Judge.
Linda K. Harvie, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Counsel for appellant O.J. has submitted a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), asking this court to conduct an independent review of the record on appeal. Although we offered O.J. the opportunity to present his own brief on appeal through a letter, he has not responded.
Pursuant to Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record. Following our Supreme Court's direction in Kelly, we provide a brief description of the facts and the procedural history of the case. (Kelly, at p. 110.) Finding no arguable error that would result in a disposition more favorable to O.J., we affirm.
PROCEDURAL SUMMARY
On March 23, 2021, a Welfare and Institutions Code section 602 petition was filed alleging that on October 31, 2020, O.J. committed sodomy with a person under the age of 14 (victim 1) (Pen. Code, § 286, subd. (c)(2)(b), a felony; count 1). O.J., who was 14 years old at the time of this alleged act and was already the subject of a section 300 dependency petition, was not detained. During a pretrial conference held on May 18, 2021, the juvenile court concluded that because O.J. was charged with an offense that came within Penal Code section 707, subdivision (b), he would not be eligible for informal probation.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
Thereafter, several pretrial hearings were held during which the juvenile court addressed issues involving a section 241.1 staffing report prepared for O.J. O.J. appeared at each of these hearings either in person or telephonically, until January 18, 2022, when he failed to appear. A bench warrant was then issued continuing or trailing all matters.
On January 21, 2022, a first amended section 602 petition was filed against O.J., again containing the same charge for sodomy in count 1, but adding a new charge of committing a lewd and lascivious act on a child under the age of 14 years (Pen. Code, § 288, subd. (a), a felony; count 2). This new charge was alleged to have also been committed against victim 1, and on the same date as the act of sodomy charged in count 1.
O.J.'s next appearance in juvenile court was on September 27, 2022, when the bench warrant was recalled, and it was revealed he was now in detention in the Tulare County juvenile detention facility.
On October 11, 2022, a second amended section 602 petition was filed against O.J., adding two new charges. In addition to the original two counts alleged in the first amended petition, O.J. was now alleged to have committed forceable rape (Pen. Code, § 261, subd. (a)(2), a felony; count 3), and a lewd and lascivious act against a child under the age of 14 years (Pen. Code, § 288, subd. (b)(1), a felony; count 4). These new counts were alleged to have been committed against a different minor, victim 2, on March 12, 2022.
After O.J. denied the allegations of the second amended section 602 petition and declined to waive time, the contested jurisdictional hearing was set for November 4, 2022. However, on November 4, 2022, the juvenile court found good cause to continue the hearing date due to the unavailability of a Department of Justice expert witness. As a result, the contested jurisdictional hearing was held on November 17 and 18, 2022. At the end of the hearing on November 18, the court found true the allegations contained in counts 1 through 4, and set a hearing date of December 6, 2022, for the dispositional hearing. That hearing was eventually continued to March 7, 2023. At the end of this hearing, the court ordered O.J. to be placed at a secure youth treatment facility (SYTF). After ordering additional terms, the court imposed a maximum term for O.J. of 33 years, less 191 days credit for time served.
A timely notice of appeal was then filed on behalf of O.J.
FACTUAL SUMMARY
The Contested Jurisdictional Hearing
The Tulare County juvenile court first became involved with O.J. when he and his siblings were declared dependents of the court in September 2016, and were placed into foster care. O.J. was eventually returned to the care of his mother in November 2017. However, while the family was still under a case management plan, numerous reports were made alleging neglect and abuse in the home. Sometime soon after May 2018, following an allegation of a physical altercation with his mother, O.J. was taken out of the home and placed in a group home. O.J. continued in a variety of placements, including group homes and short-term residential therapeutic programs before he was finally placed in the regional SYTF.
These initial facts concerning the dependency are taken from the section 241.1 staff report that was filed with the juvenile court on May 23, 2021.
The earliest section 241.1 staff report in the record before us details various allegations of abuse and general neglect by O.J.'s mother resulting in a variety of foster home placements for O.J. and his siblings.
The facts underlying the charges made in the second amended petition involved two separate incidents and two separate victims. Counts 1 and 2 contained allegations that occurred on October 31, 2020, and involved victim 1. Victim 1 met O.J. on a social media app and would communicate with him periodically. Many of these communications would involve "texting and [video chatting] all the time." At some point, victim 1 snuck out to see O.J. when she was 12 years old, approximately one year before the incidents alleged in the section 602 petition. This resulted in her getting into "really big trouble" with her mother, who took her phone away and told her she could no longer have any contact with O.J.
At some point, victim 1 and O.J. resumed communicating, even though she now had a girlfriend at the time. Victim 1 testified that she and O.J. would text occasionally and would then meet at a local library. On October 31, 2020, they had texted, with O.J. telling victim 1 that he wanted "to hang out for a little bit before [she] had to housesit for [her] grandma ... [s]o [they] went to the bridge next to the ... library and ... were hanging out there." Victim 1 explained that O.J. was in town, away from the group home where he was living, to visit his family. Victim 1 admitted they "made out" a bit but insisted that was the extent of their interaction at that time. When O.J. learned victim 1's grandmother lived across town and she would have to walk, he offered to go with her because it was dark, and the walk would take about an hour. Because she considered O.J. her "best friend," she agreed.
Once they reached the grandmother's house, victim 1 agreed O.J. could hang out for a little while. They put on a TV show and sat on the couch. Soon O.J. started touching victim 1, "getting on top of [her] a little bit." Victim 1 testified that even though she pushed O.J. off and told him no, he kept going. O.J. picked victim 1 up and put her on a bed that was in the living room, again getting on top of her and trying to unbutton her jeans to take them off. Victim 1 explained that at this point she was on her back as O.J. held her down by her wrists. Victim 1 then testified O.J. was able to get her jeans off, "not all the way off, but they were off enough." O.J. then flipped victim 1 onto her stomach and committed an act of sodomy, along with another lewd act, while she cried. Victim 1 stated O.J. then got off of her, acted as if everything was normal, and walked out of the house.
Counts 3 and 4 reflect an incident that occurred on March 12, 2022, between O.J. and victim 2, who was 11 years old at the time. Victim 2 and her sister went to their father's girlfriend's house, where other boys and girls were hanging out in the living room, including O.J. Victim 2 testified this was the first time she met O.J. and that he was nice to her. At some point, victim 2 and O.J. went upstairs to the bathroom where O.J. hurt her by "what he did to me." When victim 2 walked out of the bathroom, her pants were pulled down. In her testimony, victim 2 explained that "something bad" happened to her in the bathroom, and she didn't want to say what the bad thing was, but managed instead to spell out "S-E-X." Victim 2, who was now 12 years old, had trouble verbalizing what happened to her during the contested hearing, but stated that she told officers and a woman everything. Several witnesses who were at the house at the time testified that victim 2 looked scared when she came out of the bathroom.
Visalia police officer Samantha Elias testified she responded to a call on the night of March 12, 2022, and that victim 2 told her she didn't like how O.J. touched her. Victim 2 also told Elias that O.J. put his hand over her mouth and then put his penis in her vagina. A nurse she saw at a hospital provided an observation that victim 2 was traumatized, and that she described an act of oral copulation along with the rape. Two criminologists testified that there was strong support for the conclusion O.J.'s DNA contributed to the fluids found on a swab taken from victim 2 soon after the incident.
The Contested Dispositional Hearing
The only witness who testified at the hearing held on March 30, 2023, was Timothy Zavala, who was called to testify on behalf of O.J. Zavala stated he was a licensed clinical social worker, the current executive director of the Tulare Youth Services Bureau, and was also in private practice. Zavala testified he had experience evaluating and treating adolescents with sexual behavior problems, and treated victims of sexual abuse, specializing in trauma resolution. Following additional questions addressing his background, the juvenile court qualified Zavala as an expert.
Zavala had been asked to perform a sexual evaluation of O.J., which included a risk assessment, an evaluation of his mental health status, and to provide treatment recommendations. Zavala also listed the tests and assessments he administered to O.J. and explained the results. Zavala believed O.J. needed a good sex offense-specific treatment program that also would address his depression, anxiety, and trauma history. Zavala also believed O.J. needed to be in a place with constant supervision, especially considering the crimes he had been found to have committed. Finally, Zavala concluded a long-term placement would be best for O.J., generally in the range of 18 to 24 months. Zavala believed this could all be accomplished in a facility in Tulare County.
When issuing its ruling, the juvenile court stated it had reviewed all the documents considered by Zavala, along with the section 241.1 staffing reports that were already part of the record. The court then determined that a placement in a regional SYTF was best for O.J., as it would provide the needed treatment. The court then ordered that the maximum term of commitment for O.J. was 33 years, less 191 days credit for time already served.
Placement in such a facility might result in O.J. being confined there until he is at least 23 years old. (See § 875, subd. (c)(1)(A).)
DISCUSSION
Having carefully reviewed the entire record, we conclude there is no arguable issue on appeal. (Wende, supra, 25 Cal.3d at pp. 441-443.)
DISPOSITION
The judgment is affirmed.
[*]Before Smith, Acting P. J., Meehan, J. and DeSantos, J.