Opinion
D076156
03-17-2020
In re RICHARD H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. RICHARD H., Defendant and Appellant.
Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles Ragland, James H. Flaherty III, and Amanda Lloyd, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. J239768) APPEAL from a judgment of the Superior Court of San Diego County, Browder A. Willis, Judge. Affirmed. The request for judicial notice is denied. Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles Ragland, James H. Flaherty III, and Amanda Lloyd, Deputy Attorneys General, for Plaintiff and Respondent.
This appeal is from a dispositional order of the juvenile court after a true finding that Richard H. (the Minor) had committed a forcible rape and had suffered several probation violations. In the dispositional order the Minor was committed to the Division of Juvenile Justice (DJJ). The Minor contends the court abused its discretion in committing him to DJJ. The Minor does not challenge the true finding on the rape offense.
Based on the record before us, we will find no abuse of discretion and affirm.
FACTS AND PROCEDURAL BACKGROUND
The underlying offense took place at a high school football game. The Minor took the victim into a bathroom stall and had sexual intercourse with her against her will, ignoring her requests for him to stop.
The procedural background begins with a true finding in 2017 when he stole a car. The Respondent's brief sets out an accurate summary of the lengthy procedural history that followed. We will incorporate the summary into the opinion for convenience.
Documentation of the Minor's criminal history began on February 15, 2017, when he stole a car, crashed it, and fled. He was adjudicated a ward of the court on March 9, 2017, and the juvenile court granted the Minor a term of probation. On July 31, 2017, the Minor admitted violating probation by using drugs and disobeying curfew. For the probation violation, the juvenile court committed him to the Short Term Offender Program. On October 24, 2017, the Minor again admitted violating probation by way of drug use. The court committed the Minor to the Breaking Cycles program. On March 12, 2018, the Minor again admitted violating probation by using drugs, disobeying curfew, and by absconding from the Breaking Cycles program. The court recommitted the Minor to the Breaking Cycles program.
On March 27, 2018, a new petition was filed against the Minor, this time alleging forcible rape. On May 7, 2018, the court ordered the Minor to participate in the Target program. On October 5, 2018, the Minor did not appear for a scheduled juvenile court hearing and a warrant was issued for his arrest. On November 8, 2018, the Minor admitted violating probation by testing positive for drug use and the court ordered him detained in Juvenile Hall. On December 14, 2018, following a contested jurisdictional hearing, the juvenile court found the forcible rape allegation true.
A dispositional hearing was conducted on January 31, 2019, and the juvenile court ordered the probation department to select a foster care placement, whether with a relative or a residential treatment facility. On February 19, 2019, the court committed the Minor to a residential treatment facility, the Starshine Treatment Center (Starshine) in San Bernardino. On May 6, 2019, an arrest warrant was issued for the Minor after he absconded from Starshine. The court ordered that upon the Minor's apprehension, the Minor be detained in Juvenile Hall. On June 6, 2019, the Minor admitted absconding from Starshine, and failing to remain law abiding when his whereabouts were unknown.
A contested dispositional hearing was held on June 27, 2019, where a senior probation officer testified as to the Minor's aforementioned failures during his period of probation. She detailed the Minor's out-patient treatment at Turning The Hearts and then McAlister Institute, family therapy at Wrap-Around Services, in-patient treatment at McAlister Institute, Target counseling through the Nueva Vista research foundation, two attempts at Breaking Cycles, home supervision, and a Stop commitment. The probation officer also testified as to the Minor's history of violence and aggression, both in school and within custodial settings. Specifically, she testified that the Minor had been involved in three "physical altercations or fights" within the past month, and that he had previously suffered "numerous incidents of school suspensions relating to physical altercations." She stated that after the Minor absconded from the Starshine residential treatment facility in San Bernardino, he returned to San Diego where he brandished a gun and threatened the victim in his rape case, "tell that bitch that I'm coming for her."
Regarding the Minor's treatment needs, the probation officer testified that the Minor required mental health counseling, anger management counseling, sex offender treatment, substance abuse treatment, and an individualized education plan. The probation officer noted that the Starshine program was unwilling to accept the Minor back into its program. On cross-examination, the probation officer agreed that either an out-of-state residential treatment facility or DJJ could competently treat the Minor's many needs. The officer testified that she believed that the Minor should be afforded another chance at a residential treatment facility, but agreed that such facilities are not "locked" facilities, such that the Minor could simply "walk out the door and abscond should he chose to do so."
A DJJ clinical psychologist, J.SP., testified as to DJJ's ability to treat the types of needs that the probation officer recommended for the Minor. J.SP. did not personally examine the Minor. J.SP. agreed that a residential treatment facility could provide the same treatment to the Minor that DJJ could provide. J.SP. further stated that minors under the age of 18 were housed separately from those serving commitments who are over the age of 18 at DJJ.
At the defense's request, the juvenile court also considered the report of a clinical psychologist, EWO. EWO reported that following his examination of the Minor, he believed that the Minor had exhibited promising insight into his inappropriate behaviors. EWO opined, however, that the Minor should "not be released into the community[,]" but should be placed into a "locked secure" residential treatment facility because of his "poor judgment and impulse control." EWO recommended against a DJJ commitment because the Minor "presents with many other difficulties other than one time sex offense[.]"
After considering the evidence, the juvenile court ordered a DJJ commitment. Citing psychologist EWO's statement that "[o]ver the past two years [the Minor] has developed a repetitive and persistent pattern of behavior in which the basic rights of other are ignored[,]" the court stated that all of the evidence presented to it supported the conclusion that "a locked facility [was] necessary." The court ruled that a DJJ commitment was in the Minor's best interest and that DJJ was well equipped to meet the Minor's needs. The court also ordered that the Minor comply with sexual offense registration as required by Penal Code sections 290 and 290.008.
DISCUSSION
At the outset of our analysis of this case, we express some discomfort with the Minor's briefing. The briefs state all facts and events in the light most favorable to himself. Much of the argument presented is an attack on the legitimacy of DJJ as an institution. The argument relies on articles, reports and a press release, which are not part of the record and were never considered by the juvenile court. We decline to consider such materials, or the arguments based upon them. We deny the request to take judicial notice of such materials.
The Minor makes a passing statement that trial counsel was ineffective for not introducing such material in the trial. The brief does not contain a persuasive argument as to why counsel should have introduced such material and why its absence caused prejudice. The Minor has not met the burden of Strickland v. Washington (1984) 466 U.S. 668, to show both error and prejudice. On this silent record, any claim the Minor may have that counsel was ineffective will have to await a petition for habeas corpus where a full record can be developed if appropriate. (People v. Mendoza Tello (1997) 15 Cal.4th 264.)
A. Legal Principles
Juvenile court commitment orders are reviewed for abuse of discretion. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330.) Where the court's decision is based on its assessment of factual materials, we review the factual foundation under the substantial evidence standard of review. (In re A.M. (2019) 38 Cal.App.5th 440, 448-449.)
When a court considers a placement such as the one in this case the court must consider: "(1) the age of the minor, (2) the circumstances and gravity of the offense committed by the minor, and (3) the minor's previous delinquent history." (Welf. & Inst. Code, § 725.5) We will uphold a DJJ commitment where there is "evidence in the record demonstrating both a probable benefit to the minor by a [DJJ] commitment and the inappropriateness or ineffectiveness of less restrictive alternatives." (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396; § 734.)
All further statutory references are to the Welfare and Institutions Code unless otherwise specified. --------
It is not absolutely necessary that less restrictive placements be tried and demonstrated as ineffective in order to find the more restrictive placement to be appropriate. (In re Teofilio (1989) 210 Cal.App.3d 571, 577.)
B. Analysis
At the disposition hearing, the trial court considered the probation reports, the report of the defense expert, and the testimony of a probation officer and a representative of DJJ. The testimony explored the various treatment options both at DJJ and other programs. The witnesses discussed safety issues for the Minor at DJJ as the Minor was 15 years old at the time (to turn 16 five weeks later).
The court determined the Minor needed to be in a locked facility. He had absconded from several placements, including the Starshine Treatment Center in San Bernardino. When he left that facility, he obtained a weapon. He was heard to say he was coming after the "Bitch," referring to the rape victim. The Minor had difficulty with aggression and violence and had been involved in a number of physical altercations at Juvenile Hall and other places.
Based on the testimony and reports, the trial court rejected a recommendation to return the Minor to the unlocked program from which he had recently absconded. The consensus from the evidence was that the Minor would likely have to go out of state or to DJJ. The court concluded other placements had failed and that DJJ was the best choice to meet the Minor's needs for treatment and the public need for safety.
The Minor also argues placement at DJJ was improper because on his release he will have to register as a sex offender for some period of time. The Legislature has mandated such registration upon release from DJJ for persons who were committed for sex offenses such as rape. (Pen. Code, § 290.008.) Such requirement is a Legislative directive not a discretionary choice for the trial court judge. Nothing in this record supports an argument that an otherwise valid commitment to DJJ becomes inappropriate due to the post-release registration mandate.
We are satisfied the court seriously considered both DJJ and less "restrictive" placements. The court's choice, with sound reasons stated, was well within the broad discretion afforded to juvenile court judges.
DISPOSITION
The dispositional order committing the Minor to DJJ is affirmed.
HUFFMAN, J. WE CONCUR: McCONNELL, P. J. HALLER, J.